Opinion
No. 59418-4-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-05699-6, Michael J. Fox, J., entered February 15, 2007.
Affirmed by unpublished per curiam opinion.
Ron Waterman appeals his judgment and sentence for two counts of attempted first-degree kidnapping and one count of first-degree burglary. We conclude that the jury instructions that he challenges satisfy the jury unanimity requirement of State v. Petrich. Moreover, substantial evidence supported each of the alternative means of attempted first-degree kidnapping. The prosecutor's remarks during closing were not improper. We also conclude that the issues Waterman raises in his statement of additional grounds do not warrant relief. We affirm.
101 Wn.2d 566, 569, 683 P.2d 173 (1984).
We deny Ron Waterman's pro se Motion to Replace Lost Brief and Motion to Strike Reply Brief Attached to Supplemental Issue for Appeal. This court previously denied Waterman's request to proceed pro se on appeal. We also deny Waterman's Motion for Leave to File Supplemental Reply and Motion to Strike Reply Brief Attached to Supplemental Issue for Appeal, dated April 3, 2008, submitted by counsel.
In December 2004, Ron Waterman met Guzel Bagaveeva, a woman from the Tartar region in Russia, over the Internet. After correspondence and a few visits, Bagaveeva received a fiancé visa to enter the United States, and the two were married in May 2006 in Massachusetts. Bagaveeva brought her son, R.B., to live with them. Bagaveeva moved out of Waterman's home with her son on June 9, 2006. She and her son flew to the Seattle area where she moved in with Fanil Fatihov, a Tartar man living in Kenmore. She had also met him on the Internet.
Waterman searched extensively for Bagaveeva, including contacting her parents and a detective agency in Russia. He discovered through cell phone records that she was living in the Seattle area. Waterman rented a car and drove to Seattle. He purchased surveillance equipment, a stun gun, a Taser gun, a knife, hunting equipment, and various other items for his trip.
In Kenmore, Waterman located where Bagaveeva and her son were staying. He let himself into the house, armed with the stun gun and Taser gun. He also carried a duffle bag containing rope, a knife, handcuffs, large trash bags, gloves, duct tape, and thumb cuffs. When he located Bagaveeva in a room of the house, he put the stun gun to her neck and squeezed the trigger. Thereafter, a struggle and confrontation ensued, and her son, R.B., tried to come to Bagaveeva's rescue. Waterman ordered both of them to sit on the floor and, threatening Bagaveeva with the Taser gun, he demanded answers to his questions. After some time, Bagaveeva persuaded Waterman to move into the living room where they continued talking. Shortly thereafter, Fatihov arrived home and called the police.
The police arrested Waterman immediately upon arriving at the house. A police search revealed the various items Waterman brought with him in his bag and car. It also revealed that the rear windows of the car were tinted with black plastic. Waterman willingly spoke with police. He admitted to tracking down Bagaveeva and coming to Seattle to determine the state of their marriage. He also explained that the equipment and weapons he brought with him were not intended to be used on Bagaveeva or R.B., but rather to protect himself from Fatihov, whom he feared was part of the Russian mafia.
The State charged Waterman with two counts of attempted first-degree murder (domestic violence), two counts of attempted first-degree kidnapping (domestic violence), and one count of first-degree burglary (domestic violence). Waterman testified in his own defense at trial. A jury acquitted him on the attempted murder counts, but found him guilty of attempted kidnapping and burglary.
Waterman appeals.
JURY INSTRUCTIONS
Waterman argues that both the unanimity instruction and the "to convict" instruction given for the burglary charge permitted the jury to convict him without unanimously agreeing on which assault was proved beyond a reasonable doubt. We disagree.
A jury must unanimously agree on the act that supports a conviction. When the State alleges multiple acts, any of which are sufficient to prove a count charged, the State must either elect the act upon which it will rely for conviction, or the court must instruct the jury that it must unanimously agree that one particular act was proved beyond a reasonable doubt. An instruction is adequate where it addresses the requirement of jury unanimity "such that the ordinary jury would interpret it to mean that the jury must be unanimous on the act underlying the conviction."
