Opinion
No. 25699-5-III.
February 28, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 06-1-00743-7, Robert G. Swisher, J., entered November 16, 2006.
Affirmed in part and remanded by unpublished opinion per Kulik, J., concurred in by Brown, J., and Thompson, J. Pro Tem.
Michael Layton Webb appeals his conviction for one count of felony violation of a protection order. The felony status of the charge was based on the allegation that Mr. Webb had two prior convictions for violation of a protection order issued under chapter 26.50 RCW. He contends the State's evidence was insufficient to support the special verdict. We disagree.
The State acknowledges that remand for recalculation of Mr. Webb's offender score and resentencing is appropriate. Thus, we affirm the conviction and remand for resentencing.
FACTS
Michael Layton Webb was charged with felony violation of a protection order after he placed telephone calls to Catherine Hettinger in December 2005.
Between November 2003 and July 2005, Mr. Webb was involved in a romantic relationship with Ms. Hettinger. At the end of the relationship, Ms. Hettinger obtained a temporary protection order against Mr. Webb, effective July 18, 2005, through July 29, 2005. Ms. Hettinger was subsequently granted a permanent order for protection, effective July 2005 through July 2007. Both protection orders facially indicate that they are orders issued under chapter 26.50 RCW.
At trial, Ms. Hettinger testified that on December 12, Mr. Webb left a message on her cell phone. On December 14, she received a call on her cell phone from a telephone number she did not recognize. Ms. Hettinger accepted the incoming call, and immediately recognized the voice as that of Mr. Webb. Mr. Webb said that his truck had been broken down for 20 days, and that he was at the "golden arches." Report of Proceedings (RP) (Nov. 3, 2006) at 22. He further told Ms. Hettinger "I just wanted to kiss the one I loved," or "I wanted to see if that was you." RP (Nov. 3, 2006) at 22. Ms. Hettinger hung up the phone without responding and contacted the police. On both occasions, Ms. Hettinger was certain it was Mr. Webb who had called, because she had spoken with him on the telephone "thousands" of times. RP (Nov. 3, 2006) at 23.
Robert Santo Pietro, an employee of Interwest Tel and the owner of multiple pay phones in Kennewick, testified that the telephone number that was used to call Ms. Hettinger on December 14, 2005, originated from a pay phone located at a McDonald's restaurant in Kennewick, Washington. A call record report confirmed that two outgoing calls were placed to Ms. Hettinger's cell phone number from the McDonald's pay phone. Mr. Santo Pietro testified that one of the calls was not answered, while the other showed a duration of 38 seconds.
Officer Isaac Merkl of the City of Kennewick police department contacted Mr. Webb regarding the incident. Officer Merkl testified that when he asked Mr. Webb if he had contacted Ms. Hettinger, Mr. Webb stated he had not talked to her since the last time he violated the protection order. Mr. Webb also told the officer that his truck had been broken down since November 29, but denied calling Ms. Hettinger.
Mr. Webb also testified at trial. He stated that he was aware of the protection order, but asserted that he never called Ms. Hettinger on her cell phone in December 2005.
The State moved to admit exhibits 4 and 5. Exhibit 4 is a certified copy of a Benton County District Court judgment and sentence for violation of a court order, entered on November 9, 2005. The defendant is shown as Michael Layton Webb, date of birth April 30, 1958. Exhibit 5 consists of a certified copy of a document entitled "conditions of release" from Pasco Municipal Court for violation of other court orders, entered on November 14, 2005, and an attached citation. That exhibit indicates that the defendant, identified as Michael Layton Webb, date of birth April 30, 1958, pleaded guilty to the charge.
Over the defense's objection, the court admitted exhibits 4 and 5. Defense counsel challenged the admissibility of the exhibits, arguing that the documents did not facially indicate that the underlying court order was issued pursuant to one of the statutes necessary to elevate the current violation of a protection order to a felony. In order to evaluate Mr. Webb's objection, the trial court obtained supporting documents from both Pasco Municipal Court and Benton County District Court.
