Opinion
No. 21866-0-III
Filed: December 28, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No. 02-1-00010-3. Judgment or order under review. Date filed: 02/05/2003. Judge signing: Hon. Dennis D. Yule.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Scott Wayne Johnson, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Pl, Kennewick, WA 99336.
Nicholas B. Bunn was convicted of two counts of first degree robbery, one count of first degree burglary, and one count of first degree assault. The jury made a special firearm finding on each count. The sentencing court sentenced Mr. Bunn to 293 months, which included four firearm enhancements. Through appellate counsel, he alleges (1) prosecutorial misconduct, (2) evidentiary error, and (3) sentencing error. Pro se, Mr. Bunn alleges (4) insufficiency of the evidence, (5) speedy trial violation, (6) failure to secure a written search warrant, and (7) improper denial of his request to change venue. We affirm.
FACTS
T.B., J.W., and their boyfriends, Jeremy Anderson and Jason Fox, were together at T.B. and J.W.'s apartment. Mr. Fox left the apartment around midnight, before a knock at the door. When J.W. cracked open the door, at least three men forced their way inside the apartment. One was armed with a shotgun, one with a knife, and one with a baseball bat. The men were apparently angry over a car stereo they believed Mr. Fox had stolen from one of the intruders.
Instead of leaving the apartment once they learned Mr. Fox was not there, the men began threatening T.B., J.W., and Mr. Anderson and demanding money. They beat T.B., J.W., and Mr. Anderson, eventually beating Mr. Anderson unconscious. T.B. and J.W. were sexually assaulted.
The intruders took $50 from T.B. They took J.W.'s car keys, her 2000 Honda Civic and approximately $20. The car was thoroughly trashed and abandoned.
Mr. Bunn was later identified as one of the intruders. He denied any involvement, claiming he was at a friend's apartment. His girlfriend, Ruta Samuolyte, was also questioned; she did not corroborate Mr. Bunn's alibi. When confronted with this, Mr. Bunn requested an attorney. Mr. Bunn was subsequently released.
After Mr. Bunn's release, the investigating officers contacted Marc Hinkle, an acquaintance of Mr. Bunn's. Mr. Hinkle agreed to meet with Mr. Bunn and assist the officers in apprehending him. When Mr. Hinkle initially met with Mr. Bunn, Mr. Bunn told him that someone had stolen his stereo. He told Mr. Hinkle he and some friends went to an apartment to find the person and forced their way in. Mr. Bunn admitted to Mr. Hinkle he `went crazy,' when he saw a vase stolen from his car and began hitting objects in the apartment with a baseball bat as well as one of the occupants `so hard that he left a puddle of blood somewhere.' Report of Proceedings (RP) at 1269. Mr. Bunn bragged about stealing, vandalizing and abandoning the Honda. The officers stopped Mr. Hinkle's vehicle and Mr. Bunn was apprehended and arrested. During a subsequent search of Mr. Bunn's car, an access card belonging to J.W. was found, in addition to the temporary registration for her Honda.
Mr. Bunn was charged with first degree robbery and first degree rape. The State was permitted to amend the information to two counts of first degree robbery, one count of first degree burglary, and one count of first degree assault. The court denied defense counsel's request for a continuance, noting the amendment `appears to arise out of the same set of circumstances.' RP (August 28, 2002) at 14. The court also denied defense counsel's repeated requests for change of venue.
Following several continuances and two substitutions of counsel, Mr. Bunn's trial commenced. During opening statements, the prosecutor stated: `The defendant made a choice to sexually assault one of the women in the apartment.' RP at 703. Defense counsel objected since Mr. Bunn was not charged with rape. The court allowed the prosecutor to comment on the sexual assault because the assault related to the force or violence element of the robbery charge. The prosecutor also commented on accomplice liability. Defense counsel again objected, arguing Mr. Bunn was not charged as an accomplice. The court allowed the prosecutor to continue because accomplice liability does not require specific charging.
T.B. testified for the State. She identified the bat as consistent with the one she saw used that night. On cross-examination, defense counsel attempted to establish the bat was only used to `pat' or `prod' the victims. RP at 966. On redirect, the prosecutor asked why T.B. gave her property to the intruders. Over defense counsel's objection, T.B. answered because she feared for her life because of the weapons.
