Opinion
No. 24943-3-III.
July 15, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-01322-3, Gregory D. Sypolt, J., entered February 2, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Sweeney, J.
Yuriy Shevchuk appeals his 12 convictions arising from his flight from and assault of a law officer investigating a vehicle prowl. Mr. Shevchuk contends the trial court erred in allowing certain fingerprint evidence and ordering an exceptional sentence based on his high offender score. Pro se, Mr. Shevchuk urges additional grounds, including evidence insufficiency. We reject all contentions, and affirm.
FACTS
Because we partly review an evidence sufficiency challenge, the facts are shown in a light most favorable to the State. About 4:00 am on April 20, 2005, Washington State Patrol (WSP) Trooper Wayne Turner was driving his marked patrol car toward his Spokane Valley home. He noticed a white GMC pickup truck stopped in the middle of Loretta Drive near 37th Avenue. Next to the GMC was his neighbor's (Doug Burke's) blue pickup truck being rummaged by an unknown male. The trooper pulled behind the blue pickup, activating his rear emergency lights. The male fled without pursuit.
Trooper Turner approached the GMC, rapped on the driver's side window with his flashlight, ordering: "Shut off the engine. We need to talk." 1 Report of Proceedings (RP) (Dec. 8, 2005) at 71. The trooper later identified the driver as Mr. Shevchuk. Mr. Shevchuk immediately sped off. Trooper Turner pursued in his patrol car with emergency lights and siren activated. Mr. Shevchuk ran a stop sign and a red light, reaching 80 miles per hour, and stopping only when he drove into a blocked alleyway. The trooper parked about 10 feet behind and one foot to the left of the GMC.
Trooper Turner approached the GMC's driver's side with his gun in one hand and his flashlight in the other hand. He repeatedly yelled, "[p]ut your hands up [and] [s]hut it off." 1 RP (Dec. 8, 2005) at 81. Mr. Shevchuk looked directly at Trooper Turner and mouthed "FU." 1 RP (Dec. 8, 2005) at 81. When Mr. Shevchuk did not respond to his commands, the trooper broke the driver's side window with the rear end of his flashlight. Mr. Shevchuk, who was plainly visible, still ignored the commands and began maneuvering the GMC. Mr. Shevchuk turned in his seat, looked directly at Trooper Turner, and then reversed the GMC accelerating directly toward him.
Trooper Turner's left hand was caught and injured as the GMC pushed his patrol car around 20 feet back. The GMC stopped only when it rode up the patrol car's hood. Trooper Turner went to the driver's side of the GMC and saw Mr. Shevchuk exit the passenger side door and run away. The trooper failed to catch him. Trooper Turner sustained injuries to several fingers of his left hand. He later testified that his surgery to repair tendon and nerve damage was only partly successful. Trooper Turner immediately identified Mr. Shevchuk as the GMC driver from a photomontage and identified Mr. Shevchuk in court as the driver of the GMC.
The same night, in the same vicinity, Lynne Dickerson, Robert Clapper, Linda Hannigan, and Joleen Dumerton noticed damage to, and items missing from, their vehicles; and property belonging to them was recovered from the white GMC pickup truck. Matt Unger, Doug Burke's stepson, reported property missing from the blue pickup. David Shoemaker noticed property, connected to Mr. Shevchuk, was missing from his van parked in his attached garage. The GMC driven by Mr. Shevchuk was taken without permission from William Foote.
The State charged Mr. Shevchuk with one count of first degree assault against Trooper Turner; one count of attempt to elude a police vehicle; one count of first degree theft, for William Foote's GMC; one count of residential burglary, for Mr. Shoemaker's garage; three counts of third degree malicious mischief, for damage to vehicles owned by Ms. Dickerson, Mr. Clapper, and Ms. Dumerton; and five counts of second degree theft, for property from vehicles owned by Ms. Dickerson, Mr. Clapper, Ms. Dumerton, Ms. Hannigan, and Mr. Unger.
Outside the jury's presence, the State offered WSP Detective Edward Swainson's fingerprint collection testimony regarding his decision not to test a leatherman tool found near the alleyway and a flashlight found near Loretta Drive. Detective Swainson related his fingerprint-collection training from the WSP and one-on-one training from Julie Combs, a Spokane County Sheriff's forensic specialist. Detective Swainson recited his working experience as an auto theft detective. He worked on over 100 cases. Detective Swainson partly related that dampness and rubbing, even against cloth or a blade of grass, likely would remove a latent print.
