Opinion
No. 36849-8-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00510-7, Richard L. Brosey, J., entered October 8, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Houghton and Bridgewater, JJ.
Bryant Dennis Nolan appeals his conviction for felony harassment, arguing that (1) the trial court denied him due process by excluding relevant, exculpatory evidence; (2) the trial court denied him his right to a fair trial by refusing to give lesser included instructions on misdemeanor harassment; (3) the State made an unlawful comment on his silence; and (4) the evidence is insufficient to support his conviction. In his statement of additional grounds (SAG), Nolan argues (1) unlawful arrest by extreme use of force, (2) improper admission of evidence, (3) ineffective assistance of counsel, and (4) cumulative error.
Nolan casts all his claims as constitutional violations. Because he does not cite to authority to support the constitutional claims, we treat them as claims of abuse of discretion or error, as applicable. State v. Lynn, 67 Wn. App. 339, 342-43, 835 P.2d 251 (1992) (holding that casting arguments in constitutional terms does not make them constitutional claims).
RAP 10.10.
2 RAP 10.10.
We affirm.
FACTS
On July 30, 2007, at approximately 2:30 am, Chehalis Police Officers Jeffrey Elder and Michael Renshaw and Lewis County Deputy Sheriff Michael Bailey responded to an assault investigation in Lewis County. The officers talked to the alleged victim and two witnesses. The victim claimed that Bryant Nolan ran her head into a pole and a witness claimed that Nolan challenged him to a fight. The other witness directed the officers to a residence where they could find Nolan and the owner of the residence let all three officers inside.
The officers entered the living room and saw Nolan lying on a couch underneath a blanket with his back to the officers. When the officers pulled back Nolan's blanket, he identified himself, claimed that he was sleeping, and asked what was going on. The officers could not determine whether Nolan had a weapon under the blanket or if there was a gun in the couch.
Elder told Nolan he was under arrest, asked to see his hands, and asked him to get on his stomach so Elder could handcuff him. When Nolan failed to comply, Elder drew and activated his Taser. He repeated that Nolan was under arrest and asked Nolan to stand up and put his hands behind his back. Renshaw asked twice to see Nolan's hands. The second time, Renshaw said, "Let me see your hands or you're going to get Tased." Report of Proceedings (RP) at 56.
When Nolan again failed to comply, Elder deployed the Taser into Nolan's bare chest. Nolan rolled off the couch and onto his stomach, bringing his hands to his chest so that the officers could not see them. His movement caused the Taser to stop working, so Elder used the Taser on Nolan's back. Bailey was able to grab Nolan's wrist and place him in handcuffs. The officers escorted him outside and placed him in a patrol car. An aid worker checked on him and Elder drove Nolan to jail. On the way to the jail, Nolan screamed and called Elder a "fucking pig." He leaned forward toward Elder and said, "I'm going to kill you." RP at 94.
The State charged Nolan with two counts of indecent liberties (counts I and II), one count of resisting arrest (count III), one count of fourth degree assault (count IV), and one count of felony harassment (count V). Due to the unavailability of the alleged victim on counts I, II, and IV, the State dismissed them without prejudice and trial proceeded on the resisting arrest and felony harassment charges.
Because the charges for indecent liberties and assault, which constituted the basis of Nolan's arrest, were not to be tried at the same time, Nolan brought a motion in limine to exclude any mention of those charges from trial. The State contested the motion, arguing that one of the elements of the charge of resisting arrest was that the arrest be lawful; thus, the State needed to refer to the basis of the arrest and that the alleged assault was relevant to Elder's state of mind concerning Nolan's threats against him.
Nolan stated that he did not want the alleged assault used during the jury's consideration of his guilt on the resisting arrest and felony harassment charges but agreed that Elder's knowledge of the alleged assault was relevant to his mental state. He ultimately agreed to stipulate that, on the day of the incident, the officers had lawful authority to arrest him. During the discussion of his motion in limine, Nolan asserted that he might use cross-examination or a limiting instruction to reveal that the assault charge was dismissed. After further colloquy with the court, Nolan waived a CrR 3.5 hearing. At trial, Bailey, Renshaw, and Elder testified. Nolan did not call witnesses or testify.
Bailey testified that the Taser is a level one use of force — one of the lowest levels of force available to officers. He testified that during the struggle with Nolan he was concerned for officer safety and that, under circumstances such as those surrounding Nolan's arrest, use of a Taser would have been common. Similarly, Renshaw testified that Elder's use of force was appropriate and he would have acted the same had he been in Elder's position. Elder testified about Nolan's threat to kill him:
[THE STATE:] After aid had checked him out, what did you do?
