Opinion
No. 21489-3-III.
Filed: April 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-00460-2. Judgment or order under review. Date filed: 09/18/2002. Judge signing: Hon. Michael E Donohue.
Counsel for Appellant(s), Chris A. Bugbee, Attorney at Law, PO Box 30536, Spokane, WA 99223-3008.
David George Segerman (Appearing Pro Se), #771543, 1313 N. 13th Ave., Walla Walla, WA 99362.
Counsel for Respondent/Cross-Appellant, Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
David Segerman was convicted in a jury trial of first degree robbery and first degree assault of a taxi driver, each crime committed while armed with a deadly weapon. The sentencing court treated the two crimes as one offense and consequently imposed the two deadly weapon sentencing enhancements concurrently. On appeal, Mr. Segerman contends the trial court erred by admitting hearsay evidence and testimony of his prior convictions. The State cross-appeals the sentencing court's calculation of the offender score and failure to impose two consecutive weapon enhancements. We find no error in the admission of evidence. However, the trial court erred in imposing the weapon enhancements concurrently. Consequently, we affirm the judgment but remand for resentencing.
Facts
Early on the morning of February 3, 2002, taxi driver Jason Cabral picked up Mr. Segerman at a north Spokane residence and drove him to a south side address. Mr. Segerman was a couple of dollars short for the fare, but Mr. Cabral offered to make up the difference with some of his tip money. After Mr. Segerman left the taxi and entered a residence, Mr. Cabral turned the taxi around and parked as he completed paperwork.
A few minutes later, Mr. Segerman approached the driver's side of the taxi and demanded money. Mr. Cabral's window was rolled down a few inches and Mr. Segerman held a knife to the opening. After Mr. Cabral handed Mr. Segerman approximately $100, Mr. Segerman stabbed Mr. Cabral in the neck and told him to move to the passenger seat. Mr. Cabral fainted and regained consciousness alone in the taxi about a block from the attack site. He called the taxi dispatch center and then crawled to a nearby residence to summon help. Fortunately, one of the guests at the residence — Donna Kisskeys — was an emergency room nurse who tended to Mr. Cabral's wound until he was transported to a hospital.
Officers quickly determined that Mr. Segerman was Mr. Cabral's last fare and they visited the residence where Mr. Segerman was dropped off. Mr. Segerman's brother answered the door and let the officers in. They found Mr. Segerman in bed wearing only his underwear. He admitted using the taxi earlier that morning and said he had been wearing blue jeans and a tee shirt. After Mr. Segerman's brother gave permission to search the house, the officers found a dark shirt and khaki pants stained with blood in a closet. They then arrested Mr. Segerman. Mr. Cabral later identified Mr. Segerman as his attacker and described him as wearing a dark shirt and tan pants. The knife was never found.
Mr. Segerman was charged by information with one count of first degree assault with a deadly weapon (RCW 9A.36.011(1)(a); former RCW 9.94A.510(4) (2000); RCW 9.94A.602) and one count of first degree robbery with a deadly weapon (former RCW 9A.56.200(1)(a) (1975); former RCW 9.94A.510(4); RCW 9.94A.602). At trial, he pursued a defense of diminished mental capacity due to extreme intoxication. During cross-examination of defense psychologist Dr. Walter Mabee, the prosecutor was allowed over objection to ask whether Dr. Mabee had considered evidence that Mr. Segerman actually suffered from an antisocial personality disorder. One factor in the diagnosis of this disorder is the incidence of contacts with law enforcement. The trial court ruled that evidence of specific acts of misconduct would not be admitted, but that general information on contacts with law enforcement would be allowed as relevant to Mr. Segerman's mental state. Later, the State's psychiatrist was allowed to testify that his diagnosis of antisocial personality disorder was based in part on Mr. Segerman's criminal history. Defense counsel also objected to Ms. Kisskeys's testimony that Mr. Cabral told her his last fare had asked for money and then stabbed him. The trial court admitted this testimony as an excited utterance exception to the hearsay rule.
