Opinion
Nos. 33875-1-II; 33919-6-II.
April 10, 2007.
Appeals from a judgment of the Superior Court for Jefferson County, No. 05-1-00102-5, Craddock D. Verser, J., entered September 9, 2005.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Quinn-Brintnall and Penoyar, JJ.
David Ray Simanovski appeals his conviction of one count of first degree unlawful possession of a firearm. Robert Lee Inman appeals his convictions of: (1) one count of second degree taking a motor vehicle without permission; and (2) two counts of first degree unlawful possession of a firearm. We affirm.
FACTS
On June 22, 2005, Deputy Sheriff Scott Boyd stopped a stolen vehicle in Jefferson County. Inman was driving, and Simanovski was a passenger in this vehicle. Among other things Page 2 within the vehicle, Deputy Boyd found: (1) a rifle between the driver's seat and the front passenger's seat; (2) a loaded handgun behind the back seat; and (3) a bag of marijuana in the back seat.
The State charged Simanovski with: (1) one count of second degree taking a motor vehicle without permission; (2) two counts of first degree unlawful possession of a firearm; and (3) one count of unlawful possession of marijuana. Ultimately, a jury found Simanovski guilty of one count of first degree unlawful possession of a firearm.
The State charged Inman with: (1) one count of second degree taking a motor vehicle without permission; and (2) two counts of first degree unlawful possession of a firearm. Ultimately, a jury found Inman guilty as charged.
ANALYSIS I. Courtroom Security
Simanovski and Inman contend that the trial court abused its discretion in allowing three uniformed officers to remain in the courtroom during the trial. A defendant is "entitled to the physical indicia of innocence which includes the right of the defendant to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man." State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). Any measures that "single out" a defendant as a particularly dangerous or guilty person threaten his constitutional right to a fair trial. Finch, 137 Wn.2d at 844. In particular, courts have universally held that the appearance of restraints should "be used only when necessary to prevent injury to those in the Page 3 courtroom, to prevent disorderly conduct at trial, or to prevent an escape." State v. Hartzog, 96 Wn.2d 383, 398, 635 P.2d 694 (1981).
But the issue here is not whether the State physically restrained Simanovski and Inman in front of the jury. Instead, the issue here is whether the presence of the three officers was inherently prejudicial. And whenever a courtroom arrangement is challenged as inherently prejudicial, the question is whether "'an unacceptable risk is presented of impermissible factors coming into play.'" Holbrook v. Flynn, 475 U.S. 560, 570, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986) (quoting Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976)). "If the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over." State v. Lord, 128 Wn. App. 216, 220, 114 P.3d 1241 (2005), review granted, 156 Wn.2d 1038 (2006).
We do not find an unacceptable risk of prejudice in this courtroom arrangement. See Holbrook, 475 U.S. at 570-71. As the trial court implied, the presence of three officers is unlikely to have been taken as a sign of anything other than a normal official concern for the safety and order of the proceedings. See Holbrook, 475 U.S. at 571. Moreover, Simanovski and Inman have failed to show actual prejudice.
See Holbrook, 475 U.S. at 568-69, 572. Therefore, they have failed to carry their burden and the trial court did not err.
II. Knowledge Instruction
Among other things, Simanovski and Inman argue that the "knowledge" instruction created a mandatory presumption, misled the jury regarding an essential element, and misstated Page 4 the law. Br. of Appellant (Simanovski) at 8-9; Br. of Appellant (Inman) at 6. We disagree with Simanovski and Inman. And we rely on State v. Gerdts, 2007 Wash. App. LEXIS 75, a recently published case addressing these very issues.
Here, the "knowledge" instruction, taken from 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.02, at 150 (2d ed. 1994), stated:
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he acted with knowledge.
Acting knowingly or with knowledge also is established if a person acts intentionally.
CP at 55 (emphasis added).