During direct examination of Detective Simon Mantel, the prosecutor did not ask about the search of Mr. Bunn's vehicle. On redirect, without objection, the prosecutor asked Detective Mantel to identify the access card and registration as exhibits.
The State called James Weedmark to testify. His testimony consisted of his having seen Mr. Bunn and four other individuals at a gathering on the night in question. Mr. Weedmark testified the five individuals left together with a bat and shotgun after being in a group discussing something. Mr. Weedmark testified, over defense counsel's objection, he overheard two conversations after the men returned, one about a Honda and a ditch and another about Mr. Fox and getting something back. The State argued at trial and on appeal, that this evidence supported its conspiracy theory. Mr. Hinkle testified for the State under an agreement. Over defense counsel's objection, he related what Mr. Bunn told him on the day Mr. Bunn was arrested.
The State called Cole Spencer, one of Mr. Bunn's alleged co-conspirators. He refused to answer questions, violating his plea agreement. The local media broadcast this information two days later. Three months later, after Mr. Bunn had been tried, the local newspaper printed a story, stating that the prosecutor said: `Spencer didn't follow through.' Clerk's Papers (CP) at 12.
Misty Houle, another State witness, testified one of Mr. Bunn's alleged co-conspirators, Adam Trout, told her he went to the apartment with Mr. Bunn, but just Mr. Bunn and two others went inside. Mr. Trout told her after awhile he decided to go inside and he discovered the `big mess.' RP at 1350. Defense counsel objected to Ms. Houle's testimony as hearsay, but it was admitted as a statement of a co-conspirator during the active life of the conspiracy.
Mr. Bunn testified in his defense. He denied involvement in the alleged crimes, and in his direct testimony volunteered he had requested an attorney when the police questioned his alibi. This testimony unfolded during cross-examination:
Q Well, [the detectives] told you they were investigating a robbery at the apartment of Jason Fox.
A Yes.
Q And you didn't tell them about anyone else with a motive to harm Jason Fox or people in Jason Fox's apartment, did you?
A I asked for an attorney.
Q You did, and you asked for an attorney only after [the detectives] came back into the interview room and confronted you with some information, didn't you?
A Yes.
Q They told you about what information they had gathered, didn't you — didn't they?
A Like?
. . . .
Q And when confronted with that you asked for an attorney?
A Yes.
RP at 1531-32.
At this point, defense counsel objected, explaining at a side-bar conference that she was concerned about a comment on Mr. Bunn's right to remain silent. The State responded that the matter was raised in Mr. Bunn's direct testimony and the timing was, `something the jury can consider.' RP at 1533. In sustaining the objection, the court reasoned the State had sufficiently covered the timing issue and was moving toward the Fifth Amendment privilege, `beyond the issue of right to counsel.' RP at 1534.
During closing argument, the prosecutor commented on the point at which Mr. Bunn stopped talking to police. Defense counsel's objection was overruled because the statement went to timing. The prosecutor then elaborated on the right to remain silent. During Mr. Bunn's closing argument, defense counsel argued, `[t]he State has tremendous resources, much more than the defendant.' RP at 1646. In rebuttal, the prosecutor commented that Mr. Bunn can have any witness he wants and an investigator to find the witness, `and if he can't pay for it the court will.' RP at 1662.
The jury found Mr. Bunn guilty as charged. It returned four special verdicts, finding Mr. Bunn was armed with a deadly weapon during the commission of each crime. The sentencing court imposed a standard range sentence, plus four firearm enhancements. Mr. Bunn appealed.
ANALYSIS A. Misconduct
The issue is whether prosecutorial misconduct denied Mr. Bunn a fair trial. We review a trial court ruling based on allegations of prosecutorial misconduct for abuse of discretion. State v. Finch, 137 Wn.2d 792, 840, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). But where the defendant fails to object to an allegedly improper remark, the argument `is considered waived unless the remark is `so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.'' Id. at 839 (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)).