[ELDER:] Then I drove — started driving to the Lewis County Jail. He was still screaming and stuff until we got to about 16th Street, and then he became quiet. I thought, "Okay, he's finally done. He's finally calming down." And that's when he leaned forward — he was directly behind me when I was driving. Leaned forward up to the cage and said, "I'm going to kill you."
[THE STATE:] And did he continue to keep his face close to your head after he said that?
[ELDER:] I asked him, "Are you threatening me?" And then he sat back and didn't say a word again until we got to the jail, and as soon as we got to the door of the jail, he started in again. You know, "You fucking pig," and —
[THE STATE:] And did you take that threat seriously?
[ELDER:] Yes, I did.
[THE STATE:] And why is that?
[ELDER:] You've got to look at the whole entire picture, you know. We're already there for an assault on one and threatened assault on another. He just defeated my Taser, and now he's making threats to kill me. I live in this community, and in our line of work you have to take threats seriously like that. I've actually had him flagged in the system as an officer safety, in case other officers come in contact with him.
[THE STATE:] Did all that factor into your belief that he was serious?
[ELDER:] Yes.
[THE STATE:] Did you think he was going to carry it out at that very moment?
[ELDER:] Well, he couldn't do it at that moment because he was handcuffed in the back of the car, and I'd already searched him.
[THE STATE:] When did you think he might do that?
[ELDER:] One day shopping at Wal-Mart or anything else, come up behind you and — it happens in our line of work.
[THE STATE:] Have you had any training or instructions regarding getting threats while you're on duty?
[ELDER:] Yeah. We go to — called "Street Survival" by Caliber Press, and they cover stuff like that, officers that are murdered with their families, and cars blown up by suspects when they've made threats. They teach us, you know, when you get a threat like that, you need to take it seriously and use precautions.
RP at 94-96 (emphasis added).
During each officer's testimony, the State elicited the fact that the officers were investigating an alleged assault. The court did not allow testimony from Elder regarding the assault charge or its subsequent dismissal, consistent with the mutual pretrial agreement between Nolan and the State.
At the close of the State's case, Nolan unsuccessfully moved to dismiss the felony harassment charge, arguing that his threat did not place Elder in reasonable fear that he would carry out the threat. He also proposed a lesser included offense instruction for misdemeanor harassment. After considering State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (2003), the trial court refused the instruction, ruling that it was unwarranted because in this case there was a threat to kill, rather than to injure. A jury found Nolan guilty on both counts.
Nolan appeals.
ANALYSIS
I. Evidence of Dismissed Assault Charge
Nolan argues that the trial court denied him the right to due process under the Washington State Constitution, article 1, section 3, and the Fourteenth Amendment to the United States Constitution when it refused to allow him to present relevant, exculpatory evidence that the trial court dismissed the assault charge against him.
A. Preservation
The trial court has broad discretion to admit or exclude evidence and we will not reverse such action absent an abuse of discretion. State v. Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.3d 354 (2006). The trial court abuses its discretion "if no reasonable person would have decided the matter as the trial court did." State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004), review granted in part, 163 Wn.2d 1033, 187 P.3d 269 (2008). While criminal defendants have a constitutional right to present a defense consisting of relevant, admissible evidence, no such right extends to admission of irrelevant evidence. Mee Hui Kim, 134 Wn. App. at 41.
To obtain appellate review of a trial court's exclusion of evidence, the appellant must make an offer of proof at trial. State v. Vargas, 25 Wn. App. 809, 816-17, 610 P.2d 1 (1980). The offer of proof "must be more than mere argument or colloquy"; the offer should be sufficiently definite and comprehensive to advise the trial court as to whether the evidence is admissible, as well as inform the appellate court whether exclusion prejudices the appellant. Vargas, 25 Wn. App. at 817.
Here, Nolan asked the trial court to exclude any evidence of the dismissed charges. If no final ruling was made on his motion in limine, he was "`under a duty to raise the issue at the appropriate time with proper objections at trial.'" State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995) (quoting State v. Koloske, 100 Wn.2d 889, 896, 676 P.2d 456 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988), adhered to on reh'g, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989)). The trial court apparently did not rule on Nolan's motion in limine because he reached an agreement with the State to limit the evidence to the fact that the State had a lawful reason to arrest him. The result, nevertheless, was consistent with his motion to exclude evidence of the assault charge at trial, contrary to his argument on appeal that the trial court should have admitted evidence regarding the State's dismissal of the assault charge.
