Opinion
No. 35739-9-II.
March 11, 2008.
Appeal from a judgment of the Superior Court for Clallam County, No. 06-1-00395-0, Kenneth D. Williams, J., entered December 15, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Armstrong, J.
Edward A. Steward appeals his first degree kidnapping and second degree assault convictions with deadly weapon sentence enhancements. He argues that (1) the information failed to allege and the instructions failed to inform the jury that an assault is in the second degree when it does not amount to assault in the first degree; (2) Washington courts violate the separation of powers doctrine when they use the common law definition of "assault" to supplement a statute that does not define the term; (3) the "knowledge" jury instruction erroneously conflated mental states, thereby relieving the State of its burden to prove all elements of the charged crimes; and (4) trial counsel was ineffective in failing to discuss the case with Steward and failing to object to the "knowledge" jury instruction. We affirm.
FACTS I. Methamphetamine Delivery
Sometime before April 2006, methamphetamine addict Scott Schroeder bought methamphetamine from Edward Steward. When Schroeder discovered that the methamphetamine he purchased was counterfeit, he lied to Steward, offering to buy methamphetamine for Steward with no intention of doing so in order to recover the money that Schroeder had paid Steward for the counterfeit methamphetamine. Another methamphetamine addict, Harold Herring, delivered about $450 from Steward to Schroeder for the supposed methamphetamine purchase. But Schroeder kept Steward's money without buying methamphetamine for Steward, and called Steward to say, "[N]ow we're even." Report of Proceedings (RP) (Nov. 8, 2006) at 16.
Schroeder acknowledged that he had embarrassed Herring by keeping Steward's money. Feeling that Schroeder had "burned" him, Herring "was angry about it and . . . felt that [he had] disappointed [Steward]." RP (Nov. 7, 2006) at 99. Steward was also angry with Schroeder. After Schroeder left with Steward's money, Steward and Herring looked for Schroeder but could not immediately find him.
On April 10, 2006, Schroeder went to Mike Doty's house to retrieve video cards and a hard drive that Doty had borrowed. After learning Schroeder's location, Steward called Herring and Travis Reader and told them to meet him at Doty's house to recover the money from Schroeder. Herring armed himself with a .22 caliber revolver, Reader had a hammer, and Steward took a .357 revolver. At Doty's house, Steward, Herring, and Reader demanded, at gunpoint, that Schroeder return Steward's money. Steward yelled at Schroeder, demanding his money, and threatening to "kick his ass."
Schroeder then called his girlfriend and told her to give Steward money hidden in a closet in their house. Steward left Doty's house to retrieve the money from Schroeder's girlfriend; Reader and Herring remained behind with Schroeder. After receiving a phone call, Reader and Herring dragged Schroeder out of Doty's house at gunpoint, forced Schroeder into a car, and drove away. While Reader was driving, Schroeder opened the front passenger car door and jumped out. The police eventually arrested Reader, Herring, and Steward.
II. Charges and Pretrial Hearings
The State charged Steward with first degree kidnapping and second degree assault, while either Steward or an accomplice was armed with a deadly weapon. The State also charged Herring and Reader, as Steward's codefendants, with first degree kidnapping and second degree assault. In exchange for reduced jail time, Herring and Reader pleaded guilty and agreed to testify truthfully about their interactions with Steward and Schroeder.
The State also offered Steward a plea bargain, similar to Herring and Reader's plea bargains. According to defense counsel, Steward rejected the State's offer because he did not believe he had committed the crime of kidnapping.
In preparing for trial, Steward's counsel made sure he was current with changes in the law that might affect his client. He filed a CrR 3.6 motion to suppress evidence. He also interviewed Schroeder and Tammy Wright, the victim and his girlfriend, before trial. And he requested a continuance in order to follow up on new developments in the State's case; in so doing, defense counsel told the trial court that he had discussed the State's evidence with Steward, but not the Page 4 potential new witness statements.
III. Trial A. Codefendants, Witnesses, and Victim's Testimony
Doty, Herring, Reader, and Schroeder testified that Steward, Reader, and Herring, the three codefendants, forced their way into Doty's house at gunpoint and demanded that Schroeder return the money Herring had given him to buy methamphetamine for Steward.
