Opinion
No. 30381-7-II, consol. No. 30388-4-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 03-1-00230-5. Judgment or order under review. Date filed: 04/17/2003. Judge signing: Hon. Robert Lee Harris.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Thomas C. Duffy, Attorney at Law, 18005 SE 44th Way, Vancouver, WA 98683-7402.
Carl D. Wolff and Brandon B. Webb appeal convictions for malicious harassment. Each claims that the trial court made instructional errors and improperly admitted propensity evidence. Wolff also claims that the evidence is insufficient. We affirm.
On January 25, 2003, Wolff, Webb, and Jeremy Whitten drove from Idaho to Vancouver, Washington. At about 2:15 p.m., they went to Matt Schmoyer's apartment where they met about a dozen others, including Joseph Clark.
About 5 or 6 p.m., Jesse Goodmonson, a 17-year-old who is partly of African American descent, came out of his nearby apartment with two girls. As he and the girls were saying good-bye, they noticed a group of men wearing 'black leather jackets, black boots, red laces, shaved heads, tattoos, black shirts and dark jeans' staring at them. One of the girls said, 'What's up dogs?' to which Clark replied, 'Why don't you go suck some more nigger cock.' The girls then left.
RP at 590.
RP at 393-94.
Goodmonson returned to his apartment but soon emerged again with some friends. His group began staring at the Schmoyer group. Clark said 'Why don't somebody go put that nigger in check,' to which Webb replied, 'Don't worry about it, we don't want any drama.' Clark continued to stare at the Goodmonson group, which continued to stare back, and Clark said again, 'somebody needs to go put — put that nigger in check.'
RP at 396.
RP at 397.
At that point, Wolff, Webb, Schmoyer, and several others from their group walked over to the Goodmonson group. Then, according to Goodmonson's later testimony, Me and Mr. Schmoyer engaged in a conversation. He asked me why we were staring at him, and I asked him why they were staring at us.
And he . . . asked me if we had a problem or not, and I said, 'No,' I was just wondering what was going on, and he . . . asked me if I wanted to take it to the back yard and take care of it, and I said, 'I'm not about to fight grown men.' And I said, 'I don't want to fight, could you please leave my property.'
RP at 592-93.
According to Whitten's later testimony, it was Webb who asked if Goodmonson 'wanted to take it to the back yard.'
RP at 401.
After more verbal unpleasantries, Wolff punched Goodmonson three or four times. Goodmonson fell to the ground where, according to his later testimony, he was kicked in the head, chest, and back by several others. He got up and started toward Wolff, who by then was walking away. Whitten then 'sucker punch[ed]' him and knocked him into some bushes.
RP at 697.
Goodmonson's mother came running out of their apartment. She was yelling for Schmoyer's group to leave Goodmonson alone and for someone to call the police. A person in the Schmoyer group called her a 'nigger-loving bitch,' and that group then left. Whitten, Wolff, and Webb departed together in Whitten's car.
RP at 496.
On January 31, 2003, the State charged Wolff, Webb, Whitten, Clark, and Schmoyer with malicious harassment. Whitten and Schmoyer formed plea agreements, and Whitten testified at trial for the State.
See RCW 9A.36.080(1)(a), (1)(c); RCW 9A.08.020(3).
Before trial, Wolff, Webb, and Clark moved to exclude any reference to their membership in a 'skinhead organization' called the 'Hammerskin Nation.' The court permitted reference to skinheads but barred reference to the 'Hammerskin Nation.'
RP at 413.
RP at 336-37.
On April 7, 2003, the court convened a jury trial. The State offered to have Whitten testify that Wolff, Webb, and Clark all had tattoos or jacket patches indicating membership in the Hammerskin Nation. The court admitted the testimony over defendants' objection, but only for the limited purpose of proving identity. The court also admitted, without objection, photos of the tattoos and patches.
At the end of the evidence, the court instructed on malicious harassment, fourth degree assault as a lesser included offense, and accomplice liability. Neither Wolff nor Webb proposed an instruction on malicious harassment, and neither objected to any of the instructions that the court proposed to give.
See Br. of Appellant (Wolff) at 12; Br. of Appellant (Webb) at 8; RP at 738-40.
On April 9, 2003, the jury found Wolff and Webb guilty of malicious harassment. The jury found Clark not guilty. Wolff received a standard range sentence of 180 days. Webb received an exceptional sentence, to which he agreed, of 366 days. This appeal followed.
I.
For the first time on appeal, Wolff and Webb assert errors in the trial court's jury instructions. They claim error in the to-convict instruction, Number 14, and the accomplice instruction, Number 13.
A.
Although Wolff and Webb did not object at trial, they now urge that the trial court erred in giving the to-convict instruction, Number 14, which had six words lined out on its face. The instruction stated:
To convict the defendant of the crime of malicious harassment, each of the following elements must be proved beyond a reasonable doubt:
(1) That on or about the 25 the [sic] of January, 2003 the defendant caused physical injury to another person;
(2) That the defendant acted maliciously and intentionally;
(3) That the defendant acted because of his perception of the his or her perceptions of a person's race, color, ancestry, or national origin, of Jesse Goodmonson; and
(4) That the acts occurred in the State of Washington.
Clerk's Papers (CP) (Wolff) at 130; CP (Webb) at 135.
Wolff and Webb complain that '[u]nder the third element as listed, the jury could have convicted if it found that the defendant acted with racial animus toward any person, such as Jesse Goodmonson's mother [or] the two Caucasian girls who initially drew the attention of Joseph Clark.' A jury instruction does not warrant reversal if it informs the jury of the applicable law, is not misleading, and permits the party to argue his theory of the case. Though Instruction 14's third paragraph was mangled, it still required, and we think every juror would have understood it to require, that the jury not convict either defendant unless convinced beyond a reasonable doubt that he had acted with racial animus toward Goodmonson. The instruction was understandable when read in the context of the case, and it permitted each defendant to argue his theory of the case.
Br. of Appellant (Wolff) at 20; Br. of Appellant (Webb) at 15.
State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999).
Wolff and Webb also complain that Instruction 12 parroted both RCW 9A.36.080(1)(a) and (1)(c), while Instruction 14 parroted only (1)(a). But we perceive no prejudice where the State charged under both (1)(a) and (1)(c), Instruction 14 was the 'to-convict' instruction, and Instruction 14 was narrower than Instruction 12. Instruction 14 was badly composed, but it was not so bad as to require a new trial.
Instruction 12 stated:
A defendant commits the crime of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perceptions of a person's race, color, ancestry, or national origin,
Causes physical injury to that person or another person; or
Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property; or
It is not a defense that the defendant's perception of the person's race, color, ancestry, or national origin was mistaken. CP (Wolff) at 128; CP (Webb) at 133.
B.
Although Wolff and Webb did not object at trial, they now argue that the trial court erred in its accomplice instruction, Number 13. That instruction stated:
A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a 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 a 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 (Wolff) at 129; CP (Webb) at 134.
The Washington Supreme Court outlawed this instruction more than two years prior to the trial in this case. The court reasoned that an accomplice can properly be convicted of the crime with which he or she was charged only if he or she knowingly encouraged the principal's commission of that crime; thus, an instruction is erroneous if it permits an accomplice to be convicted because he or she knowingly encouraged the principal's commission of a different crime.
See State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000); State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000).
Cronin, 142 Wn.2d at 579.
The State concedes error but argues that the error was harmless. Because the error is constitutional, it was harmless only if, beyond a reasonable doubt, 'the jury verdict of conviction would be the same absent the error.' In this case, the jury could not have believed that Wolff or Webb was a principal to malicious harassment. To convict a principal of malicious harassment, the jury had to find that the principal manifestated racial animus. The record is devoid of evidence that Wolff or Webb personally manifested racial animus. If either Wolff or Webb committed malicious harassment, it was as an accomplice of others whose animus and assaults he was knowingly encouraging.
State v. Berube, 150 Wn.2d 498, 509, 79 P.3d 1144 (2003); State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002); State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).
To convict Wolff or Webb as an accomplice, the jury must have believed that his principal committed malicious harassment or fourth degree assault. The principal could not have committed both crimes Instruction 19 defined fourth degree assault as 'an assault not amounting to malicious harassment' and the record does not show any other crimes.
CP (Wolff) at 135; CP (Webb) at 140.
The central question is which crime the jury believed the principal committed. If the jury believed that the principal or principals committed malicious harassment, it necessarily convicted Wolff and Webb of malicious harassment because they knowingly encouraged that same crime. But if the jury believed that the principal committed only fourth degree assault, it might have convicted Wolff and Webb of malicious harassment because they knowingly encouraged a different crime (i.e., fourth degree assault). Only in the former event can we say that the trial court's instructional error was necessarily harmless.
The present record shows beyond a reasonable doubt that the jury believed Wolff's and Webb's principal to have committed malicious harassment. The jury could not have convicted anyone of malicious harassment without finding manifestations of racial animus. It could not have found such animus from the conduct of Wolff or Webb himself, for the record does not show that either personally manifested such animus. Necessarily then, the jury found that their principal manifested such animus, it convicted them of knowingly aiding the very crime with which they were charged, and the verdict would have been the same with or without the error in Instruction 13.
II.
Wolff argues that the evidence is insufficient to support his conviction. Although he concedes that he 'took the stand and admitted to having committed the assault,' he contends that he acted without racial animus. Evidence is sufficient if, taken in the light most favorable to the State, it permits a rational jury to find each element of the crime beyond a reasonable doubt.
Br. of Appellant (Wolff) at 45.
State v. Pirtle, 127 Wn.2d 628, 643, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996); State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980).
The evidence in this record is sufficient to support an inference of racial animus. Wolff was a member of a group. When the group noticed Goodmonson, one or more of its members uttered racial slurs. Immediately thereafter, Wolff assaulted Goodmonson. Taking the reasonable inferences in the light most favorable to the State, a rational jury could find that Wolff hit Goodmonson in order to aid and assist the others' display of racial animus.
III.
Wolff argues that his trial attorney rendered ineffective assistance by not objecting when the trial court 'admitted photographs of [his] tattoos and his co-defendant's tattoos.' He claims that the photographs depicted him as 'a racist, skinhead member of a white supremacist group,' in violation of ER 404(b). Webb argues likewise.
Br. of Appellant (Wolff) at 38.
Br. of Appellant (Wolff) at 32 (capitalization removed).
We will not review a claim not made below unless it is of constitutional magnitude. 'Evidentiary errors under ER 404[(b)] are not of constitutional magnitude.' The error that Wolff and Webb are now alleging is not constitutional, and we should not review it.
RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988).
State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984).
If we were to review the error, we would deny relief. To show ineffective assistance, Wolff and Webb must show deficient performance and resulting prejudice. Before the photographs were brought up, the trial court had already ruled that similar testimony could be used to show identity but not propensity. That ruling was well within the trial court's discretion, and it undoubtedly would have ruled the same way on an objection to the photos. If the defendants' trial counsel had made the objection asserted on appeal for the first time, the trial's outcome would not have been different.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., Concur.