Opinion
No. 36983-4-II.
February 18, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03984-1, Brian M. Tollefson, J., entered October 26, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Hunt, J.
Seghon Rorie appeals his judgment and sentence on multiple counts of assaulting his girl friend and his girl friend's mother. He raises arguments based on prosecutorial misconduct and trial court sentencing error. We affirm.
FACTS
We derive the facts from the trial evidence.
While riding home one evening with his live-in girl friend Kim Douglas and her daughter Adriana, Rorie grew agitated and declared that "the devil was trying to take his joy." 4 Report of Proceedings (RP) at 128. Rorie made similar statements several times and asked Douglas to pull the car over at least twice. He got out both times and appeared to pray on the roadside.
At the apartment, Douglas started to feel uncomfortable and concerned for her daughter. Douglas and Adriana left the apartment to buy some dinner, but Rorie followed them and continued talking about now "the devil was trying to steal his joy." 4 RP at 132. Douglas told Rorie they needed "cooling off" and that he could not come to dinner. 4 RP at 132.
At the restaurant, Douglas telephoned her mother, Jeanne Jackson. Jackson picked up Douglas and Adriana and drove them back to the apartment. At Douglas's request, Jackson spoke with Rorie while she and Adriana waited in the car. Jackson asked Rorie to spend the night elsewhere and to give her his key.
The next morning, Douglas and Jackson awoke to the sound of breaking glass. They rushed into the hallway and saw a broken window in the kitchen. Then Rorie kicked the door in, burst into the apartment, and punched Douglas between the eyes with his fist. When Douglas turned over, Rorie pulled her hair and grabbed her throat. He pushed her up against a wall, punched her four or five times in the head, and shoved her head into the glass of a picture frame. Jackson tried to pull Rorie away from her daughter, pleading with him to stop, while he wrapped his hands around Douglas's throat. Eventually, Rorie let go and Douglas ran to her bedroom.
Rorie went into the bedroom to find Douglas, and Jackson followed. Jackson positioned herself on the bed between Rorie and Douglas, who tried to staunch her bleeding wounds with a towel. Rorie kept trying to punch Douglas, but his blows landed on Jackson's wrists.
Jackson testified that after she and Douglas were beaten, Rorie accused Douglas of ruining his family, announced that "the devil had gotten into [Douglas]," and that she "needed to die." 4 RP at 235. He said he would get his "weapon of choice." 4 RP at 236. About 20 to 30 seconds later, he reentered the room carrying a hammer and raised the hammer above his head in a striking position. But Adrianna screamed and Rorie threw the hammer on the floor. Almost simultaneously, the police arrived and arrested Rorie.
The State charged Rorie with one count of attempted first degree murder, in the alternative first degree attempted assault, in addition to one count of first degree assault, one count of second degree assault, one count of first degree burglary, and one count of felony harassment against Douglas. The State also charged Rorie with two counts of second degree assault against Jackson.
It is not pertinent to the issues on appeal, but the State also sought additional findings that the offenses occurred within the sight or sound of the victim's minor child on four counts; entailed domestic violence on five counts; and involved a deadly weapon on five counts, including jury resolution.
During closing argument, the State told the jury that it should not give Rorie "the benefit of the doubt." 11 RP at 928. Defense counsel objected and the trial court said that the jury received the proper instructions and that the jury would follow the law.
The jury found Rorie not guilty of attempted first degree assault but found him guilty of second degree attempted assault. The jury also found him not guilty of first degree assault against Douglas on count V but found him guilty of second degree assault instead. On count IV, the jury found him guilty of second degree assault against Douglas. The jury also returned a guilty verdict on the two counts of second degree assault against Jackson. In addition, the jury found him guilty of one count of harassment against Douglas and not guilty of the count of first degree burglary.
The jury left blank the verdict form for attempted first degree murder.
At sentencing, the trial court merged the attempted second degree assault conviction in count I with the second degree assault conviction Rorie committed against Douglas in count VI. The trial court declined to merge any of the other second degree assault convictions. Rorie appeals.
Rorie does not appeal the harassment conviction.
ANALYSIS
Rorie first contends that the prosecutor committed misconduct by making improper statements in the closing and rebuttal arguments that shifted the burden of proof to Rorie. The trial court overruled Rorie's objection. No curative instruction was given. He asserts he was denied a fair trial.
Both the Sixth Amendment and the Washington Constitution guarantee a defendant a trial before an impartial jury. U.S. Const. amend. VI; Wash. Const. art. I, § 22. In asking us to reverse based on improper remarks by the State, Rorie must establish not only the impropriety of the prosecutor's remarks, but also their prejudicial effect. State v. Jefferson, 11 Wn. App. 566, 569, 524 P.2d 248 (1974). Rorie cannot show prejudicial effect absent a substantial likelihood that the misconduct affected the jury's verdict. State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997).
