Opinion
No. 38464-7-II.
January 14, 2010.
Appeal from a judgment of the Superior Court for Thurston County, No. 08-1-00572-4, Christine A. Pomeroy, J., entered October 16, 2008.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
Joshua Rhoades appeals his conviction for second degree malicious mischief and violation of a no-contact order, a gross misdemeanor, arguing prosecutorial misconduct, trial court evidentiary and instructional error, and cumulative error. He also makes additional arguments pro se. We affirm.
FACTS
On December 11, 2007, Rhoades, Steven Romero, Richard Molina, Luis Martinez-Meza, and Javier Martinez arrived at Nadine Chenot's residence. A no-contact order signed by Rhoades prevented him from having contact with Chenot. At approximately 1:50 a.m., he and Martinez went to Wal-Mart where Rhoades purchased five cans of spray paint. After returning to Chenot's residence, Martinez and Romero left to spray-paint graffiti, an action known as "tagging." I Report of Proceedings (RP) at 177.
Around 3:00 a.m., a police officer investigating the graffiti heard a commotion at Chenot's residence; saw an individual standing in the doorway; and heard the individual say, "Oh, [expletive]," before going back inside. I RP at 84. Police officers went to her residence to inquire about the graffiti spray-painted throughout the neighborhood. The officers noticed a can of black spray paint near a garbage can in her driveway and observed similar cans inside the residence. The nozzle of the can in the driveway was still wet with black paint that matched the graffiti in the area.
The officers took Romero, Molina, Martinez-Meza, and Martinez into custody. The officers did not locate Rhoades at Chenot's residence. While in juvenile detention, Martinez identified Rhoades as the individual who purchased the spray paint.
The State charged Rhoades with second degree malicious mischief and violation of a no-contact order. Before trial, Rhoades moved for a continuance and for substitution of defense counsel. The trial court granted the continuance. At a later status hearing, Rhoades' proposed new counsel informed the trial court that it had not signed the substitution order. His original defense counsel appeared and addressed the trial court regarding the attempted substitution. The trial court granted the motion for substitution on the condition that either substitute counsel or original counsel would be prepared for trial the following week.
On the day of trial, Rhoades' original counsel appeared, indicated that substitute counsel was not prepared, and sought a continuance. The trial court stated that it had already ruled on the issue and that trial would proceed.
At trial, Sergeant Patrick Fitzgerald testified based on his training and experience. He identified the four individuals and Rhoades as members and associates of a local gang. Specifically, he identified Rhoades and Martinez as full members and Romero as an associate or affiliate. He testified that, in order to obtain full membership, an associate or affiliate must perform work for the gang, including tagging. He also testified that the graffiti found in Chenot's neighborhood was associated with this gang. The State presented a video surveillance tape from Wal-Mart showing two individuals purchasing the spray paint. Fitzgerald testified that he had previously viewed the tape and had identified Rhoades as one of the individuals purchasing the spray paint. Because of the tagging, damage to property in the neighborhood exceeded $250.
Chenot testified that Rhoades was present at her residence. She also testified that he knew the no-contact order prohibited him from having contact with her. Finally, she testified that Rhoades and Martinez left her house together to "go to the store." I RP at 28.
Martinez testified that he was the other individual with Rhoades when Rhoades purchased the five cans of spray paint. The trial court denied Rhoades' request to admit a juvenile adjudication of guilt for Martinez taking a motor vehicle without permission for impeachment purposes.
At the close of trial, the court instructed the jury on accomplice liability. Defense counsel did not take exception to the jury instruction.
Based on the accomplice liability instruction, the State argued in rebuttal,
So Javier Martinez. You heard, well, he said one thing here, one thing here. There's never been any contradiction that when he testified in court, whether it was here or Mr. Molina's trial. Mr. Molina was convicted; he's not going to be here. He said the one thing that matters in this case. Joshua Rhoades was the person that took him to Wal-Mart and Joshua Rhoades is the person that bought the spray paint. He's testified in two trials under oath.
IIRP at 300. Defense counsel did not object to the argument or move to strike.
The jury convicted Rhoades of both charges. He appeals.
ANALYSIS Confrontation Rights
Rhoades first contends that the trial court erred in refusing to admit Martinez's juvenile adjudication of guilt for taking a motor vehicle without permission. He asserts that the trial court violated his rights to confrontation and to present a defense.
We review a trial court's evidentiary decisions for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. Stenson, 132 Wn.2d at 701.