Doty, Herring, Reader, and Schroeder testified that (1) Steward instructed his codefendants, Reader and Herring, to hold Schroeder at Doty's house until Steward could retrieve the money; and (2) after Steward left Doty's house, he called Herring and instructed Herring and Reader to take Schroeder to Kenny Stark's house. Schroeder testified that (1) Reader dragged him outside Doty's house while Herring held a gun to the back of his (Schroeder's) head; and (2) while Reader was driving, he (Schroeder) opened the front passenger car door and jumped out.
B. Steward's Testimony
Steward testified that (1) he parked the car while Herring and Reader first entered Doty's house; (2) he (Steward) was unaware that Herring and Reader were armed; (3) he (Steward) had no weapon himself; (4) he yelled at and threatened Schroeder, demanding his money back; (5) he (Steward) left to retrieve the money from Schroeder's girlfriend while Reader and Herring remained at Doty's house to discuss an alleged rape that they thought Schroeder had committed; (6) he (Steward) did not tell Herring and Reader to hold Schroeder or to take Schroeder to Stark's house; and (7) his attorney had reviewed only six pages of discovery with him and had "basically" never discussed the case with him.
C. Jury Instructions
The trial court gave the jury the following pertinent instructions:
Instruction 14, "Accomplice":
A person who is an accomplice in the commission of the crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of the crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or (2) aids or agrees to aid another person in planning or committing the crime.
The word "aid" means all assistance whether given by words, acts encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
Clerk's Papers (CP) at 45.
Instruction 21, "Knowledge":
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, facts or circumstances or result 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 or she acted with knowledge.
Acting knowingly or with knowledge also is established if a person acts intentionally.
CP at 52.
Defense counsel objected to jury instructions 16, 17, 18, and 31. He did not, however, object to the "accomplice" or "knowledge" instructions, numbers 14 and 21, respectively.
D. Jury Verdict and Sentence
The jury found Steward guilty of first degree kidnapping and second degree assault, while either Steward or an accomplice was armed with a deadly weapon.
At sentencing, Steward told the trial court, So I would like to express my apologies to you, [the prosecutor], and also want to thank my attorney for believing in me. I — we may have had some rough times during this whole ordeal but he believed in my innocence and not only was he my attorney, he was my only friend. I could tell him how I feel and he could tell me it's going to be okay. His wife went out and bought some clothes for trial so I could look presentable. And now I just want to take this time to thank [defense counsel] for everything he's done for me. . . .
RP (Dec. 15, 2006) at 31-32.
The trial court sentenced Steward to 48 months confinement for the first degree kidnapping conviction, and 25 months confinement for the second degree assault conviction to run concurrently. The trial court also imposed firearm and deadly weapon sentence enhancements totaling 228 months, to run consecutively with the underlying offenses. Steward appeals.
ANALYSIS
Steward argues that we should reverse and dismiss his convictions alleging multiple errors.
We review each in turn.
I. Assault A. Elements
Steward argues that absence of first degree assault is an element of second degree assault; therefore, we must reverse because (1) the State failed to allege this "element" in the information, (2) the trial court failed to include this "element" in the jury instructions, and (3) the State failed to prove this "element" at trial. This argument fails.
Although Steward's trial counsel did not challenge the information at trial, Steward may challenge the sufficiency of a charging document for the first time on appeal because it involves a question of constitutional due process. State v. Ward, 148 Wn.2d 803, 813, 64 P.3d 640 (2003).
1. Information
We review a charging document challenged for the first time on appeal under "the liberal standard" to determine (1) whether the necessary elements appear in any form, or by fair construction can be found, in the information; and if so (2) whether the defendant can nonetheless show he or she was actually prejudiced by the inartful language. State v. Mendoza-Solorio, 108 Wn. App. 823, 830, 33 P.3d 411 (2001); see also State v. McCarty, 140 Wn.2d 420, 425, 998 P.2d 296 (2000); State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992); State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P.2d 86 (1991)).
