Opinion
No. 34064-0-II.
August 21, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-1-00879-6, Gary Tabor, J., entered November 23, 2005.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Armstrong and Hunt, JJ.
Woo Yun was convicted of malicious mischief, second degree theft, trafficking in stolen property, and possession of marijuana arising out of an incident in May 2005, where he vandalized his ex-wife Jenny Yun's apartment. He appeals, arguing (1) speedy trial right violations, (2) trial court error in allowing Jenny to testify regarding her daughter's allegedly stolen property, (3) insufficient evidence to support his convictions, (4) improper jury instructions, (5) ineffective assistance of counsel, and (6) double jeopardy right violations. None of these arguments is persuasive, and we affirm his convictions.
We use Jenny Yun's first name to avoid confusion. We mean no disrespect.
FACTS
Jenny married Yun in 1997. During their marriage, he adopted her two children from a previous relationship, and the couple had one biological child together. They separated in 2000 and divorced in April 2005. Despite the divorce, the couple remained close, and Yun helped Jenny move into a new apartment in March 2005. During the move, Jenny removed her wedding ring, and she later noticed it was missing. She spoke with Yun about the ring, and he suggested that she had probably thrown it out with the garbage.
Jenny also goes by "Becky," but we address her as "Jenny" in this opinion for the sake of consistency. 1 RP (Nov. 2-3, 2005) at 33; 1 RP (Nov. 2-3, 2005) at 194.
On May 7, 2005, Thurston County Police Sergeant David Odegaard was dispatched to Jenny's apartment to investigate a burglary call. When he arrived, he found "considerable" damage to the apartment, including profanities etched into furniture; lipstick on the mirror; and water, bleach, and clothing strewn all over the unit. 1 Report of Proceedings (RP) (Nov. 2-3, 2005) at 33-34. The refrigerator was knocked on the floor, three window screens were cut up, and Jenny's piano and truck were filled with water.
About eight days later, Jenny contacted the police again because she had received pawn slips from Yun for two of the rings she had reported stolen — specifically, her wedding ring and her daughter's birthstone ring. Jenny also reported new damage to her apartment — the front door had more profanities carved in it, and more items were missing. Jenny testified that, after the second incident, her daughter's jewelry box was gone along with 15 to 20 rings inside. Deputy Michael Hazlett then went to Yun's residence to arrest him based on the pawn slips he received from Jenny. While there, he noticed a DVD player that Jenny had reported stolen and obtained a search warrant for a portion of the house. During the search, Deputy Hazlett found and seized "some green vegetable matter . . . that appeared to be marijuana." 1 RP (Nov. 2-3, 2005) at 65.
Testing established that the vegetable matter was indeed marijuana.
Yun was arraigned on June 1, 2005, and charged with first degree theft (domestic violence) (count I), first degree malicious mischief (domestic violence) (count II), and second degree theft (domestic violence) (count III). When the State later asserted that it would add two witness tampering charges, the trial court stated that it would grant a continuance for discovery purposes if Yun agreed to a speedy trial waiver. After discussing the matter with counsel, Yun agreed to waive his right to a speedy trial. The continuance was granted.
Ultimately, the State did not charge Yun with witness tampering.
The State then filed a first amended information, adding one charge of trafficking in stolen property (count IV) and one charge of residential burglary (domestic violence) (count V). Yun was rearraigned on September 1, 2005.
The State asked for and was granted a one week continuance on September 26, 2005; trial was set for October 3. At that hearing, the court also denied Yun's request for new counsel.
There is some confusion in the record about the reason for the initial continuance. On September 26, the court stated that it was granting the continuance based on courtroom availability. However, in response to the court's questioning at a later hearing, Yun's counsel indicated that the first continuance was granted because the prosecutor had information that Yun was "engaging in behavior that was not in compliance with his pretrial conditions of release." RP (Sept. 30, 2005) at 5. The State indicated that they would need to question another witness, and Yun's counsel then asked for a continuance based on new information.
On September 30, the court denied Yun's renewed request for different counsel because "to do so would continue this trial far beyond what is reasonable." RP (Sept. 30, 2005) at 8. The State also opposed Yun's request, stating that Yun was illegally contacting Jenny, and therefore, the State wanted a speedy trial. However, the parties later agreed to another continuance which set trial for October 17.