State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984).
Id. at 572.
State v. Moultrie, ___ Wn. App. ___, 177 P.3d 776, 779-80 (2008).
We review a challenged jury instruction de novo, in the context of the instructions as a whole.
State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007).
Here, Waterman did not object at trial to the jury instructions given. However, we address this issue because it is one of constitutional magnitude.
Instruction 23, the unanimity instruction, stated:
The State alleges that the defendant committed acts of assault during the conduct charged in Count V. To convict the defendant of Burglary in the First Degree, one particular act of assault must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of assault.
Clerk's Papers at 65 (Jury Instruction 23) (emphasis added).
Clerk's Papers at 65 (Jury Instruction 23) (emphasis added).
The jury heard evidence that Waterman assaulted Bagaveeva by kicking, hitting, and struggling with her, using a Taser gun on her, and pulling her hair. Waterman contends that because the instruction did not repeat the words "beyond a reasonable doubt" at the end of the second sentence, the jury may have believed that the proof required for each type of alleged assault varied. He argues this permits the jury to find some allegations proved by less than the "beyond a reasonable doubt" standard.
We note that the challenged instruction is based on the wording of the 2005 version of WPIC 4.25 that was in effect at the time of trial.
Waterman relies on State v. Ellis. However, this court recently rejected his argument in State v. Moultrie. There, a jury instruction nearly identical to the one challenged here was given. This court held that the instruction satisfied the unanimity requirement because an ordinary juror would read the instruction to require the jury to unanimously agree on which act was proved beyond a reasonable doubt.
71 Wn. App. 400, 859 P.2d 632 (1993).
___ Wn. App. ___, 177 P.3d 776, 779-80 (2008).
Id. at 779.
Id. at 780.
Here, like the instruction in Moultrie, Instruction 23 clearly and accurately conveyed that the jury must unanimously agree that one act of assault is proved beyond a reasonable doubt and that the jury must unanimously agree on which act has been proved. We conclude that it is unnecessary to repeat the phrase "beyond a reasonable doubt" in the last clause of the sentence after the word "proved." An ordinary juror would read the phrase "which act has been proved" to refer back to the "one particular act" that "must be proved beyond a reasonable doubt" in the first clause.
Moreover, Waterman argues that Instruction 19, the "to convict" instruction, merely informs the jurors that they must find he has assaulted a person inside the building. He claims it does not explain that each juror must agree that at least one act of assault was proven beyond a reasonable doubt. We again disagree.
Instruction 19 states:
To convict the defendant of the crime of burglary in the first degree as charged in Count V, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 2nd of August 2006 the defendant unlawfully entered a building;
(2) That the entering was with intent to commit a crime against a person therein;
(3) That while in the building the defendant assaulted a person; and
(4) That the acts occurred in the State of Washington. . . .
Clerk's Papers at 61 (Jury Instruction 19) (emphasis added).
Clerk's Papers at 61 (Jury Instruction 19) (emphasis added).
The trial court instructed the jury to "consider the instructions as a whole." We presume the jury followed the instructions given. In following these instructions, the ordinary juror would read Instructions 19 and 23 together with respect to the common elements of assault. There is no reason to conclude the jurors would have been confused about their duty to be unanimous with respect to at least one act of assault. Thus, we conclude that both contested instructions satisfy the requirement for jury unanimity.
Clerk's Papers at 43 (Jury Instruction 1).
See State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).
Waterman next argues that because the trial court did not ask the jury to disclose which means it convicted him on, and substantial evidence does not support each of the alternate means by which the State alleged he committed attempted kidnapping, his right to receive a unanimous verdict was violated. We disagree.
Criminal defendants in Washington have a right to a unanimous jury verdict. "Unanimity is required as to guilt, but not as to the means by which the crime was committed, so long as substantial evidence supports each alternative means charged."