Although Simanovski and Inman assign error, cite authority, and make argument, it appears that they are raising this issue for the first time on appeal. "Generally, when there is no objection on the record, we will not consider an alleged instructional error unless the appellant first demonstrates that the error is a 'manifest error affecting a constitutional right.'" Gerdts, 2007 Wash. App. LEXIS 75, at *7 (quoting RAP 2.5(a)(3)). But because Simanovski and Inman argue that their counsel was ineffective for failing to object to this instruction on the above grounds, we will nevertheless address their arguments.
Gerdts, 2007 Wash. App. LEXIS 75, at *7.
To establish ineffective assistance of counsel, Simanovski and Inman must show that: (1) their counsel's performance was deficient; and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Simanovski and Inman must overcome a strong presumption that their counsel's representation was adequate and effective.
McFarland, 127 Wn.2d at 335. And to show prejudice, they must establish "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335. In this context, to establish deficient performance or prejudice, Simanovski and Inman first must show that if their counsel had objected to the knowledge instruction on these grounds, these objections likely would have been successful. See Gerdts, 2007 Wash. App. LEXIS 75, at *8.
"Jury instructions are 'sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law.'" State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012 (2005) (quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996)). We review challenged jury instructions de novo, examining the effect of a particular phrase in an instruction by considering the instructions as a whole and reading the challenged portions in the context of all the instructions given. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996).
In a criminal case, the trial court must instruct the jury that the State has the burden to prove each essential element of the crime beyond a reasonable doubt. Pirtle, 127 Wn.2d at 656. It is reversible error if the instructions relieve the State of that burden. Pirtle, 127 Wn.2d at 656.
A. Conflation of Knowledge and Intent
Relying on our decision in State v. Goble, 131 Wn. App. 194, 126 P.3d 821 (2005), Simanovski and Inman argue that the last sentence of the "knowledge" instruction created a mandatory presumption and allowed the jury to convict them if it found that they acted intentionally. Br. of Appellant Simanovski at 11; Br. of Appellant Inman at 7. Simanovski and Inman argue, for example, that this instruction would have allowed the jury to find that they acted with knowledge of the firearm if they intentionally rode in the vehicle. Their argument is meritless.
In Goble, we analyzed a "knowledge" instruction that included the sentence, "[a]cting knowingly or with knowledge also is established if a person acts intentionally." Goble, 131 Wn. App. at 202. In that case, we held that the instruction was confusing because it potentially allowed the jury to find the defendant guilty of third degree assault against a law enforcement officer if it found that the defendant intentionally assaulted the victim, but without having to find that the defendant knew the victim was a law enforcement officer performing his official duties. Goble, 131 Wn. App. at 202-03. We stated:
We agree that the instruction is confusing and that the [challenged] portion of the instruction allowed the jury to presume Goble knew [the victim's] status at the time of the incident if it found Goble had intentionally assaulted [the victim]. This conflated the intent and knowledge elements required under the to convict instruction into a single element and relieved the State of its burden of proving that Goble knew [the victim's] status if it found the assault was intentional.Goble, 131 Wn. App. at 203 (emphasis added). Here, in contrast, instructions 14, 16, 17, 18, 19, and 20 clearly required the jury to find that Simanovski and Inman knowingly had in their possession or control any firearm. Instruction 14 defined first degree unlawful possession of a firearm. Instructions 16, 17, 18, and 19 each contained the "to convict" instruction for first degree unlawful possession of a firearm. And instruction 20 defined the mens rea of knowledge.
In Goble, we treated the issue of whether the defendant had knowledge of the victim's status as a law enforcement officer as an element of third degree assault solely because the jury instructions in that case included this element. Goble, 131 Wn. App. at 200. We do not intend to imply that knowledge of the victim's status is normally an element of third degree assault. See Gerdts, 2007 Wash. App. LEXIS 75, at *10 n. 4.
Instructions 7, 8, and 9 clearly required the jury to find that Simanovski and Inman intentionally took or drove away an automobile without permission. Instruction 7 defined first degree taking a motor vehicle without permission. Instruction 8 defined the mens rea of intent. And instruction 9 contained the "to convict" instruction for first degree taking a motor vehicle without permission.