In its closing, the State said: "Everything you find you have to find beyond a reasonable doubt. . . . Nothing is 100 percent certain." 11 RP at 868. Later, during the State's rebuttal argument, the following exchange took place:
[Prosecutor]: The defendant assaulted these people repeatedly. He injured them severely, some of it temporary, some of it permanent. He scared them to death, he made them believe that they were going to die, he told them they were going to die. And to give him a break, to give him the benefit of the doubt that the defense is asking for —
[Defense counsel]: Your Honor, that is the law, that he does get the benefit of the doubt. So I would object to his argument that somehow tries to shift the burden onto the defendant.
[Defense counsel]: Your Honor, I'm almost done. It's argument.
THE COURT: Well, please follow the law —
[Defense counsel]: I am.
THE COURT: — Mr. Ericksen, and finish up in two minutes.
[Defense counsel]: Yes, Your Honor. To give him the breaks the defense counsel is requesting, that would be an insult to the victims, that would be an insult to what happened to them, that would be an insult to the notion of justice. Ms. High: And, Your Honor, I again object to that argument. . . . The burden is to prove every element of the crime beyond a reasonable doubt.
THE COURT: The jury has been instructed on the law and they will follow the law. That's my ruling.
11 RP at 928-29.
Here, even assuming that the State gave an improper argument, Rorie cannot establish that any prejudice affected the jury's verdict. The evidence so overwhelms as to negate any possible prejudicial effect. State v. Allyn, 40 Wn. App. 27, 35, 696 P.2d 45 (1985) (error claimed where evidence overwhelms cannot have changed the result). First, Rorie does not dispute that he injured Jackson and Douglas and that his actions caused their apprehension. Second, the victims' testimony described and established their injuries and fear. Rorie's argument fails.
Rorie also contends that the four second degree assault convictions should merge into two for sentencing purposes because they constituted the same units of prosecution. At trial, the State asserted four separate units existed because (1) Rorie committed one assault on Douglas when he hit her and another when he brandished the hammer, scaring her; and (2) he committed one assault on Jackson when, with recklessness, he hit her and another when he brandished the hammer, scaring her.
Relying on State v. Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007), Rorie argues that the two assault convictions against Douglas and the two assault convictions against Jackson each become one because the assault statute fails to define the unit of prosecution and, therefore, the rule of lenity applies. See State v. Adel, 136 Wn.2d 629, 634-35, 965 P.2d 1072 (1998). Rorie argues that when faced with a unit of prosecution claim, we must first analyze the statute in question, then review the statute's history and conclude by engaging in a factual analysis as to the unit of prosecution. Varnell, 162 Wn.2d at 168. Rorie asserts the statute is ambiguous and that the facts show that the assaults occurred "over a very short period of time as part of one continuous series of actions." Appellant's Br. at 15. We disagree.
RCW 9A.36.021 provides:
(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or
. . . .
(c) Assaults another with a deadly weapon.
The statutes are not ambiguous; they merely provide for a finding of guilt in varying circumstances.
Moreover, when we engage in our analysis, Rorie's actions comprised more than one occurrence. He beat Douglas with his fists in the hallway and grabbed her by the throat, constituting the first assault. Both witnesses testified that Douglas bled substantially, thus Rorie inflicted "substantial bodily harm." Once he moved to the bedroom, he repeatedly punched Jackson and bruised her, which constituted the second assault. Then he announced that Douglas had to die, left the room, and returned with a hammer. Raising it above his head, he caused Douglas and Jackson to fear for their lives, which constituted the third and fourth assault counts (assault with a deadly weapon).
RCW 9A.36.021 punishes the assault of "another." Here, we deal with two separate victims, who Rorie initially struck with his fists and then put them in fear that he would strike them with a hammer. Here, the assault charges did not stem from one continuing action. Instead, they resulted from a first set of beatings and a second incident, resulting from a newly stated motivation.
Finally, Rorie argues that the trial court's failure to merge the four counts of assault into two resulted in a miscalculation of his offender score. He asserts the four assaults constitute concurrent crimes that encompass the same criminal conduct and should count as only two offenses under RCW 9.94A.589(1)(a). As part of the Sentencing Reform Act of 1981, RCW 9.94A.589(1)(a), this provision defines "`same criminal conduct' as two or more crimes that (1) require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim." Because we hold that the assaults do not merge, Rorie's further sentencing argument fails.
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.
Hunt, J. and Van Deren, C.J., concur.