Wash. Const. art I, § 21.
State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988).
Here, in order to prove Waterman committed attempted kidnapping as charged, the State had to establish that he attempted to abduct Bagaveeva and R.B. with (1) the intent to facilitate the commission of murder in the first degree, (2) with the intent to inflict bodily injury on them, and/or (3) with the intent to inflict extreme mental distress upon them.
The State presented evidence that Waterman, after searching extensively for Bagaveeva, drove from Massachusetts to Kenmore, nearly non-stop. He entered the Kenmore home with a stun gun, a Taser gun, nylon rope, handcuffs, a box cutter, duct tape, two pairs of thumb cuffs, large black trash bags, and gloves. His car also contained a gutting knife, a ball gag, leg irons, pruning shears, and Ziploc bags. He brought surveillance equipment including camouflage and black clothing, a night vision monocular, binoculars, a digital camera, a listening device, and a GPS tracking system. He also brought field dressing deer gutting gloves, a deer drag, a green plastic parka, fake facial hair, a hat with dreadlocks attached, plastic window tinting, and a laptop computer. In addition, Waterman shaved all visible hair off his body.
The jury's acquittal on the attempted murder counts does not alter the fact that the record contains evidence sufficient to support a conviction based on all alternative means. Unanimity as to guilt, which Waterman received, is all that is required here.
PROSECUTORIAL misconduct
Waterman contends the prosecutor's remarks during closing argument constitute misconduct. We disagree.
To determine whether a prosecutor's comments constitute misconduct, a reviewing court first decides whether the comments were improper, and, if so, whether a substantial likelihood exists that the comments affected the jury.
State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
Allegedly improper remarks by a prosecutor must be viewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. "Courts afford a prosecutor wide latitude in closing argument to draw and express reasonable inferences from the evidence." Where a criminal defendant testifies in his own defense, "his credibility may be impeached and his testimony assailed like that of any other witness. . . ."
Id.
State v. Thach, 126 Wn. App. 297, 316, 106 P.3d 782 (2005).
Brown v. United States, 356 U.S. 148, 154, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958).
Here, Waterman argues that the prosecutor mischaracterized the evidence and invited the jury to reach a verdict based on passion and prejudice rather than the evidence presented. Waterman also contends that the prosecutor's remarks shifted the burden of proof.
The jury heard about the surveillance equipment, weapons, and other items Waterman took to Seattle. The jury also heard Waterman testify about why he went to Seattle and how he intended to use the weapons and other items. On direct examination, Waterman did not explain the purpose of every item. When asked during cross-examination, he explained the purpose of several additional items.
The State's theory was that Waterman drove to Seattle intending to kidnap and murder Bagaveeva and her son. In closing, the prosecutor argued that jurors should consider Waterman's credibility just like any other witness and consider whether he gave complete answers. The prosecutor stated:
Now, the defendant explained to you on the direct examination when he was presenting his evidence only a few of the items and their explanation. He didn't talk to you about the field dressing gloves. He didn't talk to you about the ball gag. He didn't talk to you about the pruning shears. He didn't talk to you about the rope. . . . I asked him about that stuff. I gave him a chance to tell you what it was for.
And are you satisfied with his explanations? Because if you are not, that is evidence. What he doesn't say is as much evidence as what he does say. Once he is sitting in that chair, he is just like any other witness . . . and you have to look at him and decide, "Is he telling me something that makes any sense?" And his explanations make no sense.
Report of Proceedings (Dec. 14, 2006) at 57-58.
Report of Proceedings (Dec. 14, 2006) at 57-58.
The prosecutor also stated:
His preparation was not for the Mafia. These items are not self-defense items . . . if you are going in to a situation and you believe you need to defend yourself, where is your gun when you have perfect access to one? . . . Why don't you bring a gun? Because he is not acting in self-defense, and guns make noise and guns leave messes and guns can be traced. You put a garbage bag over somebody's head, it doesn't make a mess. You take somebody in the woods and cut their throat and let them bleed in the woods, and there is no mess.
