Opinion
No. 66669-0-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for Thurston County, No. 09-1-00915-9, Wm. Thomas McPhee, J, entered December 11, 2009.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Lau and Spearman, JJ.
Douglas Harold Cook appeals from the judgment entered on a jury's verdict finding him guilty of malicious mischief in the second degree — domestic violence. He contends that the prosecutor committed misconduct, that there was insufficient evidence introduced at trial to support the jury's verdict, and that his offender score was miscalculated. Finding no error, we affirm.
I
On May 25, 2009, Diane Kelly was visiting with her father, Robert, outside her father's home. Douglas Cook, Kelly's brother, then arrived in his pickup truck. After exchanging words with Kelly, Cook backed his truck into Kelly's vehicle, causing substantial damage to her car. Cook then drove away. A police officer arrived shortly after the incident and spoke with Kelly. Robert, however, was uncooperative with the police and would not answer any questions.
Cook was charged by information with malicious mischief in the second degree — domestic violence.
Kelly testified at trial that her relationship with Cook was "pretty much nonexistent" and that Cook was angry at her. Report of Proceedings (RP) at 50-51. She summarized the incident with Cook, testifying that Cook exited his truck and "was screaming at me with his fists clenched and — and his face all red. And anyway, he was screaming and everything. And then he gets back in his truck, pulls away, and then guns it into my car." RP at 54. Kelly testified that she frequently visited her father's home and she always parked her car in the same location while there.
Kelly additionally provided a more detailed explanation of the incident, testifying that Cook "pulled forward about 70 feet, put it in reverse, and put his foot on the gas and gunned it right into my car." RP at 54. After Cook's truck hit Kelly's car, Cook "got out, was pulling some of the taillight off of his car — or truck and throwing it on the ground and said, now maybe you'll leave me alone, something to that effect." RP at 54-55. Cook then returned to his truck and drove to his own home. Kelly testified that she did not see Cook use his brakes or attempt to stop as he was driving in reverse toward her car.
The police officer who had investigated the collision testified that, as a result of the impact from Cook's truck, Kelly's vehicle had moved sideways approximately two feet from where it had been parked initially. The officer testified that the sideways movement of Kelly's car indicated that Cook's truck had been traveling at a high rate of speed "to strike her vehicle to move it that far." RP at 98.
A detective with the Washington State Patrol, who is an expert in traffic collision reconstruction, testified that Cook's truck was traveling between 10 to 13 miles per hour when it hit Kelly's car. The expert explained that traveling between 10 to 13 miles per hour in reverse is a relatively high speed. The expert testified that Cook was not braking at the time of impact.
During closing argument, defense counsel argued:
Well, the only person who can say — who has said anything about where Mr. Cook came from is Ms. Kelly. There was another person who saw this, but for whatever reason, his — what he saw has not been presented to you. He either refused to cooperate or the State chose not to bring him. We don't — but Robert Cook saw it.
RP at 172. The prosecutor, in her closing argument, responded:
What more do you need? If you believe his story, you — and he didn't really have a story, did he? And I want to talk about that. Robert Cook wasn't here. That's right. The dad wasn't here. They have subpoena power, too. He asked why we didn't call him. We have
RP at 182-83. Defense counsel immediately objected on the grounds that the State was implying that Cook had an obligation to produce evidence. The trial court sustained the objection. Cook did not request a curative instruction, and none was given.
After the jury began deliberating, Cook moved for a mistrial based on the prosecutor's statements during closing argument. The trial court denied the motion, stating:
Under the circumstances of raising that argument, I am of the opinion that the argument offered by the prosecutor during her rebuttal was not argument that rises to the level of inappropriateness or prejudice such that a mistrial would be an appropriate remedy. I'm going to deny that motion.