It is clear that his motion in limine did not address the instant issue and Nolan did not preserve it for appeal during trial by taking exception to the trial court's ruling excluding evidence of dismissal of the assault charge. Furthermore, the record contains no evidence that, when the court sustained an objection to questions on cross-examination relating to dismissal of the assault charge, Nolan made an offer of proof or requested a limiting instruction on the jury's use of the evidence.
Thus, Nolan waived any trial court error in excluding the dismissal evidence because he failed to provide the trial court an opportunity to consider his objection to the ruling. Therefore, we need not review the trial court's exclusion of evidence that assault charges against Nolan were dismissed. But even upon an examination of the trial court's ruling, we note that criminal defendants have a constitutional right to present a defense consisting of relevant, admissible evidence and no such right extends to admission of irrelevant evidence. Mee Hui Kim, 134 Wn. App. at 41.
Of consequence to the State's case was whether it was objectively reasonable for Elder to believe that Nolan would carry out his death threat immediately or in the future. See State v. Ragin, 94 Wn. App. 407, 411, 972 P.2d 519 (1999) ("A defendant is guilty of felony harassment if he threatens to cause bodily injury to a person, and the person is placed in `reasonable fear that the threat will be carried out.'") (quoting RCW 9A.46.020(1)(b)); RCW 9A.46.020(1)(a)(i). Nolan argues that the fact that there had been no assault was relevant to show that Elder's fear was not reasonable.
But, contrary to Nolan's position, evidence that the trial court later dismissed the assault charge does not prove that no assault occurred and is irrelevant to Elder's objectively reasonable fear arising from Nolan's threat to kill him following the incident that resulted in an assault charge against Nolan. Thus, any reasonable person would have decided under the circumstances, as the trial court did, to exclude evidence that the assault charge was dismissed and the trial court did not abuse its discretion.
II. Denial of Proposed Jury Instruction on Misdemeanor Harassment
Nolan argues that the trial court denied him his right to a fair trial under the Washington State Constitution, article 1, section 3, and the Fourteenth Amendment to the United States Constitution when it refused to instruct the jury on the lesser included offense of misdemeanor harassment, in addition to felony harassment.
We review legal errors such as an alleged error in a trial court's jury instructions de novo. State v. Porter, 150 Wn.2d 732, 735, 82 P.3d 234 (2004). Criminal defendants have a constitutional right to know the charges against them and courts may only convict defendants of those crimes charged. But, where the evidence supports it, both the State and the defendant have a statutory right to present instructions to the jury on lesser included offenses. State v. Gamble, 154 Wn.2d 457, 462, 114 P.3d 646 (2005).
Jury instructions are also statutorily permissible for inferior degree offenses. RCW 10.61.003 (noting that a jury may convict a defendant for an inferior degree of a charged crime). Although courts have often used the terms "lesser included offense" and "inferior degree offense" interchangeably, the terms are in fact different. State v. Tamalini, 134 Wn.2d 725, 731-32, 953 P.2d 450 (1998); compare RCW 10.61.006 with RCW 10.61.003. Significantly, the State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978) test is used to determine whether a crime is a lesser included offense, whereas the test is slightly different for inferior degree offense instructions.
[A] defendant is entitled to an instruction on an inferior degree offense when (1) the statutes for both the charged offense and the proposed inferior degree offense "proscribe but one offense"; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense.
We apply the State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978) test to determine whether a lesser offense is included within a charged offense. Porter, 150 Wn.2d at 736. The Workman test is two-pronged. "`First, each of the elements of the lesser offense must be a necessary element of the offense charged.'" Porter, 150 Wn.2d at 736 (quoting Workman, 90 Wn.2d at 447-48) (emphasis omitted). Second, "the evidence must raise an inference that only the lesser included . . . offense was committed to the exclusion of the charged offense." State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).
Under the first, or legal, prong of the Workman test, "`if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime.'" Porter, 150 Wn.2d at 736 (internal quotation marks omitted) (quoting State v. Frazier, 99 Wn.2d 180, 191, 661 P.2d 126 (1983)) (emphasis omitted). Thus, the elements of the greater offense must necessarily and invariably include the elements of the lesser offense and "the lesser offense must arise from the same act or transaction supporting the greater charged offense." Porter, 150 Wn.2d at 738.