Rhoades cites Davis v. Alaska, 415 U.S. 308, 315-18, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), arguing that the trial court violated his right to confrontation. But the Davis court held only that prior juvenile adjudications are admissible to show bias or motive in testifying. State v. Gerard, 36 Wn. App. 7, 11, 671 P.2d 286 (1983). Here, defense counsel offered nothing more than impeachment as a reason for admitting Martinez's juvenile adjudication of guilt. Thus, the trial court's refusal did not implicate Rhoades' right to confrontation. See Gerard, 36 Wn. App. at 11.
Furthermore, under ER 609(d), evidence of juvenile adjudications of guilt generally is not admissible, even for impeachment. But the trial court may allow evidence of a juvenile adjudication if it is "satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence." ER 609(d). In Gerard, Division One noted that, under its plain language, "ER 609(d) requires a positive showing that the prior juvenile record is necessary to determine guilt." 36 Wn. App. at 12 (footnote omitted). It reasoned, "The burden was on Gerard to present reasons other than impeachment to demonstrate that the evidence was 'necessary for a fair determination.'" Gerard, 36 Wn. App. at 12 (quoting ER 609(d)). Because Gerard failed to present a reason other than impeachment, Division One concluded that the trial court did not abuse its discretion in refusing to admit the juvenile adjudication of guilt. Gerard, 36 Wn. App. at 12.
Here, Rhoades failed to offer any reason other than general impeachment for admitting Martinez's juvenile adjudication of guilt. Moreover, the testimony of Chenot and Fitzgerald corroborated Martinez's testimony that Rhoades was present at Wal-Mart with him. The trial court did not abuse its discretion in refusing to admit the juvenile adjudication of guilt because it was unnecessary for a fair determination of the issue of guilt or innocence. ER 609(d).
Prosecutorial Misconduct
Rhoades further contends that the prosecutor committed misconduct when he remarked on Molina's conviction in connection with the tagging. Rhoades asserts that the comment improperly bolstered Martinez's credibility and impermissibly implied facts not in evidence.
A defendant claiming prosecutorial misconduct must show both improper conduct and resulting prejudice. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). Prejudice exists where there is a substantial likelihood that the misconduct affected the verdict. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003); State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). A prosecutor improperly comments when he or she encourages a jury to render a verdict on facts not admitted into evidence. State v. O'Neal, 126 Wn. App. 395, 421, 109 P.3d 429 (2005).
But defense counsel's failure to object to the misconduct at trial constitutes waiver on appeal unless the misconduct is "'so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice'" and is incurable by a jury instruction. Fisher, 165 Wn.2d at 747 (quoting State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006)) (internal quotation marks omitted). Here, even assuming an improper reference, it does not rise to the level of being flagrant and ill-intentioned. Rhoades' argument fails.
Sufficiency of the evidence
Rhoades next contends that insufficient evidence supports his conviction for second degree malicious mischief on an accomplice liability theory because the evidence shows only that he bought some spray paint. He argues the State failed to demonstrate a sufficient nexus between him and the malicious mischief.
Sufficient evidence supports a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime proved beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). On appeal, we draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. Hosier, 157 Wn.2d at 8. In the sufficiency context, we consider circumstantial evidence as probative as direct evidence. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We may infer specific criminal intent of the accused from conduct that plainly indicates such intent as a matter of logical probability. Goodman, 150 Wn.2d at 781. We defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
A person commits second degree malicious mischief when he knowingly and maliciously "[c]auses physical damage to the property of another in an amount exceeding two hundred fifty dollars." Former RCW 9A.48.080(1)(a) (1994).
RCW 9A.08.020, defining criminal accomplice liability, provides in part:
(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it.
To establish accomplice liability, the State had to prove more than the defendant's physical presence at the scene and assent to the crime committed. In the Matter of the Welfare of Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979). "One does not aid and abet unless, in some way, he associates himself with the undertaking, participates in it as in something he desires to bring about, and seeks by his action to make it succeed." State v. J-R Distribs., Inc., 82 Wn.2d 584, 593, 512 P.2d 1049 (1973). Thus, the defendant must be ready to assist in the crime. State v. Luna, 71 Wn. App. 755, 759, 862 P.2d 620 (1993).
Here, the State produced sufficient evidence to convict Rhoades as an accomplice to second degree malicious mischief. The video surveillance tape and the testimony of Martinez and Chenot established that Rhoades purchased five cans of spray paint at approximately 1:50 a.m. Fitzgerald's testimony established that Rhoades, Molina, Martinez-Meza, Martinez, and Romero were all members or wanted to be members of a local gang and that one method of obtaining gang membership was tagging. The State also proved damage in excess of $250 from the tagging. Drawing all reasonable inferences in favor of the State, it produced evidence sufficient to allow a rational trier of fact to conclude Rhoades knowingly encouraged or aided the malicious mischief.