Mr. Bunn contends the following actions resulted in prosecutorial misconduct: (1) amending the information only two weeks before trial; (2) commenting during opening argument about sexual assault and accomplice liability; (3) exceeding the scope of redirect examination; (4) eliciting hearsay testimony; (5) issuing a press release about Mr. Spencer's refusal to testify; (6) commenting on Mr. Bunn's right to remain silent during cross-examination of Mr. Bunn, during closing arguments, and during examination of Mr. Hinkle; and (7) commenting on Mr. Bunn's right to an investigator.
1. Amending Information. CrR 2.1(d) provides for amendment of an information `at any time before verdict or finding if substantial rights of the defendant are not prejudiced.' In circumstances where an amendment to the information is proper, the burden is upon the defendant to show that he will be prejudiced by the amendment. State v. Gosser, 33 Wn. App. 428, 434-35, 656 P.2d 514 (1982). Here, the amended charges were based on facts available and known to Mr. Bunn. Additionally, the parties had been engaged in plea negotiations and Mr. Bunn was aware of the prospect of amendment. Accordingly, Mr. Bunn has failed to show he was prejudiced by the amendment.
Mr. Bunn argues CrR 8.3(b) applies. This rule allows a court to `dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial.' CrR 8.3(b). First, Mr. Bunn did not request dismissal under CrR 8.3(b). Second, dismissal under CrR 8.3(b) is an extraordinary remedy to be used solely in truly egregious cases. As discussed above, the amended charges were based on known facts to both parties. And, Mr. Bunn was aware amendment was possible. Thus, a CrR 8.3(b) dismissal was not warranted.
2. Opening Statement. Mr. Bunn next contends the prosecutor improperly discussed sexual assault and accomplice liability in his opening statement when Mr. Bunn was not charged with these crimes. A prosecutor commits misconduct by appealing to the jury's passion and prejudice and inviting the jury to decide the case on a basis other than the evidence before them. State v. Echevarria, 71 Wn. App. 595, 598-99, 860 P.2d 420 (1993). The information alleged Mr. Bunn took property from J.W. and T.B. `by use or threatened use of immediate force, violence, or fear of injury.' CP at 381. The State alleged the force, violence, or fear of injury encompassed both the sexual assaults and the physical assault. Therefore, even though Mr. Bunn was not charged with the sexual assaults, the State was permitted to refer to it in his opening comments.
Regarding accomplice liability, the State does not have to charge Mr. Bunn as an accomplice. State v. Rodriguez, 78 Wn. App. 769, 773-774, 898 P.2d 871 (1995). An information that charges an accused as a principal adequately apprises him or her of potential accomplice liability. Id. No misconduct occurred in commenting on accomplice liability.
3. Redirect Examination. Mr. Bunn contends the prosecutor denied him a fair trial by asking T.B. during redirect examination why she gave property to the individuals. Further, Mr. Bunn contends the prosecutor wrongly asked Detective Mantel about items recovered while searching Mr. Bunn's vehicle. He contends these questions should have been asked during direct examination.
Generally, a party may examine a witness within the scope of the opposing party's previous examination. State v. Jones, 26 Wn. App. 1, 8, 612 P.2d 404 (1980). Thus, counsel may seek an additional explanation on redirect that is related to a subject area raised during cross-examination. Frazer v. Downey, 12 Wn. App. 374, 380, 529 P.2d 1105 (1974). The purpose of redirect examination is to clarify matters which may tend to be confused by cross-examination and to rehabilitate the witness. State v. Baker, 4 Wn. App. 121, 128, 480 P.2d 778 (1971). The admission or exclusion of evidence on redirect examination that is not strictly rebuttal of testimony elicited by cross-examination rests within the trial court's discretion. Id. The prosecutor's redirect of T.B. was appropriate in light of defense counsel's cross-examination. Defense counsel attempted to establish that the bat was solely used to `pat' or `prod' the victims. RP at 966. On redirect, the prosecutor asked why T.B. gave her property to the intruders. Over defense counsel's overruled objection, T.B. answered because she feared for her life because of the weapons. Moreover, T.B. had already testified during direct examination that the intruders demanded money and that she gave them $50.
