Opinion
No. 36134-5-II.
April 29, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 06-1-00365-3, Nelson E. Hunt, J., entered March 21, 2007.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Armstrong, JJ.
Phyllis Bondurant appeals her convictions for felony possession of a controlled substance — methamphetamine, unlawful use of drug paraphernalia, and felony bail jumping. She argues that the prosecutor committed misconduct; the information was insufficient; and the jury did not make all findings required to sentence her for bail jumping as a class C felony. We affirm.
FACTS
On June 8, 2006, Deputy Curt Spahn arrested Bondurant at her home in Mossyrock, Washington on suspicion of fourth degree assault — domestic violence. Bondurant was wearing a nightgown, so Spahn waited while she put on jeans. Then Spahn let her retrieve her purse to check for her identification paperwork. After he put her into the back of his police car, Bondurant asked Spahn to retrieve a pill box from inside the home. Spahn retrieved a pill box that contained what he first thought was a spider, but he quickly realized that the pill box actually contained two marijuana buds. Spahn searched Bondurant's purse, as a precaution for officer safety, and found a piece of rubber automotive tubing containing a "white powdery substance." 2 Report of Proceedings (RP) at 49. Based on his experience, Spahn believed the tubing was used to smoke methamphetamine.
The State charged Bondurant with possession of a controlled substance-methamphetamine (count I), possession of marijuana, less than 40 grams (count II), unlawful use of drug paraphernalia (count III), and fourth degree assault — domestic violence (count IV). Thereafter, Bondurant missed a court date, so the State filed an amended information adding count V, bail jumping.
At trial, Bondurant testified that she had never seen the automotive tubing that contained methamphetamine. She also said that Spahn retrieved the wrong pill container and the box with the marijuana did not belong to her. Bondurant admitted knowing about and missing her court date. The trial court later dismissed the assault charge. A jury convicted Bondurant of possession of a controlled substance — methamphetamine (count I), unlawful use of drug paraphernalia (count III), and bail jumping (count V). As a result of the jury verdicts, the sentencing court considered her bail jumping conviction a class C felony. It imposed sentences of nine months each for possession of a controlled substance — methamphetamine and for bail jumping, and a one day suspended sentence for unlawful possession of drug paraphernalia, with the sentences to be served concurrently.
Bondurant appeals.
ANALYSIS
I. Prosecutorial Misconduct
Bondurant first argues that her convictions must be reversed because the prosecutor committed misconduct by asking her if Spahn made up his testimony. In order to establish prosecutorial misconduct, Bondurant must show that the prosecutor's conduct was improper and prejudiced her right to a fair trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Prejudice is established where "`there is a substantial likelihood the instances of misconduct affected the jury's verdict.'" Dhaliwal, 150 Wn.2d at 578 (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995)).
Bondurant's credibility was a key issue because a guilty verdict on the drug charges turned upon whether the jury believed Bondurant or Spahn, the arresting officer. The prosecutor overstepped by asking Bondurant: "So Deputy Spahn is just making all this up then?" 2 RP at 133; See State v. Suarez-Bravo, 72 Wn. App. 359, 366, 864 P.2d 426 (1994) (ruling that "[c]ross examination intended to compel a defendant to call police witnesses liars constitutes prosecutorial misconduct").
Bondurant answered: "No." 2 RP at 133.
Prejudice, however, did not flow from this question. Defense objected and the trial court sustained the objection in a rebuke to the prosecutor: "[Y]ou don't ask that kind of question. You should know better than that." 2 RP at 133. The court also instructed the jury that it was the sole judge of credibility and could not consider as evidence the attorneys' statements or testimony for which objections were sustained.
Bondurant cites State v. Boehning, 127 Wn. App. 511, 525, 111 P.3d 899 (2005), arguing that we reversed the conviction in that case because the prosecutor asked the defendant whether the 11-year-old sexual assault victim made her testimony up. But we reversed Boehning's conviction due to the cumulative effect of the prosecutor's repeated misconduct and held that the prosecutor's conduct, during closing arguments alone, warranted reversal. Boehning, 127 Wn. App. at 525. Here, Bondurant alleges only one instance of impropriety and, given the trial court's strict admonition to the prosecutor and instructions to the jury, there is no substantial likelihood that the improper question affected the verdict. Dhaliwal, 150 Wn.2d at 578. Accordingly, we affirm because Bondurant cannot show prejudice. II. Adequacy of Bail Jumping Information
Bondurant also argues that the information charging her with bail jumping was deficient because it failed to allege all the essential elements of the crime. A charging document must include a crime's essential elements in order to notify the "accused of the nature and cause of the accusation." State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). Where, as here, the defendant challenges the information after the verdict, we construe the document liberally and reverse only if we can answer two questions in the affirmative: "(1) [D]o the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he was nonetheless actually prejudiced by the inartful language which caused a lack of notice?" Kjorsvik, 117 Wn.2d at 105-06. To analyze actual prejudice, we "may look beyond the face of the charging document to determine if the accused actually received notice of the charges he or she must have been prepared to defend against." Kjorsvik, 117 Wn.2d at 106.
RCW 9A.76.170(1) provides that a person, "having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state, . . . and who fails to appear . . . as required is guilty of bail jumping." (Emphasis added.) "The State must prove beyond a reasonable doubt that [the defendant] knew, or was aware that he was required to appear at the [scheduled] hearing." State v. Bryant, 89 Wn. App. 857, 870, 950 P.2d 1004 (1998).