Yun again asked for new counsel on October 17, but he decided to remain with his current counsel when the court pointed out that appointing a new attorney would push the trial date beyond October 26, which was the date the court apparently believed the speedy trial limit would run. The court then set the trial to begin October 24.
On October 25, 2005, the State filed a second amended information to include a misdemeanor marijuana possession charge (count VI). At that time, the State asked for trial to be set on October 31, but Yun did not agree to the continuance. The court informed Yun that his case was a low priority because he was not in custody; the court then granted the continuance due to unavailability of judges and set the trial for October 31.
On October 31, the State filed a third amended information, which downgraded the malicious mischief charge (count II) from first degree to second degree and modified the residential burglary (count V) to another count of trafficking in stolen property.
Trial finally commenced on November 2. At trial, over Yun's objection, Jenny testified regarding stolen property (rings) that did not specifically belong to her, but to her minor daughter. A jury convicted Yun on all counts except first degree theft, for which it could not reach a unanimous decision. Yun now appeals.
ANALYSIS
I. Right to a Speedy Trial
Yun argues that the trial court violated CrR 3.3(h) by failing to try him before October 26. Moreover, he claims that his charges must be dismissed with prejudice because the continuance was not required for the administration of justice and was without good cause. The State responds that Yun miscalculated the speedy trial deadline in this case, and therefore his trial did not violate CrR 3.3.
The right to a speedy trial attaches, under both the federal and state constitutions, with the formal filing of an information. State v. Chavez, 111 Wn.2d 548, 558, 761 P.2d 607 (1988). CrR 3.3 requires a trial within 60 days of the commencement date of the action, or within 90 days if the defendant is not in custody. CrR 3.3(b). The commencement date is the date of arraignment, which in this case was June 1, 2005. However, CrR 3.3(e) excludes certain periods from the computation of the speedy trial deadline, including continuances granted by the court pursuant to CrR 3.3(f). The court may grant continuances when a delay is required in the administration of justice and the defendant will not be prejudiced, so long as the parties agree in writing or on motion from a party or the court. CrR 3.3(f). Where a period of time is excluded under CrR 3.3(e), the allowable time for trial "shall not expire earlier than 30 days after the end of that excluded period." CrR 3.3(b)(5).
Here, Yun was arraigned on June 1, 2005, and was not in custody. The 90-day limit expired on August 30. However, Yun signed a continuance agreement on August 24, setting trial for September 26. He then agreed to another continuance from September 26 to October 3, and then another from October 5 to October 17. He did not sign the agreement to continue the trial to October 31.
The times between August 24 through September 26, September 26 through October 3, and October 5 through October 17, are excluded from Yun's speedy trial calculation under CrR 3.3(e)(3). Therefore, under CrR 3.3(b)(5), the allowable time for trial did not expire until 30 days after October 17 — in this case, November 16. Because trial began on November 2, it was held within the allowable time and Yun's speedy trial rights were not violated.
As both Yun and the State note, the trial court did write on the continuance agreement that the last allowable date for trial was October 26. CP at 17. Proper calculation shows that this was an error: the last allowable date was November 16. However, Yun has not raised this error as an issue on appeal; he simply argues that the trial judge made a finding that the trial had to be held by October 26 and that the reasons advanced for a continuance after this date were not sufficient under the speedy trial rule. Furthermore, because we have no adequate factual record or briefing that would allow us to adequately address the issues Yun attempts to raise, we decline to do so.
Had Yun argued that the trial court's mistake violated his consent to the continuance, we may have been required to examine the factual basis for this argument (for example, Yun's possible reliance on the error) and the legal effect of the error (whether a continuance agreed to under these circumstances results in an excluded period under CrR3.3(e), and thus an additional 30 days allowable time for trial).
We may affirm the trial court on any proper grounds. State v. Donahue, 105 Wn. App. 67, 79, 18 P.3d 608 (2001). Yun's argument has no merit; the trial took place within the allowable time period under CrR 3.3. We affirm.