In support of his argument that absence of first degree assault is an element of second degree assault, Steward cites State v. Azpitarte, 140 Wn.2d 138, 995 P.2d 31 (2000). In Azpitarte, the sole issue was "[w]hether a second degree assault can serve as the predicate assault that enhances violation of a no-contact order from a gross misdemeanor to a felony under RCW 10.99.040(4)." Azpitarte, 140 Wn.2d at 140. In Azpitarte, our Supreme Court narrowly held that a second degree assault cannot serve as the predicate that makes the no-contact violation a felony under RCW 10.99.040(4). Azpitarte, 140 Wn.2d at 141. The Court further limited Azpitarte's holding to those instances "when the State additionally charges first or second degree assault" with a no-contact order violation. State v. Ward, 148 Wn.2d 803, 814, 64 P.3d 640 (2003). Such is not the case here; therefore, Azpitarte does not apply.
In contrast, and directly on point, is our recent opinion in State v. Keend, 140 Wn. App. 858, 166 P.3d 1268 (2007). In Keend, we held "that the phrase `not amounting to assault in the first degree' does not function as an essential element of second degree assault." Id. at 872 (quoting RCW 9A.36.021(1)(a)). In another recent opinion, we noted that "not amount[ing] to assault in the first or second degree" is not an essential element of third degree assault. State v. Blatt, 139 Wn. App. 555, 560, 160 P.3d 1106 (2007) (quoting Ward, 148 Wn.2d at 813). Although Blatt involved a charge of third degree, not second degree, assault, we focused on the need for the information to reflect only the degree of assault with which the State is charging a defendant. Thus, in Blatt, we held that "because the State did not charge Blatt with first or second degree assault, the information was sufficient" to charge third degree assault. Blatt, 139 Wn. App. at 560.
Finding Blatt and Keend controlling here, (1) we reiterate that the absence of first degree assault is not an essential element of second degree assault; and (2) we hold that because the State did not charge Steward with first degree assault, the information language charging Steward with only second degree assault was sufficient.
2. Jury instructions
Steward argues that the jury instructions are deficient because they did not instruct that absence of first degree assault is an element of second degree assault that the State must prove. Washington Supreme Court case law does not support Steward's argument. See Ward, 148 Wn.2d at 814. Because the absence of first degree assault is not an element of second degree assault and the State did not charge Steward with first degree assault, the jury to-convict instruction for second degree assault was not deficient. See Blatt, 139 Wn. App. at 560; Keend, 140 Wn. App. at 872.
B. Definition
Steward next argues that the Legislature's failure to define "assault" and the courts' using common law to define "assault" violate the separation of powers doctrine. This argument also fails.
We review statutory construction de novo. State v. Wadsworth, 139 Wn.2d 724, 734, 991 P.2d 80 (2000). We also assume that the Legislature considers the constitutionality of its enactments; therefore, the burden is on the challenging party to prove beyond a reasonable doubt that a statute is unconstitutional. State ex rel. Peninsula Neighborhood Ass'n v. Dep't of Transp., 142 Wn.2d 328, 335, 12 P.3d 134 (2000).
Although "the Washington Constitution contains no express separation of powers clause, the doctrine has been presumed throughout the state's history by the division of government into three separate branches." State v. Chavez, 134 Wn. App. 657, 666, 142 P.3d 1110 (2006) (citing Carrick v. Locke, 125 Wn.2d 129, 134-35, 882 P.2d 173 (1994)), review granted, 160 Wn.2d 1021 (2007). A government branch violates the doctrine when it "threatens the independence or integrity or invades the prerogatives of another." State v. Moreno, 147 Wn.2d 500, 505-06, 58 P.3d 265 (2002) (internal quotation marks omitted). But the doctrine does not require that the branches be "hermetically sealed off from one another" because they "must remain partially intertwined . . . to maintain an effective system of checks and balances, as well as an effective government." Carrick, 125 Wn.2d at 135.
We recently addressed an argument identical to Steward's in Chavez, 134 Wn. App. 657. We held in Chavez that using common law to define "assault" does not violate the separation of powers doctrine because (1) our Legislature has an established practice of defining prohibited acts in general terms, leaving to the judiciary the task of establishing specifics; (2) in RCW 9A.04.060, our Legislature has expressly provided that common law supplements all penal statutes; and (3) our Legislature has acquiesced to the courts' common law definition of "assault," not only by promulgating RCW 9A.04.060, but also by refraining from adopting a statutory definition to replace the common law definition for almost 30 years. Chavez, 134 Wn. App. at 657-68 n. 4 (citing Carrick, 125 Wn.2d at 136; State v. Smith, 72 Wn. App. 237, 241, 864 P.2d 406 (1993)). Applying Chavez here, we hold that the legislative and judicial branches of our state government have not violated the separation of powers doctrine in using common law to define "assault" in lieu of a statutory definition.