Elder testified that Nolan threatened him by saying, "I'm going to kill you." The record contains no other threats. As such, based on that threat alone, the jury convicted Nolan of felony harassment under RCW 9A.46.020, which requires proof that (1) the defendant threatened to kill a person and (2) the person was placed in reasonable fear that the threat to kill him would be ( State v. Daniels, 56 Wn. App. 646, 651, 784 P. 2d 579 . . . (1990)). Tamalini, 134 Wn.2d at 732 (emphasis added) (internal citations omitted). Because the parties here have characterized RCW 9A.46.020 as describing two distinct offenses and analyzed the issue exclusively under the Workman test, we analyze the crime solely as a lesser included offense under the Workman test. carried out. See C.G., 150 Wn.2d at 607-08.
RCW 9A.46.020 states:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; [and]. . . .
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. "Words or conduct" includes, in addition to any other form of communication or conduct, the sending of an electronic communication.
(2) (a) Except as provided in (b) of this subsection, a person who harasses another is guilty of a gross misdemeanor.
(b) A person who harasses another is guilty of a class C felony if either of the following applies: (i) The person has previously been convicted in this or any other state of any crime of harassment, as defined in RCW 9A.46.060, of the same victim or members of the victim's family or household or any person specifically named in a no-contact or no-harassment order; or (ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person.
The distinction between felony and misdemeanor harassment lies in the type of threat, "[t]he offense of harassment is elevated from a misdemeanor to a felony when the threat is a threat to kill." State v. Mills, 154 Wn.2d 1, 12, 109 P.3d 415 (2005). The State must also prove that the person threatened was placed in reasonable fear that the defendant would carry out the specified threat. Mills, 154 Wn.2d at 12.
Nolan argues that, under RCW 9A.46.020, "a threat to kill would always constitute a threat to harm, [so] every violation of the statute would also constitute a misdemeanor violation of the statute." Corrected Br. of Appellant at 15-16. In essence, Nolan argues that the elements of felony harassment (threatening to kill a person and placing the person threatened in reasonable fear that the threat to kill would be carried out) must necessarily and invariably include the elements of misdemeanor harassment — in particular, bodily injury — because a threat of death invariably necessitates a threat of bodily injury and a fear of death invariably necessitates a fear of bodily injury. The State does not dispute these contentions. Thus, Nolan likely satisfies the legal prong.
Under the factual prong of the Workman test, "`the evidence must raise an inference that only the lesser included . . . offense was committed, to the exclusion of the charged offense.'" Porter, 150 Wn.2d at 737 (quoting Fernandez-Medina, 141 Wn.2d at 455). "`[T]he evidence must affirmatively establish the defendant's theory of the case — it is not enough that the jury might disbelieve the evidence pointing to guilt.'" Porter, 150 Wn.2d at 737 (quoting Fernandez-Medina, 141 Wn.2d at 456).
Nolan argues that the trial court erred in failing to give the lesser included offense instruction because the jury could have found "(1) that the defendant had made the threat to kill, and (2) the officer's belief in that threat to be unreasonable, but [found] (3) that it was reasonable for the officer to believe that the defendant would harm him in some manner other than killing him." Corrected Br. of Appellant at 16. In support of this argument, Nolan relies on C.G., 150 Wn.2d at 611.
In C.G., our Supreme Court held that, to uphold a conviction for felony harassment, the victim's fear must be of the actual threat made — the threat to kill. 150 Wn.2d at 607, 612. In C.G., the defendant, a high school student, became disruptive in class when asked about a missing pencil. When the vice-principal escorted the defendant from class, the defendant said, "I'll kill you Mr. Haney, I'll kill you." C.G., 150 Wn.2d at 607 (internal quotation marks omitted). At an adjudicatory hearing on the matter, the vice-principal testified that he was concerned the defendant might try to harm him or someone else. On those facts, the juvenile court adjudicated the defendant guilty of felony harassment. C.G., 150 Wn.2d at 607.
On appeal, the defendant argued that the evidence was not sufficient to support her adjudication for felony harassment because "the State did not prove that [the vice-principal] was placed in reasonable fear that [the defendant] would kill him." C.G., 150 Wn.2d at 607. Our Supreme Court reversed the adjudication of felony harassment, concluding that, under the plain language of the harassment statute, "a conviction of felony harassment based upon a threat to kill requires proof that the person threatened was placed in reasonable fear that the threat to kill would be carried out." C.G., 150 Wn.2d at 606.