The jury found Mr. Segerman guilty of both counts with a special finding that he was armed with a deadly weapon while committing each crime. At sentencing, the trial court found that the two counts involved the same criminal conduct for the purposes of the offender score. The court imposed the high end of the standard range for each count, added the 24-month weapon enhancement to each, and ran the resulting sentences concurrently for a total incarceration of 195 months. Mr. Segerman appeals the trial court's decisions regarding admission of the challenged evidence and the State cross-appeals the sentence.
Excited Utterance
Mr. Segerman first contends the trial court erred in admitting Ms. Kisskeys's testimony that Mr. Cabral told her he was robbed and stabbed by his last fare. The trial court admitted this testimony as an excited utterance exception to the hearsay rule.
The hearsay rule generally prohibits admission of an out-of-court statement used to prove the truth of the fact asserted. ER 801(c); ER 802; State v. Davis, 141 Wn.2d 798, 842, 10 P.3d 977 (2000). Even hearsay may be admissible, however, if it constitutes a recognized exception to the rule. Davis, 141 Wn.2d at 843. The excited utterance exception provides that the hearsay rule does not exclude a `statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.' ER 803(a)(2). We review a trial court's determination that a hearsay statement falls within the excited utterance exception for abuse of discretion. Davis, 141 Wn.2d at 841.
According to the theory supporting the excited utterance exception, the stress of an event `suppresses the reflective faculties of the declarant with the result that the utterances are sincere and spontaneous.' State v. Palomo, 113 Wn.2d 789, 796, 783 P.2d 575 (1989). In other words, reliability is ensured because the spontaneous reaction to a startling event leaves little opportunity for misrepresentation or conscious fabrication. Davis, 141 Wn.2d at 843. The three qualifications for an excited utterance exception are (1) the declarant experiences a startling event or condition; (2) the declarant must have made the statement while under the stress caused by the event or condition; and (3) the statement must relate to the event or condition. Id. The only element at issue here is whether the statement was made while Mr. Cabral was still under the stress of the events. Mr. Segerman argues that Mr. Cabral's hypothermic and `shocky' physical state when discovered on the front porch indicates he had been lying there for a prolonged period of time. Report of Proceedings (RP) at 250. Further, he contends the statement was not spontaneous because it was elicited by Ms. Kisskeys's questioning.
The longer the period of time between the event and the statement, the greater the opportunity for reflective thought and fabrication. Davis, 141 Wn.2d at 844. However, other factors may be considered to determine whether the declarant was still under the effect of the startling event. Id. Mr. Cabral testified that he fainted soon after he was stabbed and awoke alone in his taxi after an unspecified interval of time. After calling dispatch for help, he immediately crawled to the nearest residence and began ringing the doorbell. By the time Ms. Kisskeys began attending to him, he was blue with cold and shock and was barely able to communicate. The actual period of time that he had been awake and conscious was short — probably no more than 30 minutes. In some cases, statements made even hours after a startling event have been admitted upon a finding of `continuing stress' between the event and the statement. State v. Flett, 40 Wn. App. 277, 287, 699 P.2d 774 (1985), cited with approval in State v. Woods, 143 Wn.2d 561, 599, 23 P.3d 1046 (2001); see also State v. Guizzotti, 60 Wn. App. 289, 803 P.2d 808 (1991). Mr. Cabral's statement was sufficiently contemporaneous to support a finding that it was made while still under the excitement of his robbery and assault.
Additionally, an excited utterance may be made in response to questioning. State v. Chapin, 118 Wn.2d 681, 690, 826 P.2d 194 (1992); State v. Ramires, 109 Wn. App. 749, 758, 37 P.3d 343, review denied, 146 Wn.2d 1022 (2002). The key question is whether the statement is spontaneous. Ramires, 109 Wn. App. at 758. While attempting to provide medical care, Ms. Kisskeys asked Mr. Cabral what had happened to him. Although she testified at trial that she had to prompt him repeatedly to get him to answer her questions, she also testified that when he eventually stated that he had given someone a ride and that the person had asked for money and then stabbed him, he made the statement in a narrative form and not in response to a specific question. The trial court found that the statement was spontaneous while under the nervous excitement of the event. Because it cannot be said that no reasonable judge would have made the same ruling, we find no abuse of discretion. Woods, 143 Wn.2d at 595-96.
We decline to address the State's additional argument that the statement is also admissible under the medical diagnosis exception — an issue the trial court also declined to reach.
