Opinion
No. 25622-7-III.
October 23, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-04207-0, Harold D. Clarke III, J., entered October 23, 2006.
Affirmed by unpublished opinion per Sweeney, C. J., concurred in by Brown and Stephens, JJ.
This appeal follows Edward A. Rodriguez's conviction for taking a motor vehicle without permission in the second degree. He argues that the prosecutor's misstatement of the law during closing argument contributed to his conviction. We disagree and therefore affirm his conviction.
FACTS
Edward Rodriguez drove a black Ford Taurus that had recently been reported stolen. Police stopped him. The State charged Mr. Rodriguez with taking a motor vehicle without permission in the second degree.
Dennis Jones was the owner of the car. He testified that on October 29, 2005, he had been at a party where he lost his car keys, got into a fight, and was arrested. As he was being led away, he saw Mr. Rodriguez and told him that if his keys were found, they should be given to the owner of the house. He did not know Mr. Rodriguez. Mr. Jones testified that he did not give anyone permission to drive his car. He reported his car as stolen after getting out of jail. He made that report after catching a "glimpse of it rolling down the street." Report of Proceedings (RP) at 29.
Mr. Rodriguez testified that he had been at the same party as Mr. Jones, but had left with his friend, Tamara, when the fight broke out. They saw Mr. Jones as they drove away. Mr. Rodriguez did not know Mr. Jones, but Tamara did. Mr. Jones banged on Tamara's car window, and she let him into the back seat. Mr. Jones told Mr. Rodriguez to find his keys and bring his car to a gas station down the street. Mr. Rodriguez did so, but when he arrived Mr. Jones was being arrested. Mr. Rodriguez testified he "hung onto" the car, planning to wait until Mr. Jones got out of prison.
Officer Jeff McCollough stopped Mr. Rodriguez and arrested him for driving a stolen car. Mr. Rodriguez then told Officer McCollough that he had been driving the vehicle for the past few days, and that on November 2 he had seen Mr. Jones come running toward the car, yelling that he wanted his car back. Mr. Rodriguez told Officer McCollough that he simply drove away.
Detective Craig Wendt testified that he showed Mr. Jones a photo montage of possible suspects. Mr. Jones picked out Mr. Rodriguez.
The court instructed the jury that:
A person commits the crime of taking a motor vehicle without permission when, without permission of the owner or person entitled to possession he intentionally takes or drives away any automobile or motor vehicle that is the property of another.
Clerk's Papers (CP) at 26.
To convict the defendant of the crime of taking a motor vehicle without permission, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 2nd day of November, 2005, the defendant took or drove away an automobile without permission of the owner or person entitled to possession;
(2) That the defendant was acting intentionally;
(3) That the automobile was the property of another; and
(4) That the acts occurred in the State of Washington.
CP at 27. Mr. Rodriguez did not object to these instructions.
The prosecutor commented during argument:
Now, the problem is, who do you believe?
Mr. Jones says, hey, my keys are on the lawn, take them up to the owner of the house, or something to that effect?
Or, is it as the defendant testified, Take my motor vehicle, take my car to the gas station and I will get bit later?
I submit to you that it doesn't matter. That is all the 29th. He's charged with taking a motor vehicle on November the 2nd. The 2nd is when Mr. Jones saw him, said, hey, I want my car back. He didn't. He drove away.
Look at your jury instructions, it says November 2nd.
Now, I think the fact that he didn't have permission, and he knew he didn't have permission even before that, is a factor deciding whether or not he thought or could have thought in any way, shape or form that he had permission to drive the car on the 2nd, the day before.
RP at 84. Mr. Rodriguez did not object to these comments at trial.
DISCUSSION
Mr. Rodriguez argues that the prosecutor committed misconduct by urging the jury to find him guilty based on law that had not been included in the jury instructions. He asserts that the single crime of taking an automobile without permission may be committed by two alternative means — either by actually taking the automobile without the owner's permission or by riding in it, knowing it to have been unlawfully taken. He argues that the prosecutor urged the jury to convict him based on the second alternative when the jury had only been instructed on the first alternative.
When a defendant claiming prosecutorial misconduct fails to object at trial, the error is generally waived on appeal. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994); RAP 2.5(a). We will only grant review if the comments rose to the level of a manifest constitutional error, i.e., they were so "flagrant and ill intentioned that [they] cause[d] an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury" and thereby deprived the defendant of a fair trial. Russell, 125 Wn.2d at 86; RAP 2.5(a); State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995); State v. Evans, 96 Wn.2d 1, 5, 633 P.2d 83 (1981); State v. Charlton, 90 Wn.2d 657, 664, 585 P.2d 142 (1978).
We review assignments of manifest constitutional error de novo. State v. Curtis, 110 Wn. App. 6, 11, 37 P.3d 1274 (2002). A prosecutor commits a manifest constitutional error when he makes improper statements of law during closing arguments that, in light of the evidence, create a high probability that the defendant's conviction is based on statements of law not contained in the jury instructions. State v. Davenport, 100 Wn.2d 757, 760-65, 675 P.2d 1213 (1984).
We review these assignments of error in the context of the prosecutor's entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998).
The crime of taking an automobile without permission in the second degree is governed by RCW 9A.56.075(1). The crime may be committed in two ways: by actually taking or driving away the automobile or by riding in it, knowing it to have been unlawfully taken. State v. Scott, 64 Wn.2d 992, 993, 395 P.2d 377 (1964). In this case, Mr. Rodriguez was charged with the first alternative.
"A person is guilty of taking a motor vehicle without permission in the second degree if he or she, without the permission of the owner or person entitled to possession, intentionally takes or drives away any automobile or motor vehicle, whether propelled by steam, electricity, or internal combustion engine, that is the property of another, or he or she voluntarily rides in or upon the automobile or motor vehicle with knowledge of the fact that the automobile or motor vehicle was unlawfully taken." RCW 9A.56.075(1).
In both the information and the jury instructions, the time frame in question is "on or about November 2, 2005." CP at 1, 27. The prosecutor argued that there is evidence in the record that on November 2, 2005, Mr. Jones saw Mr. Rodriguez in his car. Mr. Jones told Mr. Rodriguez that he wanted his car and that Mr. Rodriguez did not have permission to have the car. Mr. Rodriguez then drove away. RP at 84. This follows the elements instruction. It requires that the jury determine whether Mr. Rodriguez intentionally "drove away" an automobile that did not belong to him without permission of the owner on or about November 2 in the state of Washington.
Here, there is no dispute that Mr. Rodriguez drove the car. There is no dispute that the car did not belong to him. There is no dispute that everything took place in Washington. There is evidence in the record that Mr. Jones saw Mr. Rodriguez in the car on or about November 2, 2005, and that Mr. Jones tried to recover it. There is evidence that Mr. Jones told Mr. Rodriguez he did not have permission to drive the car. And there is evidence that Mr. Rodriguez then purposefully drove away from Mr. Jones.
The prosecutor properly summarized the facts and argued the law as it was given in the jury instructions. Therefore, there is no error, and we affirm Mr. Rodriguez's conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
BROWN, J.
STEPHENS, J.