A threat to kill need not be interpreted literally; rather, its meaning depends on all the attendant facts and circumstances. C.G., 150 Wn.2d at 610-11. The language Nolan relies on was the Court's observation that
the State will still be able to charge one who threatens to kill with threatening to inflict bodily injury, in the nature of a lesser included offense, thus enabling a misdemeanor charge even if the person threatened was not placed in reasonable fear that the threat to kill would be carried out, but was placed in fear of bodily injury.
The Court in C.G. addressed only the defendant's claim of insufficient evidence as it pertained to statutory interpretation, not in the context of jury instructions on a lesser included offense, because there is no jury in juvenile proceedings.
The Court in C.G. addressed only the defendant's claim of insufficient evidence as it pertained to statutory interpretation, not in the context of jury instructions on a lesser included offense, because there is no jury in juvenile proceedings.
C.G., 150 Wn.2d at 611. But this language in C.G. does not mandate lesser included offense instructions in all harassment cases, particularly when the record does not support the factual prong of Workman.
In C.G., the vice-principal testified that, although the threat was against his life, he feared only bodily injury. 150 Wn.2d at 607. On those facts, a jury could have found that the high school student's threat against the vice-principal, spawned by an argument over a missing pencil, was not, in fact, a death threat but that it was a threat to inflict bodily injury.
Here, the facts and circumstances do not support an inference that the evidence satisfied the factual prong of Workman and that Nolan committed only misdemeanor harassment. Elder testified that Nolan threatened to kill him and he feared that specific threat. Elder specifically mentioned officers and their families being murdered and their cars being blown up — in other words, death — evidence that, when Nolan threatened to kill Elder, Elder feared being killed. Nothing in the record raises an inference that Nolan only threatened bodily injury or that Elder only feared bodily injury, to the exclusion of death. Thus, Nolan does not satisfy the factual prong of the Workman test and the trial court did not err in refusing a lesser degree instruction.
III. Comment on Silence
Nolan argues that the State violated his right to remain silent under the Washington State Constitution, article 1, section 9, and the Fifth Amendment to the United States Constitution when it elicited testimony from Elder that Nolan refused to respond to Elder after making his threat. Specifically, Nolan challenges the following testimony:
[ELDER:]. . . . And that's when he leaned forward — he was directly behind me when I was driving. Leaned forward up to the cage and said, "I'm going to kill you."
[THE STATE:] And did he continue to keep his face close to your head after he said that?
[ELDER:] I asked him, "Are you threatening me?" And then he sat back and didn't say a word again until we got to the jail, and as soon as we got to the door of the jail, he started in again. You know, "You fucking pig," and —
RP at 94 (emphasis added).
Comments regarding a constitutional claim of silence pose an exception to the rule that issues may not be raised for the first time on appeal. RAP 2.5(a)(3); see, e.g., State v. Holmes, 122 Wn. App. 438, 445-46, 93 P.3d 212 (2004). We review claims of constitutional error de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). The State bears the burden of showing, beyond a reasonable doubt, that the error was harmless. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996). An error is harmless if any reasonable jury would have reached the same result had the error not occurred. Easter, 130 Wn.2d at 242.
Criminal defendants have a constitutional right to be free from self-incrimination. Easter, 130 Wn.2d at 235. This right prohibits the State from using a defendant's silence as substantive evidence of guilt. But an impermissible comment on silence requires more than mere reference to silence. State v. Slone, 133 Wn. App. 120, 127, 134 P.3d 1217 (2006), review denied, 159 Wn.2d 1010 (2007). Thus, when the State refers to a defendant's silence, we consider "`whether the [State] manifestly intended the remarks to be a comment on that right.'" State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1 (2008) (quoting State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (1991)). If, standing alone, the comment is "`so subtle and so brief that [it does] not naturally and necessarily emphasize defendant's testimonial silence,'" then the comment is permissible. Burke, 163 Wn.2d at 216 (internal quotation marks omitted) (quoting State v. Crawford, 21 Wn. App. 146, 152, 584 P.2d 442 (1978)). A mere reference is not reversible constitutional error absent a showing of prejudice. Slone, 133 Wn. App. at 127.