Prior Misconduct
Dr. Mabee, a psychologist testifying for the defense, testified that Mr. Segerman did not have the mental capacity to form the intent to assault because he was intoxicated. Based on information he obtained from Mr. Segerman and Mr. Segerman's brother, Dr. Mabee estimated that Mr. Segerman had a blood-alcohol level of around .20 at the time of the assault. During cross-examination, the prosecutor asked Dr. Mabee if he had evaluated Mr. Segerman for an antisocial personality disorder. Specifically, the prosecutor asked him if he had used Mr. Segerman's criminal history in making his diagnosis. Defense counsel objected on the basis of ER 404(b), which prohibits evidence of other crimes or misconduct used to show that the defendant acted in conformity with that conduct. The trial court found that the relevance of Mr. Segerman's criminal history as it related to the issue of intent outweighed the prejudicial effect. However, the court limited any mention of criminal history to general references to law enforcement contacts. The court disallowed questions about specific convictions or acts of misconduct.
Later, during rebuttal testimony by Dr. John Henry, a psychiatrist, the State was allowed to ask Dr. Henry whether Mr. Segerman met the standards for an antisocial personality disorder, including a history of contacts with law enforcement. Dr. Henry stated that Mr. Segerman had a `clear history of arrests and convictions' in Washington and California consistent with an antisocial personality disorder. RP at 624. Mr. Segerman contends on appeal that the trial court failed to balance the probative value of the reference to prior convictions against its prejudicial effect. He argues that the relevance of this information is slight and the potential for prejudice extremely high.
Evidence of other crimes may be admissible if the evidence is logically relevant to a material issue and if its probative value outweighs its potential for prejudice. ER 403; ER 404(b) cmt.; State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995); State v. Medrano, 80 Wn. App. 108, 113, 906 P.2d 982 (1995). The balancing of relevance and prejudice must be done by the trial court on the record. Powell, 126 Wn.2d at 264.
Contrary to Mr. Segerman's assertion, the trial court considered the arguments of counsel and balanced the potential prejudice of a reference to Mr. Segerman's criminal history against its relevance to the issue of intent. Because Mr. Segerman claimed that intoxication diminished his ability to form the intent or purpose to assault Mr. Cabral, his mental capacity was in issue. Dr. Henry's opinion reasonably relied on data — Mr. Segerman's criminal history — that was not normally admissible into evidence. Medrano, 80 Wn. App. at 113 (citing ER 703, which permits an expert to rely on facts or data otherwise inadmissible if the facts or data are reasonably relied on by experts in the particular field). The State sought to rebut Mr. Segerman's theory of diminished capacity due to intoxication by showing that his actions — including his calmness during police questioning, the lapse of time before he asked the police what crime they were investigating, and his laughter when he was arrested for stabbing Mr. Cabral — were also consistent with an antisocial personality disorder. One of the qualifying factors in a diagnosis of antisocial personality disorder is a history of arrests and convictions. Evidence of Mr. Segerman's prior contacts with law enforcement was therefore relevant.
Mr. Segerman testified that he was extremely intoxicated during the time of the assault. He reported to Dr. Mabee that he had blacked out soon after he entered Mr. Cabral's taxi and regained consciousness in his jail cell much later.
The trial court's determination of prejudice is discretionary. Medrano, 80 Wn. App. at 113. Balancing the relevance of this information against its potential to prejudice the jury against Mr. Segerman, the trial court decided to allow the testimony within strict restrictions: no references to specific crimes or to whether the crimes were felonies or misdemeanors. By carefully excluding references to specific crimes and limiting the discussion to the elements of an antisocial personality disorder, the trial court reduced the risk of prejudice. This curtailed use of prior convictions was then balanced against the relevance of the criminal history to the psychological diagnosis of Mr. Segerman's ability to form the requisite intent. We find no abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648-49, 904 P.2d 245 (1995).
Same Criminal Conduct
On cross-appeal, the State first contends the trial court erred in computing Mr. Segerman's offender score. Finding that Mr. Segerman's objective intent did not change from the robbery to the assault, the trial court concluded that the two offenses were the same criminal conduct and treated them as one in determining the offender score. We review for abuse of discretion or misapplication of law. State v. Freeman, 118 Wn. App. 365, 377, 76 P.3d 732, petition for review filed No. 746567 (Wash. Oct. 30, 2003). Although review for abuse of discretion is deferential, review for misapplication of law is not. Id.