Regarding Detective Mantel's identification of J.W.'s access card and registration found in Mr. Bunn's car, defense counsel did not object; therefore, the allegedly improper questioning must be `so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.' Finch, 137 Wn.2d at 839. In light of the massive evidence against Mr. Bunn, it cannot be said the prosecutor's questioning regarding the search of Mr. Bunn's car, even if presumed improper, was so flagrant that it could not be neutralized by an admonition to the jury.
4. Hearsay. Mr. Bunn next contends the prosecutor inappropriately elicited hearsay testimony from Mr. Weedmark and Ms. Houle. Mr. Weedmark testified five individuals, including Mr. Bunn, left together with a baseball bat and shotgun after discussing something as a group. Further, he related he overheard two conversations after they returned, one about a Honda and a ditch and another about Mr. Fox and getting something back. The State argued these conversations supported the conspiracy theory.
Ms. Houle testified one of Mr. Bunn's alleged co-conspirators, Adam Trout, told her he went to the apartment with Mr. Bunn, but just Mr. Bunn and two others went inside. Mr. Trout told her after awhile he decided to go inside and that is when he discovered the `big mess.' RP at 1350. The State argues the testimony from both of these witnesses is admissible under ER 801(d)(2)(v). Under ER 801(d)(2)(v), a statement is not hearsay if it is `a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.' `Before admitting statements under the rule, the trial court must make an independent determination that a conspiracy existed and that the defendant was a member of the conspiracy.' State v. Halley, 77 Wn. App. 149, 152, 890 P.2d 511 (1995). Both must be shown by substantial evidence independent of the statements. Id. at 152. Except implicitly, no determination was made here. But, given the abundance of evidence against Mr. Bunn, if asked the trial court would have found a conspiracy existed and the defendant was a member of the conspiracy. Therefore, the error in failing to make a conspiracy determination on the record was harmless under these circumstances. Under ER 801, the State need establish no more than an agreement made by two or more persons confederating to do an unlawful act. Halley, 77 Wn. App. at 154; See also RCW 9A.28.040(1) (defining conspiracy as agreement with one or more persons). The requirements for admitting evidence under ER 801(d)(2)(v) were met here. The evidence showed the intruders' quest to find Mr. Fox and Mr. Bunn's involvement. Therefore, the statements from Mr. Weedmark and Ms. Houle were not hearsay and were admissible. The prosecutor properly elicited their testimony.
5. Press Release. Mr. Bunn next contends the prosecutor improperly issued a press release about Mr. Spencer's refusal to testify. First, the prosecutor denies issuing a press release. Second, the complained about information was not printed in the local newspaper until three months after Mr. Bunn was convicted. Thus, Mr. Bunn can show no prejudice.
6. Right to Remain Silent. Mr. Bunn contends the prosecutor improperly commented on his right to remain silent in cross-examination and during closing argument. The Fifth Amendment to the United States Constitution guarantees `[n]o person . . . shall be compelled in any criminal case to be a witness against himself.' The Fifth Amendment is applicable to the states through the Fourteenth Amendment, and article I section 9 of the Washington Constitution. Griffin v. California, 380 U.S. 609, 619, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). Comments on post-arrest silence are generally treated as due process violations. State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996). Accordingly, the State cannot use post-arrest silence as evidence of guilt. Id. at 236.
`A comment on an accused's silence occurs when used to the State's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt.' State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996) (citing Tortolito v. State, 901 P.2d 387, 391 (Wyo. 1995)). And a constitutional error occurs if a police witness testifies that a witness refused to speak with him, if the State purposefully elicits testimony as to the accused's silence, or if the State injects the accused's silence into its closing argument. State v. Romero, 113 Wn. App. 779, 790, 54 P.3d 1255 (2002) (citing Easter, 130 Wn.2d at 241).
A constitutional error may be harmless if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result without the error. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). Constitutional errors are presumed prejudicial, and the State bears the burden of proving that the error was harmless. Id. (citing State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980)). We must decide if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. Guloy, 104 Wn.2d at 425-26 (citing Parker v. Randolph, 442 U.S. 62, 70-71, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979)).