II. Jenny Yun's Testimony
Next, Yun argues that the trial court erred by allowing Jenny to testify that her daughter's rings were taken without her permission. According to Yun, no evidence established that Jenny had personal knowledge about whether her daughter had given permission, so her testimony was prohibited by ER 602, and it was not relevant under ER 401.
This argument is not persuasive. While this testimony was arguably inadmissible hearsay, its admission was harmless. The daughter's jewelry was taken in the second break-in. It would be highly unusual for any father to request and receive permission to take his daughter's jewelry. Where the parents are separated and estranged, and where the father is believed to have burglarized and vandalized the daughter's home, no juror would have believed that this father had permission to take her jewelry. An error is harmless where, as here, we are "convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).
III. Sufficient Evidence
Next, Yun argues that, with or without Jenny's testimony, there was insufficient evidence to prove Yun's theft of his daughter's rings. Specifically, he argues that no value was placed on the particular ring recovered from the pawn shop to demonstrate that its value exceeded $250.
The test for sufficiency of the evidence 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. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). All reasonable inferences from the evidence must be drawn in the State's favor and interpreted most strongly against the defendant. Hosier, 157 Wn.2d at 8. We will reverse a conviction for insufficient evidence only where no rational trier of fact could find that all elements of the crime were proved beyond a reasonable doubt. See State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Here, Jenny testified that she spent "a couple thousand" in purchasing her daughter's rings. 2 RP (Nov. 2-3, 2005) at 227. The owner of the pawnshop testified that the ring was made out of 10 karat gold, set with a half-carat green marquis stone. Viewing this testimony in the light most favorable to the State, a rational trier of fact could have reasonably concluded that Yun took the rings without permission, and could also believe that this one ring was worth more than $250. Because any rational trier of fact could find all elements of second degree theft, we affirm Yun's conviction.
IV. Jury Instructions
Yun also argues that the trial court impermissibly commented on his guilt when it submitted the following instructions to the jury:
To convict the defendant of the crime of Theft in the Second degree, as charged in Count III, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or between May 6, 2005 and May 12, 2005, the defendant wrongly obtained or exerted unauthorized control over property of another [to wit: assorted rings] in an amount exceeding $250 . . .
Instr. 19 (revised), CP at 84.
To convict the defendant of the crime of Trafficking in Stolen Property in the First degree, as charged in Count IV, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 12th day of May, 2005, the defendant knowingly trafficked in stolen property [to wit: a "wedding" ring] . . .
Instr. 21, CP at 97.
To convict the defendant of the crime of Trafficking in Stolen Property 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 12th of May, 2005, the defendant knowingly trafficked in stolen property [to wit: a ring with a green stone] . . .
Instr. 23, CP at 98.
According to Yun, the trial court committed manifest error by instructing the jury in this manner, because the trial court identified the property in each instruction. He contends that the language in the instructions effectively stated that the identified property was stolen, constituting judicial comment on the evidence. The State responds that any error was not prejudicial. Yun was still able to assert his defense — that he had not taken his daughter's rings — and that the ring that was pawned was one he had bought for his daughter but had never given her.
Yun failed to object to these instructions at trial, but he may raise this issue for the first time on appeal because it involves a manifest constitutional error — judicial comments on the evidence are expressly prohibited by the Washington constitution. See State v. Levy, 156 Wn.2d 709, 719-20, 132 P.3d 1076 (2006). A judge is prohibited from "conveying to the jury his or her personal attitudes toward the merits of the case or [from] instructing a jury that `matters of fact have been established as a matter of law.'" Levy, 156 Wn.2d at 721 (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)).
Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their case theories, and when read as a whole properly inform the jury of the applicable law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002) (citing State v. Riley, 137 Wn.2d 904, 908 n. 1, 909, 976 P.2d 624 (1999)). We review the adequacy of jury instructions de novo as a question of law. Clausing, 147 Wn.2d at 626-27 (citing State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995)). It is prejudicial error to submit an issue to the jury that is not warranted by the evidence. Clausing, 147 Wn.2d at 627; see State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).