The Benton County District Court file contained an incident report and citation, prepared by the Kennewick Police Department. According to the incident report, Mr. Webb violated the temporary protection order during the period of July 21 to July 22, 2005, when he made multiple phone calls to Ms. Hettinger's cell phone. Mr. Webb's judgment and sentence, dated November 9, 2005, arose out of that violation. The temporary order for protection referenced in the police report was the protection order admitted as exhibit 1, and expressly states it is an order issued pursuant to chapter 26.50 RCW. Similarly, the Pasco Municipal Court provided an incident report and citation for violation of a court order on July 29, 2005, involving an incident where Mr. Webb again contacted Ms. Hettinger. The police report referenced the same temporary order for protection that was issued against Mr. Webb on July 18, 2005. The conditions of release, exhibit 5, dated November 14, 2005, arose out of this violation of the protection order.
In both the Kennewick and Pasco cases, a copy of the temporary order of protection was attached to the incident reports. After reviewing the supporting documents, the court determined that both citations were based on the orders for protection obtained by Ms. Hettinger, which were "clearly . . . issued pursuant to RCW 26.50." RP (Nov. 3, 2006) at 52. The court found that the orders for protection were issued pursuant to chapter 26.50 RCW and were, therefore, admissible.
On November 3, 2006, a jury found Mr. Webb guilty of felony violation of a protection order. The jury also returned a special verdict, finding that Mr. Webb had two previous convictions for violating the provisions of a protection order. At sentencing, the court determined that Mr. Webb's offender score was in excess of the maximum of 9, with a total of 11 prior convictions. Based on this score, Mr. Webb was sentenced to 60 months' confinement and 9 to 18 months' community custody. This appeal followed.
ANALYSIS
Mr. Webb was charged with felony violation of a protection order under RCW 10.99.050(2) and RCW 26.50.110(5). At trial, the State presented exhibits 4 and 5 as evidence that Mr. Webb had two prior convictions for violating the provisions of a protection order. Mr. Webb contends that the State failed to introduce any evidence of common identity establishing that he was the same defendant identified in the two prior convictions.
In general, the violation of a protection order is a gross misdemeanor. RCW 26.50.110(1); State v. Van Tuyl, 132 Wn. App. 750, 758, 133 P.3d 955 (2006). In order for the violation to be elevated to a felony, the State must prove that the offender had two prior convictions for violating the provisions of an order issued under chapters 7.90, 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW. RCW 26.50.110(5). The primary issue on appeal is whether there is sufficient evidence to support the special verdict.
Sufficiency of the Evidence. When reviewing the sufficiency of the evidence to support a conviction on appeal, "the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
"[W]hen the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Further, "[a] challenge to the sufficiency of the evidence admits the truth of the State's evidence." State v. Luther, 157 Wn.2d 63, 77-78, 134 P.3d 205, cert. denied, 127 S. Ct. 440 (2006). "In determining whether the necessary quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt but only that substantial evidence supports the State's case." State v. Summers, 107 Wn. App. 373, 388, 28 P.3d 780 (2001).
A reviewing court gives deference to the trier of fact on the issues of conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence. State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157 (1996). Credibility determinations are solely for the trier of fact and cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Mr. Webb contends the State failed to present sufficient evidence to prove beyond a reasonable doubt that he is the same person identified in exhibits 4 and 5. Mr. Webb argues that the State merely provided identity of names and failed to provide any independent evidence that the prior convictions actually pertained to him. This argument is without merit.
In a criminal trial, the prosecution bears the burden of establishing beyond a reasonable doubt the identity of the accused as the person who committed the offense. State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974). "Identity involves a question of fact for the jury and any relevant fact, either direct or circumstantial, which would convince or tend to convince a person of ordinary judgment, in carrying on his everyday affairs, of the identity of a person should be received and evaluated." Id.