I note that the defendant did not ask for a curative instruction at the time that he made his objection. Had such been requested, it would have been given. But in those circumstances, the court has a delicate balance to reach, that being drawing attention to a statement that is objectionable or simply ruling and moving on. Accordingly, my practice, and I believe the best practice under the circumstances, is to not sua sponte offer a curative instruction that empathizes the inappropriate argument but rather simply to rule sustaining the objection unless the aggrieved party requests a curative instruction, and that wasn't done here.
RP at 194-95.
The jury returned a verdict of guilt. At sentencing, the State offered a statement of Cook's criminal history, which revealed that Cook had six juvenile felony offenses and five adult felony offenses. At the sentencing hearing, Cook agreed that the prosecutor's statement of criminal history was an accurate statement of his history. With an offender score of 8, Cook was sentenced to 21 months of confinement.
Cook appeals.
II
Cook first contends that the prosecutor committed misconduct in closing argument by implying that Cook had an obligation to produce evidence and that the trial court erred by denying Cook's motion for a mistrial based on the prosecutor's statements. We disagree.
To the extent that the prosecutor's remarks here were improper, Cook obtained the appropriate remedy. Cook interposed an appropriate objection, and the trial court immediately sustained that objection. Cook did not request a curative instruction, and none was given. The remedy of sustaining the objection — the remedy requested by Cook — provided by the trial court was sufficient to cure the error. See State v. Hager, No. 83717-1, 2011 WL 825740, *5 (Wash. March 10, 2011); State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008).
Cook nevertheless contends that the trial court erred by denying his motion for a mistrial based on the prosecutor's remarks. We review for abuse of discretion a trial court's decision to deny a mistrial. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). "Trial courts `should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.'" State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994) (quoting State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986)). Mistrials should be limited to circumstances wherein "`nothing the trial court could have said or done would have remedied the harm done to the defendant.'" State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979) (quoting State v. Swenson, 62 Wn.2d 259, 280, 382 P.2d 614 (1963)).
In this case, a mistrial would not have been appropriate. The prosecutor's improper argument was cured by the trial court's remedial action. The trial court immediately sustained Cook's objection to the prosecutor's statements. Moreover, the trial court could have further remedied the harm done to the defendant by providing a curative instruction, had one been requested. A curative instruction could easily have reminded the jury of the proper burden of proof. State v. Gregory, 158 Wn.2d 759, 846, 147 P.3d 1201 (2006). However, Cook did not request a curative instruction. Failure to request a curative instruction "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Furthermore, the trial court instructed the jury both that the State has the burden of proving beyond a reasonable doubt each element of the crime charged and that Cook had no burden of proving that a reasonable doubt exists. Instruction 6 (Clerk's Papers (CP) at 25). Moreover, after the trial court sustained Cook's objection, the State continued its closing argument and confirmed that that "[t]he defense doesn't have to call any witnesses." RP at 183.
This is not a case in which nothing short of a new trial could ensure that Cook was tried fairly. The trial court herein properly denied Cook's motion for a mistrial.
III
Cook next contends that insufficient evidence was presented to support the jury's determination that he had committed malicious mischief in the second degree — domestic violence. We disagree.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact could have found that the essential elements of the charged crime were proved beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
In evaluating the sufficiency of the evidence, circumstantial evidence and direct evidence are equally probative. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to appellate review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
To convict Cook of malicious mischief in the second degree, the jury had to find that he knowingly and maliciously "[c]ause[d] physical damage to the property of another in an amount exceeding two hundred fifty dollars." Former RCW 9A.48.080(1)(a) (1994); Instruction 7 (CP at 26). Cook contends that sufficient evidence was not presented to support the jury's determination that he had acted knowingly and maliciously.