Under circumstances very similar to this case, our Supreme Court recently held that referring to jewelry as personal property did not qualify as judicial comment. Levy, 156 Wn.2d at 722. It noted that "the pattern jury instructions for the offense of robbery expressly permit the court to instruct the jury that a particular item qualifies as property if it would be appropriate within the context of the case." Levy, 156 Wn.2d at 722 (citing Washington Practice: Washington Pattern Jury Instructions: Criminal 2.21 (5th ed. 2002) at 53). In Levy, as here, there was no dispute over whether jewelry was personal property — the only remaining question was to whether jewelry was taken from others without permission. Levy, 156 Wn.2d at 722.
Here, it was appropriate within the context of this case to identify the property at issue in each of the above instructions. Several items were stolen from Jenny's house. It was appropriate to specify that the property at issue in Count III was the jewelry and not any other missing item, such as the DVD player found at Yun's residence. Similarly, it was appropriate to specify the property at issue in each count of trafficking of stolen property: it allowed the jury to properly focus on the means of committing the specific crime.
The Levy court stated that the fundamental question is "whether the mere mention of a fact in an instruction conveys the idea that the fact has been accepted by the court as true." Levy, 156 Wn.2d at 726. Here, facts were included in the instructions simply to clarify what the jury was deciding; including the facts did not communicate that the court believed the objects were stolen or were worth a certain amount. While the "to-wit" statements in the jury instructions were not the best practice, they do not merit reversal in this case. See State v. Jones, 106 Wn. App. 40, 45, 21 P.3d 1172 (2001) ("counsel would be well advised to avoid the use of `to wit' language in . . . instructions").
V. Ineffective Assistance of Counsel
Yun also argues that he was prejudiced by his counsel's failure to object to the jury instructions quoted above. To demonstrate ineffective assistance of counsel, a defendant must show: (1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) the deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have differed. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). Competency of counsel is determined based on the entire record. McFarland, 127 Wn.2d at 335 (citing State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972)).
As stated above, Yun suffered no prejudice because of his counsel's failure to object to the instructions. His argument regarding the instructions raises a manifest constitutional issue; the failure to object did not prevent the court from reviewing his claim. Because Yun has not established any prejudice resulting from his representation, his claim that representation was ineffective fails.
VI. Double Jeopardy
Finally, Yun argues that the trial court violated his right to be free from double jeopardy by convicting him for two counts of trafficking in stolen property when he committed both crimes at the same time and place and with the same criminal intent.
The State responds that the use of two separate pieces of property as collateral for two separate loans rendered Yun's actions sufficiently separate to warrant two counts of trafficking, even though both transactions took place at the same time.
Both the United States and Washington Constitutions provide that no person shall be put in jeopardy twice for the same offense. U.S. Const. amend. V; Wash. Const. art. 1, § 9. These provisions afford a constitutional guaranty against multiple punishments for the same offense. Outside this constitutional framework, "the legislative branch has the power to define criminal conduct and assign punishment for such conduct." State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). In the face of a double jeopardy argument, we must determine whether the legislature intended to allow multiple punishments for criminal conduct that violates multiple statutes. State v. Louis, 155 Wn.2d 563, 569, 120 P.3d 936 (2005).
First, we look to the statute's language in controversy to determine whether it expressly authorize multiple punishments for conduct that violates more than one statute. State v. Louis, 155 Wn.2d at 569. Both parties here concede that the statutes contain no express language regarding punishment for multiple convictions.
Where the statutes' language is silent on this point, we apply the "same evidence" test. Louis, 155 Wn.2d at 569 (citing Calle, 125 Wn.2d at 777). Under the "same evidence" rule, a defendant's right to be free from double jeopardy is violated "if he or she is convicted of offenses that are identical both in fact and in law." Calle, 125 Wn.2d at 777. For example, a defendant's right to be free from double jeopardy was not violated when charged with two different crimes for the same conduct, because the charged crimes required different elements. Calle, 125 Wn.2d at 777.
Here, the offenses are identical in law (both charges for trafficking require the same legal elements), but they are not identical in fact. Yun was convicted of one count of trafficking for pawning one item and convicted on the other count for an entirely different item. The two rings had separate owners and each resulted in a separate obligation from Yun to the pawn shop. Because the crimes are not identical in fact, Yun's convictions did not violate his right to be free from double jeopardy, and we affirm.
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.
ARMSTRONG, P.J., HUNT, J., concur.