Accordingly, these instructions do not conflate the intent and knowledge elements required under separate "to convict" instructions into a single element under a single "to convict" instruction. Cf. Goble, 131 Wn. App. at 203. In other words, the "knowledge" instruction did not allow the jury to presume that Simanovski and/or Inman knowingly had in their possession or control any firearm if the jury found that Simanovski and/or Inman intentionally took or drove away an automobile without permission. See also Gerdts, 2007 Wash. App. LEXIS 75, at *9-11.
Any such argument to the contrary is not sound and the reasoning of Goble is inapposite here. Finally, because this substantive argument has no merit, Simanovski's and Inman's counsel was not ineffective for failing to challenge the knowledge instruction on this ground.
B. Confusing and Misleading
Simanovski and Inman also argue that the "knowledge" instruction was confusing and misleading because it did not follow the statutory language of RCW 9A.08.010(1)(b). Br. of Appellant Simanovski at 11; Br. of Inman at 7-8.
The "knowledge" instruction was based on RCW 9A.08.010(1)(b), which states:
A person knows or acts knowingly or with knowledge when:
(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or
(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.
(Emphasis added).
Simanovski and Inman claim that it is "nonsensical" for a "'fact, circumstances or result'" to be "described by law as being a crime."
Br. of Appellant Simanovski at 11; Br. of Appellant Inman at 8. They claim that the instruction's language differs from the statute's language and is therefore confusing and misleading.
As in Gerdts, we hold that the "knowledge" instruction properly informed the jury of the applicable law. Gerdts, 2007 Wash. App. LEXIS 75, at *12. "The language of the instruction was not significantly different from the statutory language. Both refer to facts or circumstances that are crimes." Gerdts, 2007 Wash. App. LEXIS 75, at *12. And whether the crimes are described "by law" or in a "statute defining the offense" is not relevant in this instance. Gerdts, 2007 Wash. App. LEXIS 75, at *13.
Accordingly, this substantive argument lacks merit. And because this argument lacks merit, Simanovski's and Inman's counsel was not ineffective for failing to challenge the knowledge instruction on this ground.
III. "Reasonable Doubt" Instruction
Simanovski and Inman contend that the trial court's "reasonable doubt" instruction was unconstitutional because it failed to give a clear instruction and it relieved the State of its burden. Br. of Appellant Simanovski at 15-18; Br. of Appellant Inman at 10-13. We have already considered this version of the "reasonable doubt" instruction and approved it. State v. Bennett, 131 Wn. App. 319, 126 P.3d 836, review granted, 145 P.3d 1214 (2006).
IV. Prosecutorial Misconduct
Simanovski argues that "[t]he prosecutor committed egregious misconduct by repeatedly misstating the law during closing arguments." Br. of Appellant Simanovski at 19. We disagree.
In order to establish prosecutorial misconduct, Simanovski must show that the prosecutor's conduct was improper and prejudiced his right to a fair trial. State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005). Prejudice is established where "'there is a substantial likelihood the instances of misconduct affected the jury's verdict.'" State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (quoting Pirtle, 127 Wn.2d at 672).
Simanovski did not object to the prosecutor's closing argument. "A defendant who fails to object to an improper remark waives the right to assert prosecutorial misconduct unless the remark was so 'flagrant and ill intentioned' that it causes enduring and resulting prejudice that a curative instruction could not have remedied." Boehning, 127 Wn. App. at 518 (quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)).
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. Boehning, 127 Wn. App. at 519. "A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury." Boehning, 127 Wn. App. at 519. But a prosecutor may not make statements that are unsupported by the evidence and prejudicial to the defendant. Boehning, 127 Wn. App. at 519.
After reviewing the prosecutor's statements, we hold that Simanovski has not shown that the prosecutor's conduct was improper, let alone flagrant and ill intentioned. And Simanovski has not shown how his right to a fair trial was prejudiced. His argument is meritless.
V. Sentencing
Simanovski argues that the trial court erred in imposing a standard range sentence. Alternatively, he argues that he was denied effective assistance of counsel when his trial counsel did not review his criminal history. We disagree.