An error of constitutional magnitude occurs only if the prosecutor uses a defendant's post-arrest silence unfairly. State v. Johnson, 42 Wn. App. 425, 431, 712 P.2d 301 (1985). In considering whether constitutional error occurred, we examine (1) the context in which the evidence was revealed in order to determine the extent to which it was called to the jury's attention and (2) the possibility that the jury may have drawn an unfavorable inference from that evidence. Id.
Here, when asked on cross-examination about why he did not tell police about other individuals who might have had a motive to injure Mr. Fox, Mr. Bunn responded, `I asked for an attorney.' RP at 1532. Mr. Bunn opened up the inquiry by mentioning the topic on direct testimony. The prosecutor asked Mr. Bunn if he asked for counsel after he was confronted with information gathered from the detectives to fix the timing. Mr. Bunn answered, `Yes.' RP at 1532. The court sustained defense counsel's objection to a follow-up question, ruling the timing issue was covered by the first inquiry. The prosecutor discontinued questioning on the topic. The context in which the questioning occurred, coupled with the sustained objection mitigated any constitutional error.
During closing argument, the prosecutor commented on the point in which Mr. Bunn stopped talking to police. This time defense counsel's objection was overruled because the statement went to timing. The prosecutor did not focus on Mr. Bunn's exercise of his right to remain silent, but rather on the timing of the invocation. The comments were not an impermissible comment on Mr. Bunn's right to remain silent. Even assuming the prosecutor crossed the line and committed constitutional error, the error would be harmless since any reasonable jury would have reached the same result in the absence of the error. Guloy, 104 Wn.2d at 425. The evidence against Mr. Bunn was overwhelming.
Mr. Bunn also contends his right to remain silent was violated by Mr. Hinkle's testimony, arguing Mr. Hinkle was a state agent. Mr. Bunn was not in custody at the time he made his admissions against interest to Mr. Hinkle, a point acknowledged by defense counsel at trial.
7. Right to an Investigator. Mr. Bunn next contends the prosecutor impermissibly commented on his right to an investigator during closing argument. In general, a prosecutor has wide latitude during closing arguments. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). During Mr. Bunn's closing argument, defense counsel stated: `The State has tremendous resources, much more than the defendant.' RP at 1646. In rebuttal, the prosecutor stated Mr. Bunn can have any witness he wants and an investigator to find the witness, `and if he can't pay for it the court will.' RP at 1662. The context of the prosecutor's rebuttal argument shows the challenged remark was in response to Mr. Bunn's closing argument, rather than a comment on Mr. Bunn's right to an investigator, and was not error.
8. Cumulative Error: Mr. Bunn contends that even if no single error is reversible, the cumulative error doctrine warrants reversal. The doctrine does not apply here because Mr. Bunn has `not satisfactorily demonstrated any errors to accumulate.' State v. Clark, 143 Wn.2d 731, 771, 24 P.3d 1006, cert. denied, 534 U.S. 1000 (2001). In addition, Mr. Bunn broadly argues the trial court's evidentiary rulings were error because they allowed testimony or comments that amounted to prosecutorial misconduct. In light of our ruling that prosecutor misconduct did not occur, we have necessarily disposed of Mr. Bunn's evidentiary claims. In sum, Mr. Bunn was not denied a fair trial based on prosecutorial misconduct. See State v. Colbert, 17 Wn. App. 658, 664, 564 P.2d 1182 (1977) (distinguishing a perfect trial from a fair trial).
B. Firearm Enhancements
At oral argument Mr. Bunn conceded consecutive sentencing was required for each of his four firearm enhancements under the relevant statutes and recent case law. We accept the concession. See RCW 9.94A.510(3)(e), now recodified as RCW 9.94A.533(3)(e), and State v. DeSantiago, 149 Wn.2d 402, 421, 68 P.3d 1065 (2003). In DeSantiago, the Court concluded that the plain language of former RCW 9.94A.510 required a sentencing judge to impose an enhancement for each firearm or other deadly weapon that a jury finds was carried during an offense. Id.