Contrary to Cook's contention, there was ample evidence that Cook acted both knowingly and maliciously. There was evidence that Kelly's vehicle was parked in a location such that Cook would have been aware of where the car was parked, allowing the inference that Cook would not have driven into Kelly's car accidently. Moreover, evidence at trial revealed that Cook had driven his truck forward a substantial distance and then reversed his truck toward Kelly's car at a speed between 10 and 13 miles per hour. Cook had not attempted to brake or stop as he drove into Kelly's car. Indeed, Cook's truck hit Kelly's car with such force that her car was moved sideways approximately two feet. These facts support the jury's determination that Cook acted knowingly and intentionally when he reversed his truck into Kelly's car.
Furthermore, Kelly testified that Cook was angry with her on the day of the incident and that he was screaming at her right before he got into his truck and drove it into Kelly's car. Most indicative of Cook's malice in reversing his truck into Kelly's car was Kelly's testimony that, after the collision, Cook exited his truck and declared, "now maybe you'll leave me alone." RP at 54-55. These facts support the jury's determination that Cook acted maliciously.
Viewing the evidence and all inferences therefrom in the light most favorable to the State, a rational trier of fact could have found that Cook had knowingly and maliciously damaged Kelly's vehicle. The jury was entitled to believe the State's evidence, including Kelly's testimony. There was sufficient evidence introduced to sustain Cook's conviction.
IV
Cook contends that his offender score was miscalculated, claiming that certain convictions had washed out. Because the record is inadequate for us to evaluate the merits of this claim, we decline to review this issue on the merits.
Pursuant to RCW 9.94A.525, prior felony offenses shall not be included in calculating a defendant's offender score where the defendant refrained from committing additional crimes for a period of time after release from confinement. RCW 9.94A.525 provides, in relevant part:
(b) Class B prior felony convictions . . . shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction.
(c) . . . class C prior felony convictions . . . shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
Cook's felony criminal history presented to the trial court at sentencing revealed that Cook had committed several class B felonies and one class C felony, for which he was sentenced in 1987, 1989, and 1993. In addition, he had committed several felonies in 2005.
While the State bears the burden to prove the existence of prior convictions by a preponderance of the evidence, that burden is obviated where the defendant affirmatively acknowledges his criminal history. State v. Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009). At his sentencing hearing, Cook affirmatively acknowledged that the prosecutor's statement of criminal history was correct. By affirmatively acknowledging his criminal history, Cook "thereby obviate[d] the need for the State to produce evidence." Mendoza, 165 Wn.2d at 920.
Unsurprisingly, then, the record before us contains no information regarding Cook's "date[s] of release from confinement . . . pursuant to . . . felony conviction[s]." See RCW 9.94A.525(b), (c). These dates are essential for us to determine whether any of Cook's convictions indeed did washout pursuant to the statute. Nor does the criminal history presented to the trial court at sentencing indicate whether Cook had committed any crimes (including misdemeanors) in the period between the 1993 conviction and the 2005 convictions. We cannot simply assume that Cook's date of release from confinement pursuant to a felony conviction occurred such that he spent five or ten years in the community without committing additional crimes. Nor can we assume that the State could not have presented evidence of additional convictions, occurring between the 1993 conviction and the 2005 convictions, had Cook not obviated the need for the State to produce such evidence.
We note that the record presented on appeal contains a pretrial court report that indicates that Cook had committed crimes in 1993, 1995, 1996, 1998, and 1999. However, it does not appear that evidence of these additional crimes was presented to the trial court at sentencing. During her presentation of the State's sentencing recommendation, the prosecutor stated that Cook's "criminal history, as we discussed, includes 11 felonies, 13 misdemeanors and gross misdemeanors spanning from 1987 to 2009." RP at 223. Again, however, it does not appear that the trial court was presented at sentencing with any evidence of these additional, nonfelony crimes.
Because facts outside the record are necessary for us to determine whether Cook's offender score was, in fact, miscalculated, we decline to reach this issue on the merits. Our decision does not preclude Cook from raising this issue, if meritorious, in a personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995) (stating that a personal restraint petition is the appropriate vehicle for bringing matters outside the record before the appellate court).
Affirmed.