Report of Proceedings (Dec. 14, 2006) at 51.
Report of Proceedings (Dec. 14, 2006) at 51.
Here, the State's comments fairly argued the evidence in the record and the credibility of Waterman as a witness. Moreover, the prosecutor also reminded jurors to make decisions on the evidence and not on their feelings about the case or on their passions or predispositions.
In sum, Waterman fails to show that the State's remarks constitute misconduct.
Statement of Additional Grounds
Waterman filed pro se a statement of additional grounds raising several additional issues for review. None warrant relief.
Without citing authority, Waterman argues the jury instructions were fatally flawed because they did not define what legally constitutes "extreme mental distress." Trial courts must define technical words and expressions used in jury instructions, but need not define words and expressions that are of common understanding. When a statute defines a term, the court must instruct the jury on that specific legal definition. Because "extreme mental distress" is an expression of common understanding, the trial court did not abuse its discretion in not defining it.
State v. Allen, 101 Wn.2d 355, 358, 678 P.2d 798 (1984).
Id. at 361-62.
See State v. Schimmelpfennig, 92 Wn.2d 95, 100, 594 P.2d 442 (1979).
Waterman next argues that the State did not timely identify what conduct constituted the substantial step for the attempted kidnapping charges. The State charged Waterman by amended information with two counts of attempted first-degree kidnapping and expressly alleged that "attempt as used in the above charge means that the defendant committed an act which was a substantial step towards the commission of the above described crime with the intent to commit that crime. . . ." The information alleges that the attempted kidnapping offenses were of the "same or similar character and based on the same conduct as another crime charged herein. . . ." The information also charged Waterman with two counts of attempted first-degree murder and one count of first-degree burglary. The information alleged the following: "[Waterman] did enter and remain unlawfully in a building . . . with intent to commit a crime . . . and while in such building . . . did assault Guzel R. Bagaveeva. . . ." The information properly identifies the elements of the crimes charged and also alleges facts to support every element of the offenses. Thus, the information adequately put Waterman on notice that burglary constituted the substantial step for the two counts of attempted kidnapping.
Clerk's Papers at 16-17.
Id.
Clerk's Papers at 17.
See State v. Leach, 113 Wn.2d 679, 688, 782 P.2d 552 (1989).
Waterman next contends that Washington's criminal attempt statute, RCW 9A.28.020, is unconstitutionally vague because the meaning of "substantial step" is not defined. Contrary to his argument, the phrase "substantial step" clearly advises the public that mere preparation to commit a crime is not a criminal offense, and the statute is not unconstitutionally vague.
State v. Cozza, 19 Wn. App. 623, 626, 576 P.2d 1336 (1978).
Waterman next argues that the jury failed to reach a unanimous verdict on the means by which he committed attempted kidnapping. We addressed this argument previously in this opinion.
Waterman next argues that "extreme mental distress" is a lesser included offense to the attempted murder charges on which he was acquitted. He argues that it violates double jeopardy that the jury may have convicted him of attempted kidnapping based on his intent to inflict extreme mental distress on his victims. This argument has no apparent legal or factual basis, and we reject it.
Finally, Waterman argues the trial court abused its discretion by excluding evidence supporting his theory that Bagaveeva's claims stem from the fact that a domestic violence waiver is her "only option to avoid deportation." A defendant does not have a constitutional right to present irrelevant evidence. Here, neither party could establish that Bagaveeva knew the status of her immigration visa at the time of the incident (i.e. that she did not have "married" status yet). Thus, the trial court properly ruled that evidence about her status and whether she had an immigration-related motive to fabricate the claims was not relevant to her credibility as a witness. Accordingly, the court properly sustained the State's objection when Waterman attempted to elicit testimony from Bagaveeva about a K-1 visa domestic violence waiver.
State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
We affirm the judgment and sentence.