Detective Swainson acknowledged he was not a qualified forensic expert. He offered "[i]t appeared as though [the leatherman tool] had fallen and skidded across grass, wet grass, and in my opinion, the likelihood of getting a usable latent print off of such an item was very low." 3 RP (Dec. 13, 2005) at 286. And, "[e]ven though [the flashlight's] surface would be more conducive to keeping a print typically being on the grass, especially damp grass, it's far more likely that a latent print would be removed, and there'd be a high likelihood that we would not find a latent print on it." 3 RP (Dec. 13, 2005) at 287. Defense counsel argued that testimony should be given by a forensics expert. The court disagreed, partly reasoning:
[H]ere the subject matter on which the proper testimony is sought to be introduced is that of a trained police officer insofar as collection and a methodology and approach to fingerprint collecting. Specifically, whether or not certain surfaces given certain weather or other atmospheric conditions might bear on the likelihood of liftable, usable prints, existing or not existing.
3 RP (Dec. 13, 2005) at 305.
Before the jury, Detective Swainson testified consistently with his offer of proof. He assisted Spokane County's forensics fingerprint technicians investigating the crimes. Detective Swainson explained his understanding, based on his training and experience, of how certain conditions, like mud, dirt, moisture, material, and placement negatively affect latent prints and why items, including the leatherman tool found in tall wet grass and the muddy flashlight, were not examined as a waste of resources.
Mr. Shevchuk elected to testify. He denied any involvement.
The jury found Mr. Shevchuk guilty of the lesser-included crime of second degree assault; and guilty on all other counts as charged, totaling nine felonies and three misdemeanors. At sentencing, Mr. Shevchuk's offender score was 14, based on five prior felony convictions and the nine felonies here. Defense counsel sought 63 months, the bottom end of the uncontested 63 to 84-month standard range for the second degree assault charge. The State observed:
I think there is argument to be made that an exceptional sentence would be appropriate in this case. I would note that under the Sentencing Reform Act [sic], and specifically RCW 9.94A.535(2)(c), it is allowable for a judge without a jury determination, under Blakely, to determine that offenses are going unpunished with a standard range sentence. I submit that is exactly the circumstance we have here.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
RP (Jan. 24, 2006) at 7.
The State explained that without the second degree assault conviction, the attempt to elude a police vehicle conviction, or the residential burglary conviction, the standard range sentence would still be 63 to 84 months, adding:
So if the court believes that there are unpunished offenses in this particular fact pattern and makes that determination that an exceptional up is appropriate, the [S]tate would agree with that. But the [S]tate is also of the opinion that a standard range sentence would also be significant. But if the court determines that a standard range sentence is appropriate, we would ask, given all these other factors and the potential for an exceptional up, that the court not sentence to anything less than the upper end of that, which is 84 months on this case.
RP (Jan. 24, 2006) at 8-9.
The court imposed an above-range exceptional sentence. Relying on RCW 9.94A.535(2)(c), the court imposed 84 months for the assault conviction and 29 months for the eluding conviction, to run consecutively. The court then imposed the high end of the standard range on the remaining felony convictions, to run concurrent to all other counts, and 90 days on each misdemeanor third degree malicious mischief conviction, to run concurrent to all other counts. Mr. Shevchuk appealed.
ANALYSIS A. Fingerprint Collection Evidence
The issue is whether the court erred in allowing Detective Swainson's fingerprint collection testimony.
We review the admission of opinion testimony for an abuse of discretion. State v. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992). "An abuse of discretion is found if the trial court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law." State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007) (citing Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006)). Here, the trial court, citing ER 701, allowed Detective Swainson to testify to "collection and a methodology and approach to fingerprint collecting[,] [s]pecifically, whether or not certain weather or other atmospheric conditions might bear on the likelihood of liftable, usable prints, existing or not existing . . . as to . . . two objects in question . . . a flashlight and a leatherman tool." 3 RP (Dec. 13, 2005) at 305-06.
Mr. Shevchuk contends the court improperly allowed Detective Swainson to opine about fingerprint analysis. However, the challenged testimony was limited to fingerprint collection. Mr. Shevchuk concedes Detective Swainson had a great deal of training, personal knowledge, and experience with collecting prints.
