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State v. Harp

The Court of Appeals of Washington, Division Two
Mar 25, 2008
143 Wn. App. 1044 (Wash. Ct. App. 2008)

Opinion

No. 35598-1-II.

March 25, 2008.

Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-1-01172-1, Stephen M. Warning, J., entered November 15, 2006.


Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Penoyar, J.


Jeff Leroy Harp appeals his convictions for one count of felony violation of a no-contact order and one count of unlawful possession of a controlled substance, methamphetamine. We affirm.

Harp violated a 2004 no-contact restraining order by contacting Alisha Hanley, the mother of his daughter. Longview police arrested him and found drug paraphernalia and methamphetamine in his duffel bag.

We note that the record before us spells the name Alisha two ways, Alisha and Alicia. We use Alisha in this opinion.

The State charged Harp with one count of felony violation of a no-contact order and one count of unlawful possession of a controlled substance, methamphetamine. The State charged Harp's violation of the no-contact order as a felony because Harp had two prior convictions for violating protection orders.

Trial commenced on November 13, 2006, where, over Harp's objection, the trial court admitted exhibits 4, 4A, and 5. Exhibit 4 is a redacted copy of Harp's judgment and sentence in cause number 04-1-00921-6, indicating that on December 14, 2004, Harp pleaded guilty to two counts of violation of a protection order — domestic violence under former RCW 26.50.110(4) (2002) and former RCW 10.99.020(1) (2002), for violations committed on May 7, 2003, and November 29, 2003. Both previous convictions were for gross misdemeanors. Exhibit 4A is an unredacted copy of the previous judgment and sentence. Exhibit 5 is the post-judgment domestic violence no-contact order that the previous trial court attached to Harp's judgment and sentence, listing Hanley as the protected party.

The trial court indicated that it was admitting the actual judgment and sentence so that a reviewing court could know that the State offered a certified copy into evidence, but it did not go to the jury. It also admitted the redacted version so that the jury could see the relevant portions without any risk of prejudice.

When the State began its case in chief, both a Longview police officer and a technician from the Washington State Patrol crime laboratory testified regarding the chain of custody for the methamphetamine. The officer testified that he placed the paraphernalia in a sealed envelope with his handwriting on it and that the envelope did not appear to have been tampered with. He then testified that he placed the suspected methamphetamine in a separate envelope with tape and his initials. The officer opened the envelope at counsel's request and found a large plastic bag inside, which he identified as the bag in which he placed the white crystalline substance. The Washington State Patrol crime laboratory technician stated that he removed the plastic bag from the inside of the evidence envelope as evidenced by the state patrol evidence tape, case number, date of sealing, and initials on the bottom of the envelope. He opened the package and performed tests on the white substance, which tested positive for methamphetamine.

The arresting officer found a pipe, cotton balls, spoon, rubber strap, and plastic baggies in Harp's duffel bag.

The jury found Harp guilty on both counts. The jury also answered the special verdict form, finding that Harp had "twice been previously convicted for violating the provisions of a no-contact order?" CP at 31.

I. Relevance and Sufficiency

Harp contends that the trial court erred by admitting exhibits 4 and 4a over his objection that both lacked relevance. He also argues that the State failed to present sufficient evidence that Harp's predicate no-contact orders were issued under chapters 7.90, 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW. Both arguments fail and are answered by the same evidence.

We review a trial court's decision to admit evidence for an abuse of discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999). Evidence is relevant if it has any tendency to make any fact at issue more or less probable than it would be without the evidence. ER 401.

We review a challenge to the sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). We draw all reasonable inferences from the evidence in the State's favor. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).

The State alleged that Harp's violation of the no-contact order, which is not at issue here, was a felony because Harp had two prior convictions for violating no-contact orders listed in RCW 26.50.110(5). That statute provides:

A violation of a court order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign protection order as defined in RCW 26.52.020, is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or a valid foreign protection order as defined in RCW 26.52.020.