Because identity evidence is for the trier of fact, the evidence should not be weighed again on appeal to determine if the State has proven beyond a reasonable doubt that the defendant was the person who committed the offense. State v. Johnson, 12 Wn. App. 40, 45, 527 P.2d 1324 (1974). Rather, "[t]he function of an appellate court is only to assess that there was substantial evidence from which the trier of fact could infer that the burden of proof had been met and that the defendant was the one who perpetrated the crime." Id.
In general, the best evidence to establish the existence of a prior conviction is a certified copy of the relevant judgment and sentence. State v. Rivers, 130 Wn. App. 689, Page 9 698, 128 P.3d 608 (2005). However, where a former judgment is an element of the substantive crime being charged, identity of names alone is not sufficient proof of the identity of a person to allow the court to admit the prior judgment of conviction. See State v. Hunter, 29 Wn. App. 218, 221, 627 P.2d 1339 (1981).
The State must provide independent evidence that the person named in the former judgment and sentence is the defendant in the present action. Id. After the State introduces this evidence, the burden shifts to the defendant to come forward with evidence casting doubt on the identity of the person named in the documents. Id. at 222.
Significantly, in Rivers, the court held that identity of names is sufficient proof in the absence of a rebuttal by the defendant, declaring under oath, that he is not the person named in the prior conviction. Rivers, 130 Wn. App. at 700; see also State v. Ammons, 105 Wn.2d 175, 189-90, 713 P.2d 719, 718 P.2d 796 (1986). In the context of sentencing, the court in State v. Chavez held that a defendant's right to due process is satisfied where the defendant is informed of the prior convictions being used and given an opportunity to deny that he or she is the person named in the conviction. State v. Chavez, 65 Wn. App. 602, 605, 829 P.2d 1118 (1992).
Here, the State had the burden of proving beyond a reasonable doubt that Mr. Webb had two prior convictions for violating the provisions of a protection order. At trial, the State introduced certified copies of a judgment and sentence and conditions of release entered after a guilty plea, exhibits 4 and 5. Both exhibits showed the convictions of a person named "Michael Layton Webb," date of birth April 30, 1958, for violation of a court order.
In addition, the record contains the testimony of Officer Merkl, to whom Mr. Webb admitted having previously violated the protection order. Officer Merkl testified at trial: "I asked [Mr. Webb] if he had contacted [Ms.] Hettinger, and he stated he hadn't talked to her since the last time he broke the order violation." RP (Nov. 3, 2006) at 36.
Furthermore, Mr. Webb failed to present any statement under oath or otherwise argue that he was not the same person named in the judgments. Mr. Webb did not assign error on appeal to the admission of the exhibits. Because Mr. Webb did not deny that he was the person named in the convictions when provided the opportunity to do so, under the holding in Rivers, the State is deemed to have sufficiently proved Mr. Webb's identity as the person named in those prior convictions. See Rivers, 130 Wn. App. at 700.
Based upon the record, the State has met its burden of proving that Mr. Webb had two prior convictions for violating the provisions of a protection order. The evidence is sufficient for any rational trier of fact to have found the essential elements of a felony violation of a protection order beyond a reasonable doubt.
ADDITIONAL GROUNDS FOR REVIEW
In his statement of additional grounds for review, Mr. Webb submits several arguments. We address each separately.
Ineffective Assistance of Counsel. Washington has adopted the Strickland two-part test for evaluating claims of ineffective assistance of counsel. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To prevail on a claim of ineffective assistance of counsel, a defendant must prove that (1) defense counsel's conduct was deficient because it fell below an objective standard of reasonableness, and (2) the deficient conduct was prejudicial. Thomas, 109 Wn.2d at 225. "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).
Reviewing courts engage in a strong presumption that counsel's representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). This presumption will be rebutted only by a clear showing of incompetence. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004). "[T]he defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). Further, if trial conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as the basis for a claim of ineffective assistance of counsel. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
The presumption that court-appointed counsel is competent can be overcome by showing, among other things, that counsel failed to conduct appropriate investigations to determine what matters of defense were available. State v. Jury, 19 Wn. App. 256, 263, 576 P.2d 1302 (1978). Importantly, however, an attorney need not advance every argument, regardless of merit, urged by the appellant. In re Pers. Restraint of Frampton, 45 Wn. App. 554, 562 n. 8, 726 P.2d 486 (1986) (citing Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983)).