While the trial court discussed ER 701, Detective Swainson's testimony was properly admitted under ER 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
ER 702.
Detective Swainson related his knowledge, training, and experience in fingerprint collection. He testified he received training in the collection of fingerprints from the WSP; one-on-one training from Julie Combs, a forensic specialist with the Spokane County Sheriff's office; and his practical experience. Detective Swainson's testimony helped the jury to understand why the items found near the crime scenes were not submitted for testing, a potential defense issue. In sum, the trial court did not err.
B. Exceptional Sentence
The issue is whether the court erred in imposing an exceptional sentence under RCW 9.94A.535(2)(c). Mr. Shevchuk raises a due process violation because he did not have notice of an exceptional sentence.
Mr. Shevchuk initially argued the State provided no notice of its intent to seek an exceptional sentence, citing RCW 9.94A.537(1), thus depriving him of due process. However, in his reply brief, Mr. Shevchuk concedes the State did not specifically request or move for an exceptional sentence. Accordingly, we will not decide whether RCW 9.94A.537(1) requires the State to give notice of its intent to seek an exceptional sentence pursuant to RCW 9.94A.535(2)(c), because such an opinion would be advisory. State ex rel. O'Connell v. Kramer, 73 Wn.2d 85, 87, 436 P.2d 786 (1968).
Generally, sentences for multiple current offenses, other than serious violent offenses, are concurrent. RCW 9.94A.589(1)(a), (b). Consecutive sentences for multiple current offenses are thus exceptional. State v. Newlun, 142 Wn. App. 730, 735 n. 3, 176 P.3d 529 (2008). "Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535." RCW 9.94A.589(1)(a). The court imposed an exceptional sentence by ordering the second degree assault conviction consecutive to the attempt to elude a police vehicle conviction.
"Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of RCW 9.94A.537." RCW 9.94A.535. Under RCW 9.94A.537(1), "[t]he State must give notice at any time prior to trial, `if substantial rights of the defendant are not prejudiced,' that it is seeking a sentence above the standard range." State v. Bobenhouse, 143 Wn. App. 315, 331, 177 P.3d 209 (2008) (quoting RCW 9.94A.537(1)); see also State v. Womac, 160 Wn.2d 643, 663, 160 P.3d 40 (2007) (recognizing "RCW 9.94A.537(1) permits the imposition of an exceptional sentence only when the State has given notice, prior to trial, that it intends to seek a sentence above the standard sentencing range").
Here, the record shows the State did not seek an exceptional sentence. Nothing in RCW 9.94A.537 requires the court to give prior notice to a defendant before imposing an exceptional sentence on its own accord. The trial court imposed an exceptional sentence based upon the following provision of RCW 9.94A.535: "the trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances . . . [t]he defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished." RCW 9.94A.535(2)(c). Division One of this court recently considered whether this provision complies with Blakely. Newlun, 142 Wn. App. at 730.
"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and provided beyond a reasonable doubt." Blakely, 542 U.S. at 301 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). Further, "the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Id. at 303-04.
In Newlun, the defendant pleaded guilty to 11 criminal charges, and the State recommended sentences within the standard range on each count, to run concurrently. Newlun, 142 Wn. App. at 734-35. The court, after hearing from one of the victims, imposed an exceptional sentence, finding the crime was a "major economic offense." Id. at 736-37. After a clarification hearing, the court cited RCW 9.94A.535(2)(c), omitting reference to a "major economic offense." Id. at 737. The defendant appealed, arguing RCW 9.94A.535(2)(c) was contrary to Blakely, but the court rejected that argument: "The core concern of the Blakely court . . . is not implicated by the current version of RCW 9.94A.535(2)(c)." Id. at 742.
The Newlun court reasoned "in order to impose an exceptional sentence under RCW 9.94A.535(2)(c), the sentencing court does not need to look beyond facts reflected in the jury verdict or admitted by the defendant.'" Id. at 743 (internal quotation marks omitted) (quoting In re Pers. Restraint of VanDelft, 158 Wn.2d 731, 740, 147 P.3d 573 (2006)). Rather, "the sentencing court need only find the fact of the defendant's convictions in order to be justified in imposing an exceptional sentence[] pursuant to RCW 9.94A.535(2)(c)." Id. at 742. Thus, because the defendant's exceptional sentence was based solely upon the fact of his criminal convictions, no Sixth Amendment violation occurred. Id. at 745.