RCW 26.50.110(5).

Harp does not dispute that he pleaded guilty to two violations of no-contact orders. Rather, Harp contends that the two violations listed on his previous judgment and sentence are inapplicable to his current violation because they do not establish that he twice violated no-contact orders issued under chapters 7.90, 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW. Accordingly, he argues, his previous judgment and sentence was irrelevant to his crimes and the trial court erred by admitting them.

The special verdict form asked the jury to answer only whether Harp had twice previously been convicted of violating a no-contact order and they answered "yes." CP at 31.

But Harp is incorrect. Exhibit 4, which the jury relied on to determine that Harp twice violated no-contact orders, lists two counts, both occurring in 2003, of violation of a protection order domestic violence that Harp pleaded guilty to in 2004. The charging statutes for each are former RCW 26.50.110(4) and former RCW 10.99.020(1). Former RCW 26.50.110(4) provided:

Any assault that is a violation of an order issued under this chapter, chapter 10.99, 26.09, 26.10, 26.26, or 74.34 RCW . . . and that does not amount to assault in the first or second degree under RCW 9A.36.011 or 9A.36.021 is a class C felony, and any conduct in violation of such an order that is reckless and creates a substantial risk of death or serious physical injury to another person is a class C felony.

Harp relies on the incorrect version of RCW 10.99.020(1). The correct version of former RCW 10.99.020(1) provides:

Harp relies on the 2004 version, which provides the definition of "[a]gency" in domestic violence situations. Br. of Appellant at 13.

"Family or household members" means spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.

At Harp's request, the record contains no discussion or reference to the substance of Harp's prior violations. His previous judgment and sentence states that his two previous violations were under former RCW 26.50.110(4), which would indicate that the previous trial court convicted Harp for two assaults against family or household members that violated an order issued under chapters 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW, and that the assaults did not amount to assault in the first or second degree. It is also clear that each count occurred on a different date in 2003. Accordingly, the previous judgment and sentence and the related no-contact order were relevant and the evidence was sufficient to prove the two prior convictions.

Harp's previous judgment and sentence indicates that the previous court sentenced him for violating former RCW 26.50.110(4); thus, RCW 26.50.110(5) was satisfied. As such, relevant and sufficient evidence supports that Harp twice violated predicate no-contact orders.

Harp's main argument is that the prior judgment lists the wrong subsections of chapters 26.50 and 10.99 RCW. Even if we were to address this argument, the judgment and sentence lists the correct RCW chapters upon which a felony would be proper under RCW 26.50.110(5). That statute does not require conviction under a specific subsection, just a conviction under the appropriate chapter. Thus, Harp's argument fails even under this theory.

II. Methamphetamine Possession

Harp next alleges that the State failed to present substantial evidence to support his conviction for methamphetamine possession. Specifically, he argues that the State failed to establish the chain of custody of the methamphetamine from the time it left the officer's possession until trial. We disagree.

A trial court has wide latitude in its decision to admit evidence, which we review for abuse of discretion. State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).

"Before a physical object connected with the commission of a crime may properly be admitted into evidence, it must be satisfactorily identified and shown to be in substantially the same condition as when the crime was committed." Campbell, 103 Wn.2d at 21. "It is not necessary to negate every possibility of tampering with the exhibits by using identifying marks or tracing custody by means of the testimony of each custodian." State v. McGinley, 18 Wn. App. 862, 866-67, 573 P.2d 30 (1977). A sufficient foundation for admitting the evidence may be established without proof of an unbroken chain of custody. State v. Picard, 90 Wn. App. 890, 897, 954 P.2d 336, review denied, 136 Wn.2d 1021 (1998). The proponent need not identify the evidence with absolute certainty and eliminate every possibility of alteration or substitution. Campbell, 103 Wn.2d at 21.