RCW 9.94A.589(1)(a) provides generally that when a person is to be sentenced for two or more current offenses, the offender score is determined by using all other current and prior convictions. If, however, the court finds that some or all of the current offenses encompass the same criminal conduct, then those current offenses are counted as one crime. Id. `Same criminal conduct' is defined as `two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.' Id. The robbery and assault committed here were committed at the same time and place and involved the same victim. Consequently, the only element at issue is intent.
In determining whether two crimes share the same criminal intent, the court focuses on whether, viewed objectively, the defendant's intent changed from one crime to the next and whether commission of one crime furthered the other. State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992); Freeman, 118 Wn. App. at 377. Here, the criminal intent in committing the robbery was significantly different from the intent in committing the assault.
The intent required for first degree robbery is the intent to deprive the victim of property, while the intent required for first degree assault is the intent to inflict great bodily harm. RCW 9A.36.011; RCW 9A.56.190, 200; Freeman, 118 Wn. App. at 378. In this case, neither crime furthered the commission of the other. While the assault may have been committed in an effort to escape the consequences of the robbery, the assault did not further the ultimate goal of the robbery, which was completed before the assault. State v. Dunaway, 109 Wn.2d 207, 217, 743 P.2d 1237, 749 P.2d 160 (1987) (finding that murders committed after robberies did not constitute the same criminal conduct). Mr. Segerman's objective intent in robbing Mr. Cabral was completed when he took the money from Mr. Cabral. This intent changed when he decided to commit great bodily harm on Mr. Cabral afterward. Freeman, 118 Wn. App. at 378 (evidence supported a finding that shooting the victim after the robbery `was a gratuitous, cold-blooded afterthought').
Because, viewed objectively, Mr. Segerman's criminal intent changed from the robbery to the assault, these crimes did not constitute the same criminal conduct. Dunaway, 109 Wn.2d at 217. Consequently, the trial court misapplied the law to these facts. Mr. Segerman's sentence must be remanded to the trial court for resentencing with the other current offense counted in the offender score.
Weapon Enhancements
The State next contends the trial court erred in effectively imposing only one weapon enhancement. After deciding that the robbery and assault offenses constituted the same criminal conduct, the trial court added the 24-month weapon enhancement to each and ran the resulting sentences concurrently. The State contends this ruling was directly contrary to statutory mandate.
If an offender or an accomplice was armed with a deadly weapon other than a firearm while committing a qualifying felony crime, a deadly weapon enhancement must be added to the total period of confinement for all offenses. Former RCW 9.94A.510(4). The weapon enhancement is mandatory and must run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements. Former RCW 9.94A.510(4)(e). With this language, the legislature has expressed its clear intent to impose two or more enhancements based on a single act of possessing a weapon whenever there are two or more offenses eligible for an enhancement. Because first degree robbery and first degree assault are class A felonies, the deadly weapon enhancement for each offense is 24 months. Former RCW 9.94A.510(4)(a); RCW 9A.36.011; RCW 9A.56.200(2).
Former RCW 9.94A.510(4) is unambiguous: an enhancement must be imposed for each qualifying crime committed while armed with a deadly weapon, and each enhancement must run consecutively to the other. State v. DeSantiago, 149 Wn.2d 402, 416, 68 P.3d 1065 (2003). A trial court that decides to treat multiple offenses as one for the purposes of the offender score — based on a finding that the offenses constituted the same criminal conduct — must still sentence the offenses individually. Unlike with merger, treatment of two crimes as one for the purposes of the offender score does not result in sentencing only one of those crimes. Freeman, 118 Wn. App. at 371 (elements of merger). If the two offenses are treated as one in determining the offender score, each is subject to a weapon enhancement, and the resulting sentences, even if run concurrently, must run the weapon enhancements consecutively. By adding the weapon enhancements to both the robbery and the assault sentences and running the resulting sentences concurrently, the trial court violated the clear provisions of former RCW 9.94A.510(4).
Affirmed in part; remanded for resentencing.
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.
KATO, C.J. and KURTZ, J., concur.