In sum, the trial court's decision to impose an exceptional sentence without prior notice did not deprive Mr. Shevchuk of due process. Nothing in RCW 9.94A.537 requires the court to give prior notice before imposing an exceptional sentence on its own accord. The court did not engage in fact finding in violation of Mr. Shevchuk's Sixth Amendment rights under Blakely. Mr. Shevchuk's citations are inapposite. See State v. Recuenco, ___ Wn.2d ___, 180 P.3d 1276, 1283 (2008) (uncharged firearm enhancement); Womac, 160 Wn.2d at 660-64 (critical facts impermissibly found by the judge); State v. Vance, 142 Wn. App. 398, 404-06, 174 P.3d 697 (2008) (improper judicial finding that punishment was "clearly too lenient").
C. Additional Grounds
Pro se, Mr. Shevchuk raises three identifiable concerns:
1. Evidence Sufficiency. Mr. Shevchuk argues insufficient evidence supports his convictions for the five counts of second degree theft, one count of residential burglary, one count of first degree theft, and three counts of third degree malicious mischief, generally because no eyewitness testimony linked him to these crimes. Further, he claims his second degree assault conviction lacks evidence of intent and substantial bodily injury. We disagree with his arguments.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id. (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980)). Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980) (citing State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975)). Here, as reviewed in the facts drawn most favorably to the State, sufficient circumstantial evidence supported each conviction contested by Mr. Shevchuk.
The State connected each theft count by similarity in time and location, and stolen property found in the GMC. The GMC was connected to Mr. Shevchuk by Trooper Turner's identification. The victims stated values for the lost property.
The residential burglary victim testified after April 19, he found items missing from his van parked in his attached garage. Items, including a brass engraved name tag, were recovered and returned to the victim by the WSP. Detective Larry McGill testified the nametag was found in a black leather jacket linked to Mr. Shevchuk.
Regarding first degree theft, Robbie Foote, the son of William Foote, testified the GMC was stolen from his home on April 20, 2005. Mr. Shevchuk did not have permission to take the GMC that was valued between $12,000 and $14,000.
Concerning the three third degree malicious mischief convictions, the victims related that they found broken windows on their vehicles on the morning of April 20, 2005, and the evidence supports the inference that Mr. Shevchuk caused those damages.
Finally, a defendant is guilty of second degree assault, "[i]f he or she, under circumstances not amounting to assault in the first degree . . . [1] [i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm; or [2] [a]ssaults another with a deadly weapon." RCW 9A.36.021(1)(a), (c). "Deadly weapon" includes "any . . . device, [o]r instrument . . . including a `vehicle' . . . which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm." RCW 9A.04.110(6). Further, "substantial bodily harm" is defined as "bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part." RCW 9A.04.110(4)(b). Trooper Turner's testimony amply provides evidence of intent and substantial bodily injury, contrary to Mr. Shevchuk's arguments.
2. Exceptional Sentence. First, Mr. Shevchuk argues his sentence for the second degree assault violates Blakely because the combination of his confinement and community custody sentence exceeds the standard range. Second, he argues his exceptional sentence imposed pursuant to RCW 9.94A.535(2)(c) violates his rights under Blakely because it was imposed without a jury finding. Blakely does not apply to community custody because it results directly from the jury verdict without judicial fact finding. See RCW 9.94A.715 (authorizing community custody for violent offenses committed on or after July 1, 2000). And, because a sentence under RCW 9.94A.535(2)(c) is based upon the fact of Mr. Shevchuk's convictions, Blakely does not apply. See Newlun, 142 Wn. App. at 742-45.
3. Same Criminal Conduct. Mr. Shevchuk argues the court erred in failing to consider "same criminal conduct" at sentencing. See RCW 9.94A.589(1)(a) (defining "same criminal conduct" for purposes of calculating offender score). At the sentencing hearing, Mr. Shevchuk did not object to his offender score calculation. Generally, illegal or erroneous computations of an offender score may be raised for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). But, the failure to identify a factual dispute waives an offender score challenge. State v. Nitsch, 100 Wn. App. 512, 520, 997 P.2d 1000 (2000). That is the situation here.
Affirmed.
A majority of the panel has determined 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.
SCHULTHEIS, C.J., SWEENEY, J., concur.