"Failure to positively identify physical evidence goes only to its weight and not to its admissibility." McGinley, 18 Wn. App. at 867. An exhibit's identity and condition are always subject to rebuttal. Campbell, 103 Wn.2d at 21. The jury, as finder of fact, is the sole and exclusive judge of the evidence, the weight to be given to it, and the witnesses' credibility. State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999).

Harp contends that the following response the officer made during recross-examination is fatal to the State's chain of custody evidence:

Q: Officer Webb, going back to Exhibit #8[, the baggie of powder]. Did you end up saying that you cannot say that that is the same bag that you removed from the black zippered container?

A: There is a blue tape on it now. It — it — based on the picture, it looks like the one I remember but I can't sit here and tell you for sure, "That is the one" based on the — it's got tape on it.

RP at 60. Harp then alleges that because small baggies of suspected drugs are ubiquitous in our criminal justice system and laboratories deal with tens of thousands annually, lack of identification is fatal to the State's chain of custody.

But Harp's argument fails because inability to positively identify physical evidence goes to weight and not to admissibility. McGinley, 18 Wn. App. at 867. The jury is the sole and exclusive judge of the weight given to evidence. Bencivenga, 137 Wn.2d at 709. Harp was free to argue this theory to the jury and, in fact, did so.

The State counters that the chain of custody for the methamphetamine was proper. The officer testified that the gray duffel bag, marked as exhibit 6, was the same bag Harp was carrying when the officer arrested him. The officer also testified that exhibit 8 was the evidence envelope that he used to log the white crystalline powder and that his initials appeared on the back. He testified that, other than the blue tape, added by the crime laboratory, the envelope had not been tampered with. When he opened the evidence envelope, he identified the large plastic bag in which he had placed the powder as the same bag that saw at the time of Harp's arrest. The large plastic bag contained a smaller plastic bag, which the officer believed to be the same bag that he found in the small black nylon container inside the grey duffel, but he could not be sure because he could not see his initials on it, possibly due to the blue crime lab tape covering it. Finally, he testified that the baggie visible in his crime scene photograph resembled the baggie in question. The technician testified that when he received the envelope at the crime laboratory, it was not damaged and did not appear to have been altered in any way. We hold that the officer properly identified the baggie of methamphetamine in support of the State's chain of custody and, as such, the trial court did not abuse its discretion by admitting exhibit 8.

III. Statement of Additional Authorities (SAG) Issues

RAP 10.10.

Harp filed a 49-page SAG asserting multiple errors. These include: (1) his prior restraining order lacked statutory authority; (2) improper use of his previous judgment and sentence to establish Harp's previous convictions; (3) errors on the special verdict form; (4) prosecutorial misconduct; (5) judicial misconduct; (6) errors in his charging document; (7) impermissible expert testimony; (8) ineffective assistance of counsel; and (9) cumulative error.

Harp first contends that the restraining order he violated listed multiple sections of the RCW, including chapters 9A.46, 10.99, and 26.50 RCW. Harp argues that this is incongruous with jury instruction 8, which listed only section 10.99. Harp seems to be arguing that a no-contact order that can be violated under more than one section of the RCW is invalid. Harp's no-contact order listed three different RCW chapters, but his jury instruction included the handwritten element, "That the no contact order was issued pursuant to RCW 10.99." CP at 19. But Harp misinterprets the multiple chapters listed on his no contact order. The section to which he refers provides that violation of the order will constitute a crime under chapters 9A.46, 10.99, and 26.50 RCW. It does not address what authority the trial court issued it under.

Nevertheless, the validity of the underlying no-contact order is not an element of the crime of violating such an order. State v. Miller, 156 Wn.2d 23, 32, 123 P.3d 827 (2005). As such, Harp's only argument could be that sufficient evidence did not support the jury finding that his previous no-contact order was issued under chapter 10.99 RCW. The test for determining the 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 guilt beyond a reasonable doubt. Green, 94 Wn.2d at 221-22. In determining whether evidence supports a jury verdict, we view the evidence in the light most favorable to the State. State v. McNeal, 145 Wn.2d 352, 359, 37 P.3d 280 (2002).