Nolan takes issue with the State's question, "And did he continue to keep his face close to your head after he said that?"; and with Elder's testimony that, "I asked him, "Are you threatening me?" And then he sat back and didn't say a word again until we got to the jail." RP at 94. Contrary to Nolan's assertion, the State's question appears to be aimed at eliciting additional information about the threatening nature of Nolan's behavior, rather than eliciting a comment on Nolan's silence. And Elder's comment on Nolan's silence is so subtle and so brief as to not naturally and necessarily emphasize the silence. Rather, it emphasizes Nolan's abrupt change in attitude, where he is first screaming at Elder, then threatening him, and then calmly sitting back. Thus, we hold that the State's question and Elder's response constitute a mere reference to silence, rather than an impermissible comment.
Furthermore, the comments were harmless because, beyond a reasonable doubt, any reasonable jury would have reached the same result absent the error. And Nolan's silence in answer to Elder's question could just as reasonably imply a response in the negative as a response in the affirmative. In that way, Nolan's silence, more probably than not, helped his defense by suggesting that he had calmed down and that his threat to kill Elder was not serious. We hold that the State did not impermissibly comment on Nolan's silence.
IV. Sufficiency of the Evidence To Convict of Felony Harassment
Nolan also argues that the trial court denied him due process under the Washington State Constitution, article 1, section 3, and the Fourteenth Amendment to the United States Constitution when it entered judgment against him for felony harassment because the conviction was not supported by substantial evidence. He argues that a threat of harm at some point in the future is insufficient to support a charge of felony harassment; thus, because Elder testified that he thought Nolan might carry out the threat to kill him "[o]ne day shopping at Wal-Mart or anything else," the evidence is insufficient to support felony harassment. RP at 95.
The defendant's constitutional right to due process requires the State to prove all elements of the crime beyond a reasonable doubt. State v. Lively, 130 Wn.2d 1, 11, 921 P.2d 1035 (1996). When a defendant claims that the evidence was insufficient to support a conviction, we review whether a trier of fact could rationally find guilt beyond a reasonable doubt based on the totality of the evidence. State v. Brockob, 159 Wn.2d 311, 336, 150 P.3d 59 (2006). A sufficiency challenge admits the truth of the State's evidence and all reasonable inferences therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980). We draw all reasonable inferences from the evidence in favor of the State and interpret it most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wn.2d at 874.
Conviction of felony harassment requires proof of two main elements: (1) the defendant threatened to kill a person and (2) the person was placed in reasonable fear that the threat to kill him could be carried out. See, e.g., C.G., 150 Wn.2d at 607-08. In addition, because a literal reading of the harassment statute criminalizes some speech protected by the First Amendment, to avoid unconstitutional infringement, the statute must be read to prohibit only "true threat[s]." State v. Kilburn, 151 Wn.2d 36, 41, 43, 84 P.3d 1215 (2004).
"A true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of intention to inflict bodily harm upon or to take the life of another person." Kilburn, 151 Wn.2d at 43 (internal quotation marks omitted) (quoting State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001)). But determinations of whether the defendant's language constitutes a "true threat" are for the trier of fact. State v. Johnston, 156 Wn.2d 355, 365, 127 P.3d 707 (2006).
Nolan presented no evidence to contradict the State's testimony that, as Elder drove Nolan to jail, Nolan leaned forward to Elder and said, "I'm going to kill you." RP at 94. The jury resolves determinations on whether Nolan's threat constituted a "true threat." Based on such evidence, any trier of fact could rationally find that Nolan threatened to kill Elder.
Furthermore, the State's evidence showed: (1) on the night of the incident, Elder was called to the scene of an alleged assault; (2) the assault victim told Elder that Nolan had run her head into a pole and a witness told Elder that Nolan challenged him to a fight; (3) when Elder attempted to arrest Nolan, he was non-compliant and Elder had to Taser him twice; (4) as Elder drove Nolan to jail, Nolan began screaming and calling Elder a "fucking pig," then leaned forward and said, "I'm going to kill you"; (5) Elder took Nolan's threat seriously; (6) Elder believed that Nolan might carry out the threat "one day shopping at Wal-Mart or anything else"; (7) Elder's job training and instruction taught him to take threats seriously; and (8) Elder knew that officers had been murdered with their families and had their cars blown up. RP at 94-95. Drawing all reasonable inferences in favor of the State and interpreting it most strongly against Nolan, any trier of fact could find beyond a reasonable doubt that Nolan's threat placed Elder in reasonable fear that the threat to kill him would be carried out.