Our Supreme Court heard oral argument in Chavez on October 23, 2007. They had not filed their opinion as of the time we are filing this opinion in Steward's case.
Chavez, like Steward, argued that the courts have improperly enlarged the "assault" definition in the preceding century. Chavez, 134 Wn. App. at 668 n. 4. We previously rejected this argument. Chavez, 134 Wn. App. at 668 n. 4.
II. Jury Instructions
Steward also argues that the jury instructions conflated the mental states required to prove the charged crimes, thereby relieving the State of its burden to prove mens rea. This argument also fails.
Although Steward's counsel did not object to the knowledge instruction at trial, we review for the first time on appeal any alleged mandatory presumptions that relieve the State of the burden of proving an essential element of the offense because they are of constitutional magnitude. State v. Deal, 128 Wn.2d 693, 698-99, 911 P.2d 996 (1996).
A. Standard of Review
We review Steward's jury instruction argument de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). We presume jurors follow the instructions they are given. State v. Daniels, 160 Wn.2d 256, 264, 156 P.3d 905 (2007) (citing State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001)).
B. Mental States
Steward argues that the "knowledge jury instruction" conflated accomplice liability requiring knowledge with any intentional act committed by Steward, thereby relieving the State of its burden to prove the crimes' essential elements.
Instruction 14, the accomplice instruction, provided:
A person who is an accomplice in the commission of the crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of the crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word "aid" means all assistance whether given by words, acts encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
CP at 45.
Instruction 21, the knowledge instruction, provided:
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, facts or circumstances or result 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 or she acted with knowledge.
Acting knowingly or with knowledge also is established if a person acts intentionally.
CP at 52. Instructions 14 and 21 followed the 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 10.51, at 136 (Supp. 2005) (WPIC) and 11 WPIC 10.02, at 150 (1994), respectively.
We have previously held that the wpic knowledge jury instruction potentially allowed the jury to find the defendant guilty of third degree assault against a law enforcement officer without having to find that the defendant knew the victim was a law enforcement officer as required by the law of the case doctrine. State v. Goble, 131 Wn. App. 194, 202-03, 126 P.3d 821 (2005). We have since limited Goble's holding, however, to cases that require the State to prove two mental states. See State v. Gerdts, 136 Wn. App. 720, 728, 150 P.3d 627 (2007); State v. Boyd, 137 Wn. App. 910, 924, 155 P.3d 188 (2007).
Steward argues that the State had to prove two mental states to establish accomplice liability: (1) an intentional act that helped further the charged crimes, and (2) knowledge that the act would promote or facilitate the charged crimes. But Steward cites no authority for his proposition that accomplice liability requires the State to prove an intentional act. We are "not required to search out authorities, but may assume that counsel, after diligent search, has found none." State v. Logan, 102 Wn. App. 907, 911 n. 1, 10 P.3d 504 (2000) (citing DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).
Furthermore, neither the jury instructions here nor the accomplice liability statute required the State to prove an "intentional" act. See RCW 9A.08.020(3)(a); (accomplice liability jury instruction). On the contrary, the accomplice statute and jury instruction required the State to prove only that Steward knowingly promoted or facilitated the crimes of assault and kidnapping; accordingly there was no second mental state to conflate with the first. We hold, therefore, that Steward has failed to show that the trial court's knowledge instruction was error.
RCW 9A.08.020 provides,
(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it.
B. Harmless Error
Even if the jury instructions had erroneously conflated two mental states, any error would have been harmless. An erroneous jury instruction that omits an element of the offense is subject to harmless error analysis. Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). A constitutional error is harmless if we are convinced beyond a reasonable doubt that the jury would have reached the same result in the absence of the error. Neder, 527 U.S. at 15; State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). An error in a jury instruction that either omits or misstates an element is harmless if uncontroverted evidence supports that element. Neder, 527 U.S. at 18. Such is the case here.