The trial court considered this issue before trial and determined that this omission was not fatal because Harp's previous judgment and sentence clearly indicates, on its face, that his previous convictions were for violating chapter 10.99 RCW. Both the previous judgment and sentence and the domestic violence no-contact order share the same cause number, 04-1-00921-6, and the judgment and sentence refers specifically to the attached no-contact order. We hold that sufficient evidence existed for a rational trier of fact to find that Harp's previous domestic violence no-contact order was issued under chapter 10.99 RCW.

Harp also assigns error to the line on the previous no-contact order where the trial court indicated, "YOU ARE ALSO ORDERED to not go within 100 [yards] of the following location(s)," but then failed to fill in the blank describing the prohibited locations. CP at 71. Again, the validity of the underlying no-contact order is not an element of the crime of violating such order. Miller, 156 Wn.2d at 32. Even if we considered Harp's argument, it lacks merit. The trial court addressed this concern by examining the immediately preceding statement:

YOU ARE HEREBY ORDERED to have no contact with . . . Alicia Hanley 12/21/76 . . . This order prohibits any contact of any kind, including but not limited to: direct contact; contact through any other person; telephone contact; written contact; and any communication, contact or conduct directed toward the person(s) named above.

CP at 71. The trial court found the location paragraph to be without legal effect and did not allow the State to base any of its case on that particular language. Accordingly, this argument lacks merit.

Harp next argues that the trial court erred by allowing the State to use his previous judgment and sentence to establish that he committed the predicate offenses required to elevate his current charge to a felony. He first argues that his previous judgment and sentence is ambiguous because it refers to both former RCW 26.50.110(4) and former RCW 10.99.020. We hold that Harp's argument lacks merit, as no ambiguity exists in his previous judgment and sentence.

Harp contends that the trial court failed to redact exhibit 4 completely. Specifically, he argues that allowing the jury to see his legal financial obligations prejudiced him. Harp provides no evidence or argument as to how this disclosure to the jury prejudiced him. Although Harp is not required to cite to the record or authority in his SAG, he must still "inform the court of the nature and occurrence of [the] alleged errors," and we are not required to search the record to find support for the defendant's claims. RAP 10.10(c). Even so, review of the record does not support a finding that exposing Harp's legal financial obligations prejudiced him in any way.

Next, Harp argues that the trial court provided a faulty special instruction because it failed to instruct the jury that both predicate offenses must be of the "same [species]." SAG at 29. Accordingly, he argues that the State did not have to prove all elements of his offense. Harp's special verdict form asked the jury to determine whether he has, "twice been previously convicted for violating the provisions of a no-contact order?" CP at 31. The special interrogatory was not faulty.

Harp argues that the State committed prosecutorial misconduct by failing to disclose a portion of his no-contact order. This ground relates to matters outside the record that we will not review on direct appeal. State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).

Harp next claims that judicial misconduct prejudiced his trial. Specifically, he contends that the trial court erred by admitting his previous no contact order and by allowing the deputy prosecutor to testify about her previous interactions with him. We review a trial court's decision to admit evidence for an abuse of discretion. Vreen, 143 Wn.2d at 932. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Wade, 138 Wn.2d at 464.

Here, the trial court allowed the State to introduce Harp's previous no-contact order to establish an element of his crime — that he violated a no-contact order. It is unclear why a trial court would not admit a no-contact order that a defendant is on trial for violating. This argument lacks merit.

Pertaining to the deputy prosecutor's testimony, the State initially informed the trial court that it would call her as an expert witness to discuss the procedures the State follows to issue no-contact orders. When Harp objected to her testimony, the State informed the trial court that the deputy prosecutor would also testify that she personally recalled Harp's previous case, she signed his previous charging information, and she discussed the previous case with Harp. When called to testify, the deputy prosecutor informed the jury that she prosecuted Harp in his previous case. ER 602 allows witnesses to testify to matters of which they have personal knowledge; this testimony was proper. She then discussed how Cowlitz County assigns cause numbers for cases and how it often attaches no-contact orders to the relating judgment and sentence, both containing the same cause number.