Here, Mr. Webb claims that none of the points he asked his attorney to make at trial were presented. First, Mr. Webb argues that his defense counsel failed to raise the issue of the land transaction he claims to have entered into with Ms. Hettinger. He argues that bank records in connection with the land transaction, both his records and those of Ms. Hettinger, should have been admitted at trial. Mr. Webb claims that this evidence establishes Ms. Hettinger's motive for obtaining the orders of protection. Even though such evidence was of questionable relevance, defense counsel did question Ms. Hettinger on the details of the land transaction. In addition, Ms. Hettinger was questioned as to the timing between completing the land purchases and having Mr. Webb move out of her home. Further, Mr. Webb testified regarding the land transaction.
Second, Mr. Webb contends that counsel was ineffective for failing to raise the argument that he was "baited" into calling Ms. Hettinger in order to pick up a motorcycle. Statement of Add'l Grounds at #4. There is no evidence in the record that Mr. Webb was set up to violate the protection order. A reviewing court will not consider matters referred to in the brief but not supported by the trial record. McFarland, 127 Wn.2d at 335-36.
Third, Mr. Webb contends that defense counsel failed to question Ms. Hettinger's failure to produce a recording of the message that Mr. Webb purportedly had left on her cell phone on December 12, 2005. The record shows otherwise. During cross-examination of Ms. Hettinger, defense counsel specifically asked Ms. Hettinger why the police were never provided with a recording of the message.
Finally, Mr. Webb argues that defense counsel failed to inquire into the chain of ownership of the pay phone. Mr. Santo Pietro testified at trial that he was an employee/owner of Interwest Tel, the company which owned and maintained the pay phone at the McDonald's in Kennewick. Mr. Santo Pietro was able to produce a call record report which detailed the calls made from that telephone on December 14, 2005. Prior ownership of the pay phone was not a relevant issue at trial, and the issue of ownership of the phone was resolved in order for the prosecutor to request the telephone record from the appropriate company for discovery.
Mr. Webb's assertions do not establish deficient performance. Even if we assume Mr. Webb has met the first part of the Strickland test, his claim fails because he has not demonstrated how he was prejudiced by these alleged acts of ineffective representation. In conclusion, Mr. Webb has failed to overcome the presumption that defense counsel provided effective representation. Thus, his claim of ineffective assistance of counsel is without merit.
New Evidence. Mr. Webb next objects to the introduction of new evidence, which he claims was entered on the day of jury selection. As a result of the new damaging information, he alleges that he was unable to adequately prepare and, as a result, no effective cross-examination was possible.
A hearing was held on Monday, October 30, 2006, regarding late-developing evidence of telephone records relating to the pay phone that was used to call Ms. Hettinger.
At the hearing, the prosecutor explained that the carrier of the pay phone was identified as Verizon. She was informed by Verizon that the line in question had been sold to Ventel. Ventel then sold the line to Interwest. On October 26, 2006, the telephone was finally located at the Kennewick McDonald's and defense counsel was provided information that Mr. Santo Pietro maintained the pay phone. The prosecutor stated she contacted Mr. Santo Pietro to obtain telephone records for December 14. While it was clear that Mr. Santo Pietro would be testifying, it was unknown at that point whether any telephone records existed for the pay phone.
The prosecutor told the trial court that the State was prepared to go forward, but would not object to a continuance if defense counsel needed time to review the evidence. The following exchange shows that Mr. Webb was informed of the late-developing evidence and declined the opportunity to reschedule the trial.
MS. MEGAHA: No, we're prepared to go forward as is. Mr. Santo Pietro will come to testify on Friday. The only question right now is whether or not there is a phone record for December 14th.