Here, the amended information charging Bondurant with bail jumping states:
And I, the Prosecuting Attorney aforesaid, further do accuse the defendant of the crime of BAIL JUMPING which is a violation of RCW 9A.76.170(1) . . . in that the defendant on or about November 02, 2006, in Lewis County, Washington, then and there, having been charged with POSSESSION OF A CONTROLLED SUBSTANCE, a class C felony, ASSAULT IN THE FOURTH DEGREE-DOMESTIC VIOLENCE, a Gross Misdemeanor, and POSSESSION OF MARIJUANA — LESS THAN 40 GRAMS and UNLAWFUL USE OF DRUG PARAPHERNALIA, Misdemeanors, and having been released by court order and having been admitted to bail with a requirement of a subsequent appearance before the Lewis County Superior Court, did knowingly fail to appear as required contrary to the peace and dignity of the State of Washington.
Clerk's Papers (CP) at 18-19 (emphasis added).
Bondurant argues the phrase "did knowingly fail to appear as required" failed to convey the element of knowledge that she must appear at the scheduled hearing. At this stage, we must liberally interpret the information to determine whether it can be construed by a fair interpretation to state that Bondurant knew she was required to appear.
Here, the information, fairly construed, notified Bondurant that the State had charged her with violation of RCW 9A.76.170(1) because she knew that her subsequent appearance was required and she failed to appear as required. Thus, each essential element of bail jumping was alleged in the information. Kjorsvik, 117 Wn.2d at 105-06. And even had the information not done so, Bondurant fails to show actual prejudice because the to-convict instruction accurately stated the knowledge element and Bondurant admitted at trial that she knew of the court date, but failed to appear. See State v. Franks, 105 Wn. App. 950, 957-58, 22 P.3d 269 (2001) (holding the defendant was not actually prejudiced because she appeared in court and mounted a full defense against the allegedly-defective charge). Accordingly, we hold that the information was sufficient. III. Bail Jumping To-Convict Instruction
Instruction No. 14 reads:
To convict the defendant of the crime of Bail Jumping, 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 day of November, 2006, the defendant knowingly failed to appear before a court;
(2) That the defendant was charged with Possession of a Controlled Substance;
(3) That the defendant had been released by court order or admitted to bail with the requirement of a subsequent personal appearance before that court on November 2, 2006;
(4) That the defendant knew of the requirement to subsequently appear before the court on November 02, 2006, during the time the defendant was released or admitted to bail; and
(5) That the acts occurred in the State of Washington.
CP at 40.
Bondurant alleges that her conviction and sentence for bail jumping as a class C felony were erroneous for two reasons. She argues that the to-convict instruction fails to include every essential element because it did not require the jury to find the penalty classification of the charges for which she failed to appear. Next, she asserts that the jury, theoretically, could have found that she failed to appear only for the marijuana possession charge, a misdemeanor, and not the methamphetamine possession charge, a class B felony. RCW 69.50.401(2)(b). Both challenges are without merit.
The prosecutor erroneously charged possession of methamphetamine as a Class C felony.
Bail jumping is considered as a class C felony if the defendant failed to appear for an underlying offense that was either a class B or class C felony. RCW 9A.76.170(3)(c). The State charged Bondurant with bail jumping for several underlying offenses, but only the possession of a controlled substance — methamphetamine is a felony. RCW 69.50.401(2)(b).
The jury convicted Bondurant of this felony offense, but did not convict her of the non-felony offense of possession of marijuana. Thus, her argument that the jury might have convicted her of possession of marijuana instead of possession of methamphetamine has no basis in fact.
We held in State v. Williams, 133 Wn. App. 714, 716, 136 P.3d 792, that "the penalty classification is relevant only to the sentence to be imposed on conviction, a topic the jury is not even permitted to consider in its deliberations. It is not an element of the crime." Our Supreme Court recently affirmed our holding in State v. Williams, 162 Wn.2d 177, 188, 170 P.3d 30 (2007). It emphasized that the penalty classifications are not elements of bail jumping, but relate solely to the penalty stage. Thus, "the penalty class of the underlying charge . . . is not required in . . . the to-convict jury instruction." Williams, 162 Wn.2d at 181. Following Williams's mandatory authority, we hold that the to-convict instruction here was sufficient and the penalty class of charges is not an element required in to-convict instructions.
Bondurant submitted her opening brief approximately three months before the Supreme Court filed Williams.
IV. Apprendi and Blakely Challenges
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Bondurant also argues that the sentencing court violated Blakely and Apprendi by relying on a fact not found by the jury to enhance her sentence, namely, whether the underlying possession of a controlled substance charge was a class B or C felony.
Apprendi held that any fact, other than the fact of a prior conviction, that increases punishment beyond the statutory maximum, must be proved to a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Blakely interpreted "statutory maximum" to mean the high end of the relevant standard range, or the maximum sentence "a judge may impose solely on the basis of the facts reflected in the jury verdict." Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Bondurant's 9-month sentence was the low end of the 9-to 12-month standard range. This does not exceed the high end of the range or the maximum sentence that the judge could impose based on the facts proved to the jury. Thus, Bondurant fails to satisfy the threshold requirement for either Apprendi or Blakely to apply — that the actual sentence imposed is longer than the maximum sentence for the crime for which a defendant has been validly convicted. Accord Williams, 162 Wn.2d at 191.
Bondurant's sentence did not violate Apprendi and Blakely and, thus, this challenge fails. We affirm.
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.
We concur:
Bridgewater, J.
Armstrong, J