We review the trial court's admission of evidence under ER 702 for abuse of discretion. State v. Greene, 139 Wn.2d 64, 70, 984 P.2d 1024 (1999), cert. denied, 529 U.S. 1090 (2000). And under ER 702, we ask two questions: (1) does the witness qualify as an expert; and (2) would the testimony be helpful to the trier of fact. State v. Farr-Lenzini, 93 Wn. App. 453, 460, 970 P.2d 313 (1999). Expert opinion is helpful to the trier of fact when it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury. Farr-Lenzini, 93 Wn. App. at 461.

Here, the State established that the deputy prosecutor was an expert by identifying that she had six years of experience, she worked cases involving violations of no-contact orders and domestic violence, and she was familiar with Cowlitz County's documents and procedures. Her testimony was clearly helpful to the jury because she explained the function and use of cause numbers. We hold that the testimony was appropriate.

Next, Harp assigns error to his charging document because the State omitted that the violation was "verbal." SAG at 39. A charging document must allege each essential element of the crime. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991); State v. Leach, 113 Wn.2d 679, 689, 782 P.2d 552 (1989). This affords the accused with notice of the nature of the allegation so that he can properly prepare a defense. Kjorsvik, 117 Wn.2d at 101-02. If the charging document fails to allege each element, the court must dismiss without prejudice. State v. Vangerpen, 125 Wn.2d 782, 790 n. 16, 888 P.2d 1177 (1995).

Here, the elements of violating a no-contact order include: (1) there is a no-contact order issued under chapters 10.99, 26.09, 26.10, 26.26, 26.50, or 74.34 RCW; and (2) the defendant knowingly violated the order in one of several enumerated ways. "Verbal" is not an essential element of violating a no-contact order and thus, this argument fails.

Harp asserts that the trial court violated his rights by allowing the deputy prosecutor to testify about her first-hand knowledge of his previous case. But ER 602 allows witnesses to testify to matters of which they have personal knowledge. Further, Harp's counsel cross-examined the deputy prosecutor and elicited that although she was familiar with his previous case, she was not present at all times, and she did not sign his judgment and sentence. Any challenge to her first-hand testimony must then relate to weight or credibility, which we do not review on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). As such, we do not consider this argument.

Harp next contends that ineffective assistance of counsel prejudiced his trial. He argues that counsel failed to object to discovery violations, including "the other half of the charging document." SAG at 44. This ground relates to matters outside the record that we will not review on direct appeal. McFarland, 127 Wn.2d at 338 n. 5.

Finally, Harp asserts cumulative error. The cumulative error doctrine applies when several trial errors occurred but none alone warrants reversal, but the combined errors effectively denied the defendant a fair trial. State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004). Because we do not find that the trial court erred, this argument fails.

We hold that the trial court did not abuse its discretion by admitting Harp's previous judgment and sentence because it was relevant. Sufficient evidence supported that Harp's two previous convictions were for violating no-contact orders issued under statutes specified in RCW 26.50.110(5). We hold that the trial court did not abuse its discretion by admitting the methamphetamine. Finally, we find that Harp's SAG lacks merit.

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.

VAN DEREN, A.C.J. and PENOYAR, J., concur.


Summaries of

State v. Harp

The Court of Appeals of Washington, Division Two
Mar 25, 2008
143 Wn. App. 1044 (Wash. Ct. App. 2008)
Case details for

State v. Harp

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. JEFF LEROY HARP, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Mar 25, 2008

Citations

143 Wn. App. 1044 (Wash. Ct. App. 2008)
143 Wash. App. 1044