THE COURT: OK. Well, I'm going to leave it up to the defense attorney. We don't know. You don't know. Nobody knows what Mr. [Santo] Pietro's going to disclose. There is time within speedy trial to reset the trial a week even, which would give you time to evaluate any evidence that is determined or if there is additional evidence. So is it your desire then to reset this in a week? Or do you want to go now? I won't exclude the evidence at this moment.
RP (Oct. 30, 2006) at 5 (emphasis added). The court informed Mr. Webb that the jury was scheduled to be selected that same day, and that introduction of the evidence was scheduled for that coming Friday. Defense counsel was allowed to recess to speak with Mr. Webb. Then the following statement was made on the record:
MR. JOHNSTON: Judge, I spoke with Mr. Webb. He would prefer to proceed forward. I told him I haven't seen this evidence and the Court hasn't ruled upon it. I suppose all I can do is if we go ahead then. If it comes in, we'll have to speak to the judge on Friday. I don't know whether or not a continuance will be required or not. Can't answer that question now, because I don't have — I don't have material in front of me.
THE COURT: OK. We will proceed then. The State will make every effort to get the information to the defense as soon as its [sic] available.
RP (Oct. 30, 2006) at 6 (emphasis added).
As expected, on November 3, 2006, Mr. Santo Pietro testified. The State moved to admit exhibit 3, and no objection was made. The record indicates that defense counsel had previously received a copy of that report.
Mr. Webb may not now assert that he was unable to prepare his case, due to late-developing evidence, when he advised defense counsel to proceed to trial. Further, Mr. Webb's contention that defense counsel was unprepared to cross-examine Mr. Santo Pietro is unsupported by the record. Offender Score. Mr. Webb assigns error to the trial court's calculation of his offender score. Specifically, Mr. Webb contends that because his criminal history included crimes from 1978 through 1989, some of the felony convictions wash out. He asserts that his offender score should have been a 6.
The judgment and sentence indicate the dates of the crimes were from 1980 through 1990.
At sentencing, the court determined that Mr. Webb's offender score was in excess of the maximum of 9 points, based on his criminal history of 11 prior felony convictions. The 11 felonies were listed in the judgment and sentence. Based on this score, Mr. Webb was sentenced to 60 months' confinement and 9 to 18 months' community custody. Neither the record nor the judgment and sentence indicates how Mr. Webb's offender score was calculated.
In response to Mr. Webb's pro se argument, the State noted that neither Mr. Webb nor defense counsel objected to the offender score or the resulting standard range sentence. The State also conceded that it did not provide certified copies to prove the prior convictions.
Significantly, the State cites State v. Bergstrom, 162 Wn.2d 87, 169 P.3d 816 (2007) for the holding that where the State alleges prior convictions at sentencing, but neither the appellant nor defense counsel objected to the convictions before the sentence was imposed, the appropriate remedy is to remand for an evidentiary hearing where the State may provide certified copies of the qualifying convictions. As a result, the State urges this court to remand to allow the State the opportunity to present new evidence in support of the convictions.
At sentencing, Mr. Webb was provided with multiple opportunities to object after the State proposed that his offender score was based on his 11 prior felonies. The trial court expressly asked Mr. Webb "is there anything you want to say before we go to sentencing?" RP (Nov. 16, 2006) at 3. Significantly, Mr. Webb objected to other issues but did not challenge his offender score. Under Bergstrom, the appropriate remedy is a remand for resentencing, and the State is allowed to introduce new evidence. Bergstrom, 162 Wn.2d at 93.
Bail. Finally, Mr. Webb contends that bail was set at $70,000 in the "1st crime." Statement of Add'l Grounds at #6. He argues that was "crazy yet not looked into." Statement of Add'l Grounds at #6. He also contends that none of the witnesses who testified prior to him were sworn in. When Mr. Webb made this objection, the court reporter checked the record and stated that Ms. Hettinger had been sworn in.
An appellate court will not consider an appellant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors. RAP 10.10(c). Mr. Webb fails to establish error.
We affirm the conviction and remand for resentencing.
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.
Brown, J., Thompson, J. Pro Tem., Concur