Opinion
No. 24585-3-III.
August 7, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-02077-7, Gregory D. Sypolt, J., entered October 11, 2005.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Brown and Kulik, JJ.
This appeal follows David Sukin's convictions for second degree assault and violation of a criminal protection order. Mr. Sukin assigns error to the trial judge's decision to admit GPS records that refuted Mr. Sukin's alibi. The records were properly authenticated by an appropriate custodian. And he assigns error to the sentencing judge's refusal to conclude that the convictions were for the same criminal conduct. Both decisions are well within the discretionary authority of the judge. We affirm the convictions and the sentence.
Global Positioning System.
FACTS
David Sukin and Darla Campbell are married. The police arrested Mr. Sukin 25 times in the past for domestic violence. The court signed a criminal protection order. It required Mr. Sukin to stay away from her.
Mr. Sukin stayed with Ms. Campbell and violated the protection order. They again argued. The argument escalated. Ms. Campbell packed her belongings to leave. Mr. Sukin beat her until she was unconscious.
The State charged Mr. Sukin with second degree assault and violation of a domestic violence criminal protection order.
Ray O'Donnell testified that on the night of the assault Mr. Sukin stayed at his apartment all night. And he testified that he took Mr. Sukin to an appointment the next morning. Mr. O'Donnell drives long haul trucks for Night Transportation. It equips its trucks with GPS units. And the GPS records show that Mr. O'Donnell was not in Spokane the night of May 6 or the morning of May 7, the time of the assault.
The jury found Mr. Sukin guilty of second degree assault and violation of a criminal protection order. The court sentenced Mr. Sukin based on an offender score of five. Mr. Sukin argued that the offender score should have been four because the crimes satisfied the requirements of the same criminal conduct.
DISCUSSION
Authentication of GPS Records
Mr. Sukin first argues that the GPS exhibits that documented Mr. O'Donnell's whereabouts were not properly authenticated. The custodian of those records was only the recipient of the records and not their author. Mr. Sukin argues that the custodian could not, therefore, properly authenticate the records because he neither prepared nor controlled the data. And the trial court erred in ruling otherwise.
We review a trial court's decision to admit business records for abuse of discretion. State v. Garrett, 76 Wn. App. 719, 722, 887 P.2d 488 (1995).
Hearsay is generally inadmissible. State v. King, 113 Wn. App. 243, 280, 54 P.3d 1218 (2002). Hearsay is an oral or written assertion, other than one made by the person while testifying at a trial, "offered in evidence to prove the truth of the matter asserted." ER 801(a), (c). But business records of an act or event are admissible despite the general prohibition against hearsay "if the custodian or other qualified witness testifies to its identity and the mode of its preparation." RCW 5.45.020; State v. Quincy, 122 Wn. App. 395, 399, 95 P.3d 353 (2004). The business record must be made in the "regular course of business, at or near the time of the act, condition or event." RCW 5.45.020; Quincy, 122 Wn. App. at 399.
RCW 5.45.020 states that "[a] record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."
We broadly interpret statutory terms such as "custodian" and "other qualified witness." Quincy, 122 Wn. App. at 399. The business records exception requires only that the witness have custody of the record as a regular part of his work to lay the foundation for its admission. RCW 5.45.020; Quincy, 122 Wn. App. at 399; State v. Ben-Neth, 34 Wn. App. 600, 603, 663 P.2d 156 (1983) (citing Cantrill v. Am. Mail Line, Ltd., 42 Wn.2d 590, 257 P.2d 179 (1953)). "It is not necessary that the person who actually made the record provide the foundation." Quincy, 122 Wn. App. at 399. And that is what happened here.
The witness here identified exhibit 23, explained how it was prepared, and indicated that it was made in the regular course of business. That is all that is required.
The court properly admitted the exhibit. Sentencing Same Course of Conduct
Mr. Sukin next contends that the violation of the protection order and the assault amount to the same criminal conduct. And his offender score should have reflected as much.
The sentencing court has discretion to conclude that two crimes amount to the same criminal conduct. State v. Burns, 114 Wn.2d 314, 317, 788 P.2d 531 (1990). And so we review for abuse of discretion. State v. Stockmyer, 136 Wn. App. 212, 218, 148 P.3d 1077 (2006). Multiple crimes encompass the "same criminal conduct" if they result from the same criminal intent, involve the same victim, and occur at the same time and place. RCW 9.94A.589(1)(a); Stockmyer, 136 Wn. App. at 218.
RCW 9.94A.589(1)(a) states: "[W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535. `Same criminal conduct,' as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim."
The sentencing judge here concluded that these two crimes did not amount to the same criminal conduct because "there is a different criminal intent for each of these offenses." Report of Proceedings (Oct. 7, 2005) at 22. That is because Mr. Sukin could have intended to visit Ms. Campbell but not assault her. Id. Indeed, the record here suggests that may well be what happened. And, in any event, those are tenable grounds for the court to conclude that these two crimes did not involve the same criminal conduct.
ADDITIONAL GROUNDS
Mr. Sukin also raises an issue pro se. He argues that he was not timely arraigned and that due to failures of his lawyer the issue was not appropriately brought to the judge's attention.
We review claims for ineffective assistance of counsel de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). A defendant must meet two requirements to prove that counsel was ineffective. State v. McFarland, 127 Wn.2d 322, 334-35, 337, 899 P.2d 1251 (1995); State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). First, he must show that "defense counsel's representation was deficient." McFarland, 127 Wn.2d at 334-35. The defendant must also show that he or she was prejudiced by the deficient representation. Id.; Stenson, 132 Wn.2d at 705-06. The threshold is that "but for" the errors the outcome would have been different. Stenson, 132 Wn.2d at 705-06; State v. Varga, 151 Wn.2d 179, 198, 86 P.3d 139 (2004).
Here, counsel apparently failed to show up at a hearing on time and that conduct certainly falls below an objective standard of reasonableness. But there is no prejudice. At a June 28 hearing, the trial judge accommodated the delayed arraignment by pushing back the trial date: "Counsel, it is very important for you to let me know . . . so I can set the dates to accommodate the arraignment issue for you." Clerk's Papers at 10.
The problem created by Mr. Sukin's tardy arraignment was the potential delay in his rule-mandated trial date. A defendant in custody is to be arraigned no later than 14 days after filing of the information. CrR 3.3(c)(1); CrR 4.1; State v. Chenoweth, 115 Wn. App. 726, 732, 63 P.3d 834 (2003). He must then be brought to trial 60 days after arraignment if he is detained in jail on a pending charge and within 90 days if not. CrR 3.3(b)(1)(i), (2)(i). The defendant must show that prejudice followed from the delayed arraignment. McFarland, 127 Wn.2d at 334-35. Mr. Sukin cannot do that because the trial judge set the trial date well within the prescribed time limits.
We therefore affirm the convictions and the sentence.
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.
BROWN, J., KULIK, J., concur.