Generally, a sentence within the standard range is not appealable. State v. Henderson, 99 Wn. App. 369, 372-73, 993 P.2d 928 (2000). Nevertheless, an appellant may challenge the procedure the trial court used to impose a standard range sentence. State v. Ammons, 105 Wn.2d 175, 182-83, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986).
Here, Simanovski's challenge is not aimed at the length of his sentence per se, but at the trial court's alleged errors in determining his standard range sentence. First, he claims that the trial court erred in determining his criminal history under RCW 9.94A.500(1) and RCW 9.94A.530(2). "Despite the absence of any evidence of additional criminal history, the judgment and sentence reflected a finding that Mr. Simanovski had 14 prior felony convictions and an offender score of 13." Br. of Appellant at 22-23.
But Simanovski failed to challenge the criminal history as presented by the State. In fact, his counsel stated, "Judge, I didn't review the criminal history indicated by the counsel, but I'm sure that it's accurate. Once you get over nine or ten I don't. . . ." RP (October 7, 2005) at 35. Where the defendant affirmatively acknowledges or stipulates to the criminal history as presented by the State, the State does not need to introduce copies of prior convictions or otherwise prove them by a preponderance of the evidence. State v. Ross, 152 Wn.2d 220, 231-32, 95 P.3d 1225 (2004); State v. McCorkle, 88 Wn. App. 485, 494 n. 5, 945 P.2d 736 (1997), aff'd, 137 Wn.2d 490 (1999). Thus, the trial court did not err.
Second, Simanovski claims that the trial court abused its discretion in not determining whether any of his prior convictions encompassed the same criminal conduct under RCW 9.94A.525(5)(a)(i) and RCW 9.94A.589(1)(a). Two or more crimes are considered the "same criminal conduct" for sentencing purposes if they: (1) require the same objective criminal intent; (2) are committed at the same time and place; and (3) involve the same victim. RCW 9.94A.589(1)(a). If any one of these elements is missing, multiple crimes cannot be considered to be the same criminal conduct; the court must count these crimes separately in calculating the offender score. State v. Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993); see also State v. Johnson, 49 Wn. App. 239, 242, 742 P.2d 178 (1987), review denied, 110 Wn.2d 1006 (1988).
Simanovski is correct that the record contains no express findings on any of the "same criminal conduct" elements. Br. of Appellant at 24. But we treat the trial court's calculation of Simanovski's offender score as an implicit determination that his crimes did not constitute the same criminal conduct. State v. Channon, 105 Wn. App. 869, 877, 20 P.3d 476, review denied, 144 Wn.2d 1017 (2001). And we will not disturb an implicit determination absent an abuse of discretion or misapplication of the law. Channon, 105 Wn. App. at 877.
Here, the record clearly reflects that all of Simanovski's prior crimes did not involve the same objective criminal intent. Therefore, element two of the "same criminal conduct" analysis is not met. And the trial court correctly counted these crimes separately in calculating Simanovski's offender score.
Finally, although Simanovski claims that his trial counsel "abdicate[ed]" the "most basic responsibility" by not reviewing his criminal history, he fails to show how counsel's allegedly deficient performance prejudiced him. Br. of Appellant at 25; see Strickland 466 U.S. at 687; In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005). Therefore, Simanovski has not met his burden of showing that trial counsel was ineffective.
Simanovksi has not shown us how or why the State's calculation of his criminal history is incorrect.
VI. Alleged Blakely Error Where Trial Court
Found the Facts of Prior Convictions Simanovski argues that the trial court erroneously sentenced him when it did not submit the fact of his prior convictions to the jury. We disagree.
First, the fact of a prior conviction does not have to be submitted to a jury. The Supreme Court has consistently stated, " 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 proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (emphasis added). And although Simanovski speculates about the continuing vitality of this doctrine, neither federal nor state case law requires that we retreat from the authority holding that a right to a trial by jury does not exist for the fact of prior convictions.
Second, Simanovski and his counsel agreed with the State's statement of criminal history. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi are not implicated when there is an admission. Blakely, 542 U.S. at 310.
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., PENOYAR, J., concur: