Opinion
No. 26004-6-III.
April 29, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 06-1-01113-2, Vic L. VanderSchoor, J., entered March 15, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, J., and Thompson, J. Pro Tem.
Scott A. Sohler appeals his Benton County voyeurism conviction and upward exceptional sentence, contending ineffective assistance of counsel, evidentiary error, and prosecution misconduct tainted his trial. He raises a novel issue that the jury lacked the expertise to decide the evidence to support his exceptional sentence. Pro se, Mr. Sohler asserts an improper police investigation. We affirm.
FACTS
A. Ineffective Assistance and Conflict of Counsel
The Sohlers and the Carpenters are neighbors. When the Carpenters' daughter turned 18, Mr. Sohler gave her a boombox, in which a hidden pinhole camera was later found. The boombox was wrapped in a plain, cardboard box. Ms. Carpenter testified this was the first time Mr. Sohler had given her a gift. The evidence was disputed as to who first suggested the boombox be placed in the Carpenters' bathroom. Mr. Sohler picked the position of the shelf and then had his son install it. When placed on the shelf, the boombox faced the shower.
After about a year and a half, Ms. Carpenter's younger brother, Corey, was at the Sohlers' home with several boys, including the Sohlers' son, Gage. The boys were looking for darts when Corey noticed a video tape on a shelf above the dart board. Gage and Corey thought it was a video they made when they were younger and left it until later that night, when the boys decided to watch it. The video showed Ms. Carpenter naked in the Carpenters' bathroom on different occasions. Corey became angry, turned off the tape, and went home. Corey first told Ms. Carpenter's boyfriend, who was at the Carpenters' home. Corey related what he had seen and then started to cry. Corey next told his dad. Together they went to the Sohlers' home to retrieve the tape. Gage brought the video to them and broke it after confirming its contents. Corey then ripped the film out of the cassette. They threw the damaged video in the garbage.
In order to eliminate any confusion between the sons with their fathers, Corey and Gage will be referred to by their first names.
The police, who were called the next morning, found a pinhole camera in the boombox. The damaged video was recovered but could not be repaired. Mr. Sohler was charged with voyeurism, including notice of two aggravating factors: invasion of privacy and a high degree of sophistication or planning.
Ms. Carpenter testified at trial that Mr. Sohler had made her feel uncomfortable in the past by staring at her while she washed her car. Ms. Carpenter's grandfather testified Mr. Sohler told him about placing a small camera in the nose of a remote-control airplane to observe where the airplane was flying. A co-worker of Mr. Sohler's testified Mr. Sohler told him about using a "hidden camera" to record his sons stealing from him. Report of Proceedings (RP) at 307.
Before trial, the court excluded the hidden-camera theft tapes as irrelevant, but allowed testimony regarding their existence. Without objection, Officer Michael Weatherbee testified that he viewed the tapes, which showed Mr. Sohler's son in his father's bedroom looking through a cabinet or night stand and talking to someone outside the room; he appeared unaware he was being video taped.
After the State rested, the prosecutor pointed out to the court, outside the presence of the jury, considering chapter 9.73 RCW, that the recording in the Sohlers' bedroom was not legal and if Mrs. Sohler testifies to it, she may be subjecting herself to criminal liability. Defense counsel agreed she would need to be warned. Mrs. Sohler testified on behalf of Mr. Sohler for 30 pages of direct and cross-examination, but not about the theft recordings.
Following her testimony, the State again asked to admit the theft tapes. Then, defense counsel informed the court that he had discussed with Mrs. Sohler the possible criminal implications of the recordings, and "we decided to not have her testify at all about that tape or have Brandon Roberts testify that he was the person in the tape." RP at 495. Defense counsel explained that others could supply the necessary testimony rather than risking her incrimination — "[b]esides that, the two co-workers have already testified that Mr. Sohler — Mr. Sohler told him that he'd put out bait, set up the camera, set up some way to tape his son, the son denied it, he showed him the same tape and the crime is solved." Id.
Corey testified he had never secretly video taped anyone, did not know how to use a small recording device, and had a good relationship with his sister. The court allowed Gage to testify that he was excited and Corey "appeared the same." RP at 446. The court excluded Gage's testimony about what Corey allegedly said.
During closing, the prosecutor stated, "Has there been any evidence whatsoever of any motive on the part of Corey Carpenter to do something like that to his sister? There hasn't been any." RP at 525. Defense counsel did not object.
The jury found Mr. Sohler guilty of voyeurism, with two special verdict findings that the crime entailed a high degree of sophistication or planning and involved an invasion of Ms. Carpenter's privacy. Relying on the jury's special findings, the court imposed an exceptional sentence upward of 24 months. Mr. Sohler appealed.
ANALYSIS
Mr. Sohler contends he was denied a fair trial based on his counsel's decision not to question Mrs. Sohler about the video recording of Mr. Sohler's son and because his counsel advised Mrs. Sohler, creating a conflict of interest. While Mr. Sohler argues his concerns are separate, he mainly briefed and argued the Strickland factors. Thus, we treat the matters together as they appear merged.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
To prevail on a claim of ineffective assistance of counsel, a defendant must prove (1) defense counsel's conduct was deficient because it fell below an objective standard of reasonableness and (2) the deficient conduct was prejudicial. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987) (citing Strickland, 466 U.S. at 687). "A failure to establish either element of the test defeats the ineffective assistance of counsel claim." In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). We strongly presume that counsel's representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Legitimate trial strategy or tactics generally cannot serve as the basis for a claim of ineffective assistance of counsel. Id.
Mr. Sohler argues defense counsel formed an attorney-client relationship with Mrs. Sohler that was a conflict with his representation of Mr. Sohler. But, a review of the record shows the prosecutor and defense counsel agreed Mrs. Sohler should be warned about possible criminal liability if she testified to video taping Mr. Sohler's son without his knowledge. Defense counsel then conferred with Mrs. Sohler over lunch and told the court " we decided to not have her testify at all about that tape." RP at 495 (emphasis added). This was a tactical decision and does not amount to deficient performance. We will not speculate further about how this may have impacted Mr. Sohler in the context of a possible conflict of interest.
Further, even if deficient performance was established, Mr. Sohler does not establish prejudice. Prejudice is not presumed. Mr. Sohler must show that the outcome of the trial would have been different. He does not. McFarland, 127 Wn.2d at 334-35. Even Mr. Sohler's trial counsel explained that Mr. Sohler's co-workers had supplied the same information to the record that Mrs. Sohler did not testify about. Therefore, Mr. Sohler does not establish any harm from the missing testimony, or any prejudice in his ability to have argued that point at trial.
Given all, Mr. Sohler has failed to establish he was denied a fair trial based on defense counsel's actions.
B. Evidence Rulings
The issue is whether the trial court erred by abusing its discretion in its evidence rulings allowing Officer Weatherbee's testimony about the theft video tape contents and not allowing evidence of Corey's alleged arousal at viewing the video tape of his sister.
We review a trial court's evidentiary rulings for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or reasons. Id. The rules of evidence guide the trial court's discretion in evidentiary matters. State v. Atsbeha, 142 Wn.2d 904, 917, 16 P.3d 626 (2001).
Mr. Sohler first contends Officer Weatherbee wrongly commented on the content of the theft video tape, but no objection was interposed. Generally, evidentiary errors are not of constitutional magnitude and are harmless unless the trial outcome would have differed had the error not occurred. State v. Wade, 98 Wn. App. 328, 333, 989 P.2d 576 (1999). Further, Mr. Sohler relies on distinguishable cases showing that evidence obtained in violation of RCW 9.73.030 (the Privacy Act) is inadmissible. Mr. Sohler was charged with making the theft video.
Mr. Sohler next contends the trial court erred in not allowing testimony of Corey's alleged arousal when viewing his sister on tape. Under ER 402, relevant evidence is admissible. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ER 401. Even relevant evidence may be excluded if its probative value is outweighed by the "needless presentation of cumulative evidence." ER 403. The court allowed limited testimony on this point. Gage testified he was excited and Corey "appeared the same." RP at 446. Additional evidence would have been cumulative. The court did not abuse its discretion in excluding any additional arousal testimony.
C. Prosecutorial Misconduct
The next issue is whether prosecutorial misconduct denied Mr. Sohler a fair trial. Mr. Sohler contends the prosecutor improperly commented on excluded evidence regarding Corey's reaction to seeing the video of his sister.
To prevail on his claim of prosecutorial misconduct raised for the first time on appeal, Mr. Sohler bears the burden of proving that the remark was "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Stenson, 132 Wn.2d at 719 (citing State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995)). Mr. Sohler does not meet this standard.
The prosecutor's comment that Corey had no motive to video tape his sister is inferred from the evidence. We look at the comments "`in the context of the total argument.'" State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 321 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). A "prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence." Stenson, 132 Wn.2d at 727. Based on this record, nothing shows Corey had a motive or the necessary skills to video tape his sister. He was surprised and upset at finding the video at the Sohlers' home. And, if the prosecutor's remark was improper, a curative instruction would have easily neutralized any resulting prejudice. Accordingly, Mr. Sohler fails to meet the standard to raise this issue for the first time on appeal.
D. Special Verdict
The issue is whether the jury was properly instructed to determine if facts existed that would support the specified exceptional sentencing factors and, if so, whether sufficient evidence exists to support the jury's findings that supported his exceptional sentence.
Mr. Sohler argues insufficient evidence shows the crime involved a high degree of sophistication or planning. While Mr. Sohler does not specifically complain that the jury also found the aggravating factor of invasion of Ms. Carpenter's privacy, we address that factor as well. The court specifically stated in its findings of fact and conclusions of law in support of its exceptional sentence that either aggravating factor would support an exceptional sentence. Therefore, Mr. Sohler's challenge to only one of the jury's findings is technically moot. See In re Det. of V.B., 104 Wn. App. 953, 959, 19 P.3d 1062 (2001) (when a court cannot fashion a remedy the issue is moot). Nevertheless, while sufficient evidence supports both findings, we solely consider Mr. Sohler's limited challenge to the high degree of sophistication or planning factor.
An evidence sufficiency challenge requires us to view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). "All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." Id. "A claim of insufficiency admits the truth of the State's evidence" and all reasonable inferences. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
An exceptional sentence may be imposed based on a jury finding that "[t]he offense involved a high degree of sophistication or planning." RCW 9.94A.535(3)(m). Exceptional sentence fact-finding is generally required by a jury unless a defendant submits to judicial exceptional sentence fact-finding or stipulates to the exceptional sentencing facts. Based upon Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), we do not agree that a jury is unknowledgeable or unsophisticated to preclude deciding these exceptional sentencing facts. Here, a boombox was purchased, a small camera installed inside, a shelf built in Ms. Carpenter's bathroom, the boombox positioned on the shelf, and then Ms. Carpenter's actions were recorded. Drawing all reasonable inferences in favor of the State, these facts are sufficient to support the jury's finding that the crime involved a high degree of sophistication or planning. Thus, the sentencing court properly relied upon this factor in imposing an exceptional sentence.
E. Additional Grounds
In his statement of additional grounds for review, Mr. Sohler is concerned about an inadequate police investigation, but he fails to argue as to how these alleged deficiencies would have changed the trial outcome. Further, his concerns are based on evidence outside this court's record. Our review is limited to issues contained in the record. See McFarland, 127 Wn.2d at 338 n. 5 ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record").
Accordingly, Mr. Sohler's arguments are not properly before this court.
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.
WE CONCUR:
Korsmo, J.
Kulik, A.C.J.