Steward testified that he yelled at Schroeder and threatened to "kick his ass" if Schroeder did not return the methamphetamine money. After this threat, Schroeder called his girlfriend and told her to give Steward the money he kept in the closet. This uncontroverted evidence supports the mental-state element of Steward's first degree kidnapping conviction, namely that Steward intentionally held Schroeder for ransom or reward.
IV. Effective Assistance of Counsel
Steward argues that his trial counsel was ineffective because he failed (1) to discuss the case and discovery with Steward before trial, and (2) to object to the knowledge jury instruction. He fails to sustain his burden of proof.
A. Standard of Review
We review an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). To prove ineffective assistance of counsel, Steward must show both deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). "If either part of the test is not satisfied, the inquiry need go no further." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when, but for the deficient performance there is a reasonable probability that the outcome would have differed. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
B. Pretrial Discussions
Steward argues that his trial counsel was ineffective because he failed to review the discovery and to discuss the case with Steward. The record does not support Steward's assertions.
The record is replete with defense counsel's trial preparation, and it demonstrates that defense counsel discussed the case before trial with Steward. For example, on August 25, 2006, during a pretrial hearing, Steward's counsel told the trial court that he had been reading cases on pretext stops and had filed a CrR 3.6 suppression motion that incorporated recent changes in the law. On September 22, defense counsel stated that he had "received a written plea offer from the State, discussed it with [his] client yesterday and [his] client will reject it." RP (Sept. 22, 2006) at 4.
Steward's counsel also interviewed Schroeder and Wright, the victim and his girlfriend, before trial. In asking for a continuance, due to new developments in the State's case, so that he could have more time to interview potential witnesses and codefendants, Steward's counsel told the trial court,
My client most of the time thinks I'm an award winning lawyer. One time last week he wanted to fire me and represent himself but he trusts me, so when I talk to him about what the State's evidence is against him I tell him there's no Reader testimony, there's no Michael Doty testimony, there's no Harold Herring testimony. As far as I knew at the time there were none and in order for him to make an informed decision whether to accept this plea offer that was extended to him, he's asking me what's the State's case.
RP (Nov. 6, 2006) at 17-18 (emphasis added).
In explaining why Steward exercised his right to a jury trial, defense counsel explained,
[Steward] did, in fact, receive an offer from the State to plead guilty to the crimes — or without the enhancements, that would have left him, as I recall, with a 5 year sentence. He was adamant in more than one occasion with me both directly and in writing that he simply could not do that. He could not do that because he believed in his heart that he had not committed the crime of kidnapping Mr. Schroeder.
RP (Dec. 15, 2006) at 27-28. And during the sentencing hearing, Steward's counsel also told the trial court about his relationship with Steward and their ability to communicate. Defense counsel stated,
My job is to try to understand my client. Mr. Steward has made the most dramatic and remarkably good impression upon me since I first met him last June than any accused person I have ever met. He is always soft spoken, appreciative, gentle and sincere in his remarks to me.
RP (Dec. 15, 2006) at 27.
Furthermore, Steward's own statement to the trial court during his sentencing allocution supports defense counsel's assertion that they discussed the case before trial. Steward stated:
So I would like to express my apologies to you, [the prosecutor], and also want to thank my attorney for believing in me. I — we may have had some rough times during this whole ordeal but he believed in my innocence and not only he was my attorney, he was my only friend. I could tell him how I feel and he could tell me it's going to be okay. His wife went out and bought some clothes for trial so I could look presentable. And now I just want to take this time to thank [defense counsel] for everything he's done for me.
RP (Dec. 15, 2006) at 31-32.
Thus, contrary to Steward's assertions, the record shows that his trial counsel discussed the case and the State's evidence with Steward. Steward, therefore, has failed to overcome the strong presumption that he received effective assistance; nor has he shown that his counsel's performance fell below an objective standard of reasonableness.
C. Failure to Object to Instruction
Steward also argues that his trial counsel was ineffective because he failed to object to the knowledge jury instruction, which he alleges erroneously conflated the requisite mental states. Having already held that the jury instructions did not conflate the mental states, we further hold that Steward's counsel was not ineffective for failing to challenge the knowledge instruction on this ground.
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.
Houghton, C.J. and Armstrong, J. concur.