To-Convict Jury Instruction
Rhoades next contends the trial court unconstitutionally omitted the mental element that a defendant "knowingly" violates the restraint provisions of a no-contact order from its to-convict instruction to the jury. 11 Washington Practice: Washington Pattern Jury Instruction: Criminal 36.51, at 364 (3d ed. 2008) (WPIC). The State concedes that, two months before trial, the jury instruction used, WPIC 36.53, had been merged with former WPIC 36.51, at 341 (2d ed. 2005), which added the element that a defendant knowingly violates a no-contact order. See WPIC 36.53, at 646 (3d ed. 2008).
We begin our discussion by noting that defense counsel failed to follow CrR 6.15. Counsel did not take exception to the instruction below, nor did he propose an instruction based on the current WPIC.
In State v. Hogan, 145 Wn. App. 210, 220, 192 P.3d 915 (2008), we held that the elements of former RCW 26.50.110(1) (2000) included: "(1) the existence of an order under this chapter or others, including chapter 10.99 RCW; (2) the restrained party knows of the order; [and] (3) the restrained party violates the order." The trial court's instruction to the jury required the State to prove beyond a reasonable doubt that Rhoades violated the provisions of the protection order by contacting Chenot, that Rhoades knew of the protection order, and that the acts occurred in Washington. The to-convict instruction was proper.
We also concluded in Hogan that the elements of RCW 26.50.110(1) included "arrest is required under RCW 10.31.100(2)(a) or (b)." 145 Wn. App. at 220. We noted, however, that the legislature amended RCW 26.50.110(1) in 2007 to remove the cross-reference to RCW 10.31.100(2) and, thus, eliminated this element. Hogan, 145 Wn. App. at 215.
Cumulative Error
Rhoades contends that the cumulative effect of the trial court's errors justify reversal because they deprived him of a fair trial. Because the trial court did not commit any errors, his argument fails.
Statement of Additional grounds
Rhoades raises additional claims pro se in his statement of additional grounds (SAG). First, he argues that the prosecutor's reference to Molina's conviction prejudiced him and requires a new trial. We discussed this issue above and do not repeat our analysis.
RAP 10.10(a).
Rhoades cites non-binding case law from the Fifth and Tenth Circuits to support his argument. He also cites to Eslaminia v. White, 136 F.3d 1234 (9th Cir. 1998), for the proposition that "[j]ury exposure to facts not in evidence deprives defendant of rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment." SAG at 3. But the Eslaminia court held only that a tape recording of a police interview with the defendant's brother, which was not admitted into evidence but was listened to by the jury and which bore on the credibility of key witnesses, was prejudicial because credibility was the central issue. Eslaminia, 136 F.3d at 1235, 1237. Eslaminia does not apply here.
Second, Rhoades contends he received ineffective assistance of counsel on multiple grounds. To demonstrate ineffective assistance of counsel, the defendant must establish that counsel's deficient performance prejudiced him. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
Rhoades argues defense counsel failed to honor his request to file a motion for severance of his charges and failed to have a private investigator to investigate certain witnesses and other matters. He also contends defense counsel failed to file a motion or object to Chenot testifying based on husband-wife privilege. These arguments rely on matters outside the record on appeal, such as private conversations he had with his attorney and his knowledge of unnamed witnesses who did not testify at trial. Furthermore, the record does not clearly indicate whether the privilege would have applied. The appropriate method to raise such arguments is a personal restraint petition. RAP 16.4.
Chenot testified that she changed her name from Chenot to Rhoades at some point since July 2008. But she also testified Rhoades was her husband at the time of the incident in question.
Rhoades also argues defense counsel was deficient by failing to ensure the trial court signed the motion granting substitution of counsel. But his original counsel later appeared before the trial court and argued for substitution, which the trial court granted. Rhoades' argument fails.
Third, Rhoades contends the trial court denied his right to counsel of choice by refusing to grant a continuance on the day of trial. We review the decision whether to grant a continuance for abuse of discretion. State v. Flinn, 154 Wn.2d 193, 199, 110 P.3d 748 (2005). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. Flinn, 154 Wn.2d at 199.
Here, the trial court granted a continuance once based, in part, on accommodating Rhoades' substitution motion. The trial court did not abuse its discretion by denying a further continuance.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and VAN DEREN, C.J., concur.