Finally, Nolan's reliance on C.G. is misplaced. It does not stand for the proposition that evidence of threatened future harm is insufficient to support a felony harassment conviction. See C.G., 150 Wn. 2d at 611. On the contrary, the express language of the harassment statute, RCW 9A.46.020(1)(a)(i), makes clear that harassment includes threats "[t]o cause bodily injury immediately or in the future." (Emphasis added.)
IV. Statement of Additional Grounds
Nolan asserts in his SAG that his arrest was unlawful, his right to a fair trial was abridged, his counsel was ineffective, and that he is entitled to a new trial based on cumulative
A. Arrest
Nolan appears to argue that his arrest was unlawful and that the officers used excessive force in arresting him with use of a Taser, thereby violating his rights under the Fourth Amendment to the United States Constitution.
Nolan specifically argues that, "It is the government's burden to prove that consent[to enter [the] home was freely and voluntarily given." SAG at 3 (citing U.S. v. Ivy, 165 F.3d 397 (6th Cir. 1998)). This appears to be an argument that the officers' entry into the home where they arrested Nolan was unlawful.
The uncontroverted evidence in the record shows that the homeowner allowed the officers to enter the home. State v. Raines, 55 Wn. App. 459, 462, 778 P.2d 538 (1989) ("A warrantless search of a home is constitutional when the householder voluntarily consents."). While guests have a limited right to be free from warrantless searches, such rights do not extend to common areas of the home, such as the living room. See State v. Thang, 145 Wn.2d 630, 638-39, 41 P.3d 1159 (2002) ("[C]onsent to search by a host is always effective against a guest within the common areas of the premises."). There was no evidence that Nolan was a homeowner or that his status was more than that of a guest. The State met its burden to show that the officers legally entered the house to locate and arrest Nolan.
Nolan also asserts that, at the time the officers entered the home where they arrested him, he was sleeping on a couch and posed no threat to anyone. He argues that the officers used excessive force when they Tasered him multiple times.
Nolan refers to additional reasons that are outside the record. But we do not consider matters outside the record on appeal. RAP 9.2(b).
Even if a defendant's arrest is supported by probable cause, use of excessive force in accomplishing the arrest clearly violates the Fourth Amendment. Staats v. Brown, 139 Wn.2d 757, 774, 991 P.2d 615 (2000). We analyze claims of excessive force during an arrest under the Fourth Amendment's "objective reasonableness" standard. Brown, 139 Wn.2d at 774. Reasonableness is determined
from the perspective of a reasonable officer on the scene, not 20/20 hindsight. It is a standard of the moment as police officers are often forced to make split second judgments in tense, uncertain, and rapidly evolving circumstances. Moreover, "`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment."
Brown, 139 Wn.2d at 774 (citations omitted). Facts and circumstances relevant to a reasonableness determination include: "the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [wa]s actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 443 (1989).
At trial, Renshaw and Bailey testified that the use of a Taser was reasonable under the circumstances. The officers had been called to investigate an alleged assault — a violent crime. When the officers saw Nolan, they could not determine whether he had a weapon under the blanket or if there was a gun in the couch and Bailey testified that, during the arrest, he was concerned for officer safety. And Nolan does not assign error to his conviction for resisting arrest. Moreover, Elder and Renshaw each asked twice to see Nolan's hands, the second time warning, "Let me see your hands or you're going to get Tased." RP at 56. Bailey testified that the Taser is a level one use of force — one of the lowest levels of force available to officers. Under the facts and circumstances of Nolan's arrest, the amount of force used in arresting Nolan was objectively reasonable.
We hold that neither the circumstances surrounding Nolan's arrest or the means used to effect Nolan's arrest violated his constitutional rights.
B. Due Process Right to a Fair Trial — Admission of Evidence
Nolan further argues that the trial court denied his rights to due process and a fair trial when it admitted evidence (1) of statements from the victim and witness at the scene of the incident, (2) that Nolan threatened the safety of police officers, and (3) that Nolan had been watching a pornographic movie prior to his arrest.
Nolan repeats his argument about the trial court's admission of a possible prior assault. Having dealt with it in his direct appeal, we do not further address it in response to his SAG argument.
The trial court has broad discretion to admit or exclude evidence and we will not reverse such action absent an abuse of discretion. Mee Hui Kim, 134 Wn. App. at 41. "[T]he trial court['s] decision will be reversed only if no reasonable person would have decided the matter as the trial court did." Thomas, 150 Wn.2d at 856.