C. Additional Grounds
In Mr. Bunn's statement of additional grounds for review, he contends (1) insufficient evidence supports his burglary conviction, (2) his CrR 3.3 speedy trial rights were violated, (3) the telephonic search warrant should have been transcribed, and (4) the trial court erred in not granting his request for change of venue.
1. Evidence Insufficiency. Mr. Bunn argues he did not `enter or remain unlawfully in the building of Jeremy Anderson' as the amended information alleges. CP at 382. Evidence is sufficient if it permits a rational trier of fact to find each essential element of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). A defendant commits first degree burglary when he unlawfully enters or remains in a building with intent to commit a crime therein. RCW 9A.52.020.
Mr. Anderson testified he was staying at the apartment with his girlfriend, T.B. The evidence must be viewed in the light most favorable to the State. Salinas, 119 Wn.2d at 201. Moreover, when language in a charging document is challenged after the verdict, the language is construed liberally in favor of validity. State v. Borrero, 147 Wn.2d 353, 360, 58 P.3d 245 (2002). The State validly characterized the dwelling as `the building of Jeremy Anderson.' CP at 382. Mr. Bunn does not challenge any of the other elements of first degree burglary. The evidence sufficiently supports Mr. Bunn's burglary conviction.
2. Speedy Trial. Mr. Bunn argues his CrR 3.3 speedy trial rights were violated when his attorney requested a continuance on May 31, 2002. Where speedy trial rights arising from CrR 3.3 are involved, the issue is non-constitutional and a trial court's grant of a continuance will not be disturbed absent a manifest abuse of discretion. State v. Lopez, 74 Wn. App. 264, 268, 872 P.2d 1131 (1994). `A trial court abuses its discretion if its decision is based on untenable grounds or is made for untenable reasons.' State v. Andrews, 66 Wn. App. 804, 810, 832 P.2d 1373 (1992) (citing Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984)).
Here, the court allowed the continuance because there were `multiple co-defendants.' RP (May 31, 2002) at 4. The State agreed good cause existed to continue Mr. Bunn's trial. Thus, the court had tenable grounds to grant the continuance. There was no violation of Mr. Bunn's CrR 3.3 right to a speedy trial.
3. Telephonic Search Warrant. While alluding to the failure of his counsel to seek a CrR 3.6 suppression hearing, Mr. Bunn challenges the telephonic search warrant on the basis that it was not transcribed. However, the written warrant is in the record. The circumstances do not support a suppression issue or a claim of ineffective assistance of counsel.
Appellate counsel filed an additional statement of authorities, directing this court to State v. Ettenhofer, 119 Wn. App. 300, 79 P.3d 478 (2003). There, the court held that a search was unconstitutional where the judge reportedly approved the search telephonically but no written warrant was ever issued. Id. at 307. First, it is not entirely clear from RAP 10.10(f) that appellate counsel can provide additional statements of authority for pro se arguments without this court's request. Second, Ettenhofer is readily distinguishable because here a written search warrant was issued.
4. Change of Venue. Mr. Bunn asserts the trial court abused its discretion in denying his change of venue motion. `The trial court's decision to grant or deny a motion for a change of venue is within the trial court's discretion, and appellate courts are reluctant to reverse the trial court's decision absent a showing of abuse of discretion.' State v. Jackson, 150 Wn.2d 251, 269, 76 P.3d 217 (2003) (citing Clark, 143 Wn.2d at 756).
We applied the Crudup factors in determining whether an abuse of discretion occurred. Jackson, 150 Wn.2d at 269 (citing State v. Crudup, 11 Wn. App. 583, 587, 524 P.2d 479 (1974)). The factors are:
(1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.
Crudup, 11 Wn. App. at 587. The record shows the trial court carefully reviewed the Crudup factors. Moreover, the court permitted extensive questioning of potential jurors about knowledge of prior media coverage concerning Mr. Bunn's crimes before seating a jury. Further, the court excused an alternate juror when it was revealed her husband had strong views about the trial. In sum, the court did not abuse its discretion by denying Mr. Bunn's motion for change of venue.
Affirmed.
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.
SWEENEY, A.C.J. and SCHULTHEIS, J., Concur.