Nolan failed to object to any of this testimony. Thus, he has failed to preserve these issues for appeal. ER 103(a)(1); State v. Avendano-Lopez, 79 Wn. App. 706, 710, 904 P.2d 324 (1995) (holding that, in order to obtain appellate review of a trial court's admission of evidence, the appellant must make a timely and specific objection at trial).
Even if we were to address the merits of this argument, evidence from alleged witnesses and evidence from victims of a crime are relevant in a criminal trial. Furthermore, these witnesses were able to tell the officers where to find Nolan and describe his behaviors to assist the officers in assessing the risk to themselves and others. Part of that risk assessment includes what Nolan was doing when police first located him, as any threat to the officers is relevant in a felony harassment charge involving threats to the officer. ER 401. Any reasonable person could have decided, as the trial court did, to admit the evidence and the trial court did not abuse its discretion.
C. Ineffective Assistance of Counsel
Nolan argues that his trial counsel provided ineffective assistance for (1) failing to object to hearsay statements from the victim and witnesses to the alleged assault and (2) failing to meaningfully object to the admission of evidence regarding the alleged assault.
Nolan asserts numerous deficiencies in his trial counsel's performance, but most of these allegations are outside the record. Whether counsel's assistance was ineffective is determined based solely upon the record. If a defendant wishes to raise issues that require evidence or facts not in the trial record, then the appropriate means of doing so is through a personal restraint petition. See, e.g., State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
The federal and state constitutions guarantee criminal defendants the right to effective assistance of counsel. See U.S. Const. amend VI; Wash. Const. art. I, § 22. To prevail on a claim of ineffective assistance, the defendant must show (1) that his counsel's performance was deficient in that it fell below an objective standard of reasonableness based on all the circumstances and (2) the deficient performance prejudiced him because, had the errors not occurred, the result would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The defendant must satisfy both criteria in order to show that the conviction "`resulted from a breakdown in the adversary process that renders the result unreliable.'" State v. Garrett, 124 Wn.2d 504, 518, 881 P.2d 185 (1994) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
We give deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689. The burden is on the defendant to show deficient representation. McFarland, 127 Wn.2d at 335. When a challenged action goes to a legitimate trial strategy or tactic, including whether to object during trial, only in egregious circumstances will the failure to object constitute ineffective assistance of counsel. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).
Nolan argues that his trial counsel's failure to object to evidence regarding out-of-court statements denied him his rights under the confrontation clause. Specifically, Nolan refers to "statements admitted to the jury saying the officers had a right to enter the home." SAG at 11. He makes no corresponding cite to the record. Apparently, he is referring to testimony by Bailey and Renshaw that the owner of the home where the officers found Nolan opened the door and let them in.
[THE STATE:] . . . How did you end up getting into the residence there?
[BAILEY:] The homeowner let us in and, yeah, he opened the door and let us in.
RP at 32.
[RENSHAW:]. . . . I said, `I need you to open the front door for my officer[']. So then I told the son to stay there, I went back to the front door, and that's when the door was opened by the homeowner.
RP at 55.
Contrary to Nolan's assertion, the record contains no out-of-court statements regarding the officers' right to enter the home. His trial counsel's failure to object to the officers' statements about how they found Nolan in the house was a legitimate trial strategy and did not constitute ineffective assistance of counsel.
Nolan also argues that his trial counsel's failure to object to evidence regarding the alleged assault prejudiced him and denied him his right to a fair trial. But his counsel did object to this evidence and filed a motion in limine to exclude evidence of the assault charge. During that hearing, he also acknowledged that Elder's awareness of the alleged assault was relevant and admissible evidence on the felony assault charge. Nolan's attorney was able to secure a stipulation with the State that Nolan's arrest was lawful without evidence that he was charged with assault.
Moreover, we have held that the witnesses' statements were admissible given the relevance of Elder's knowledge of the nature of the incident to which he responded, his need to locate Nolan, and his ability to assess risk to himself and others. Nolan's counsel's representation did not fall below an objective standard of reasonableness based on the circumstances.
D. Cumulative Error
Finally, Nolan argues that, based on numerous errors, the trial court denied him his right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and the cumulative error doctrine warrants reversal of his conviction.
The cumulative error doctrine applies when several errors occurred at the trial court level and no single error 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). The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified, 123 Wn.2d 737, 870 P.2d 964 (1994).
Because we find no error or abuse of discretion by the trial court, cumulative error does not warrant reversal.
We affirm.
Houghton, J. and Bridgewater, J., concur.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for the public record pursuant to RCW 2.06.040, it
is so ordered.