Opinion
No. 25327-5-II (consolidated with No. 27573-2-II).
Filed: September 23, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Grays Harbor County. Docket No: 99-1-00060-1. Judgment or order under review. Date filed: 10/25/1999.
Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, # 552, 4603 University Vlg NE, Seattle, WA 98105-5091.
Thomas Edward Doyle, Attorney at Law, P.O. Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Gerald R. Fuller, Grays Harbor Co Pros Ofc, 102 Broadway Ave W Rm 102, Montesano, WA 98563-3621.
Steven Pink appeals from his convictions of and sentence on first degree assault while armed with a deadly weapon and conspiracy to commit first degree murder with a deadly weapon, arguing various errors. We affirm.
FACTS Crime
We set forth a lengthy recitation of facts due to numerous issues Pink raised pro se.
On January 26 1999, while leaving for work from his Montesano home, Thomas Perrine noticed a beer bottle on top of a box and a shopping bag containing smashed beer cans between his truck and his boat. When he picked up the box, it exploded and severely injured him. While being treated at the hospital, Perrine, a community corrections officer (CCO), told police officers that he suspected Pink's involvement.
Brian Downey of the Bureau of Alcohol, Tobacco and Firearms later testified that the box was an improvised booby-trap type of explosive device.
Hoquiam police officers arrested Pink at about 5:00 p.m. on January 26 on an unrelated matter. Pink had parked his car adjacent to where the police arrested him. The police did not search the car but impounded and secured it at the Hoquiam Police Department. The Montesano Police Department obtained a search warrant for Pink's car on January 27 and conducted a search on January 29.
After his arrest, Pink asked to speak with Grays Harbor Sheriff Detective Douglas Smythe. Pink told Smythe that he knew who committed the bombing and was willing to cooperate if the State dropped all charges against him.
When Smythe asked Pink what bombing he was referring to, he replied `My P.O., Tom Perrine.' III Report of Proceedings (RP) at 476. Pink told Smythe that an acquaintance named Gary planted the bomb. Pink did not provide Gary's last name but he gave Smythe directions to Gary's house. Pink also gave Smythe Gary's telephone number. The number was listed under Gary Davis.
We assume Pink refers to a CCO by its former term, Parole Officer or P.O.
Pink told Smythe that Gary showed him the bomb in December 1998. At Smythe's request, Pink drew a diagram of the device he saw at Gary's house. According to Smythe, Pink `drew a square box with two round circles in it and some squiggly lines that he was describing as being the nails that were packed at the back of the container, and the two round circles that he indicated were the battery, and the — possibly the detonating device, and he also said there was a detonator in there.' III RP at 482.
In a later interview, Pink admitted that he gave explosives, including TNT, to Gary. Pink also described the detonator. Pink further told the detective that he had shown Davis how to fabricate a bomb from the materials. In another interview, Pink told Grays Harbor Undersheriff Rick Scott that he and Davis planned to shoot Perrine. Pink then denied having anything to do with the bombing.
According to Davis's family friend, Sharon Davidson, Davis built a bomb for Pink approximately one week before the incident. When Davidson and Davis left Davidson's house in her car between 2:30 and 3:00 a.m. on January 26, Davis carried a graham cracker box containing the bomb. He told Davidson that they were going to Perrine's house and that Pink told him to place the bomb on Perrine's car hood.
When they arrived at Perrine's house, Davis left with the box. Davis returned without the box five to seven minutes later. On their way home, Davis had Davidson stop at a convenience store so that he could call Pink and Michelle Lash, Pink's girlfriend.
Lash later testified that she heard Davis tell Pink that he wanted to shoot Perrine with a .22 rifle, but Pink suggested he use a bigger gun, a `30-aut-6.' III RP at 386. She also testified that her brother, Ron Lash, sold Davis a gun scope. And while she and Pink were driving to Reno on New Year's Day 1999, Lash overheard Pink tell Davis to have `it done while {Pink} was gone.' III RP at 389. Lash and Pink married while in Reno. Lash was also with Pink when he gave Davis a green ammunition box.
The box contained a silver handgun, and Pink indicated that the box also held enough explosives to blow up a football field. Lash explained that she saw wires and something that looked like Silly Putty in the box. She also testified that she overheard Davis tell Pink that he had been watching Perrine's place at night and he knew Perrine's movements.
Pink lived in Judy Petrina's attic before his arrest. Police searched the attic and found a rifle. Pink had told Lance Petrina, Judy's husband, to say that Lance owned the rifle if the police discovered it.
Ron Lash frequently visited Pink at Davis's house between December 1998 and January 1999. He testified that during this period Pink told him that he would `like to do' Perrine and that he would like to `blow{} him up' or shoot him. III RP at 444-45. Also, according to Ron, Davis unsuccessfully tried to build a gun silencer with a piece of PVC pipe and a baby bottle nipple.
Pink's fellow inmate, Andrew Rasmussen, testified that Pink complained to him that Perrine continually harassed him and caused him to return to prison. Rasmussen testified that Pink said that when he got out of prison he was going to get even with Perrine and `blow {him} away' if given the opportunity. II RP at 295.
Procedure
On April 2, 1999, the State charged Pink with conspiracy to commit first degree murder (count I) and first degree assault (count II), while armed with a deadly weapon for both counts. Pink moved to suppress evidence obtained from his car, arguing that the vehicle's warrantless seizure was unconstitutional. The trial court denied the motion.
A jury convicted Pink of both counts. The trial court imposed a 600 — month exceptional sentence on count I and a consecutive 147-month standard range sentence on count II.
In support of the exceptional sentence, the trial court found that the conspiracy to kill Perrine was directly related to his official CCO duties, and the placement of the bomb endangered Perrine and other members of his family in their zone of privacy.
On November 8, 1999, Pink appealed his conviction and sentence, arguing, there, that the trial court erred in admitting Lash's testimony in violation of the marital privilege statute and in considering Pink's Oregon conviction of second degree robbery and adding two points to his offender score.
We remanded the matter to the trial court to determine whether (1) the facts supported the marital privilege and (2) Pink's Oregon conviction was properly counted in his offender score.
On remand the trial court specifically noted that, according to Lash, Pink married her to provide himself with an alibi. Lash had previously married Patrick McFadden on April 6, 1998, and filed a petition for dissolution of the marriage on January 6, 1999. The marriage was dissolved on May 7, 1999. The trial court found that Lash married Pink while still married to McFadden. The court concluded that there was no basis to assert marital privilege and that the marriage between Pink and Lash was void ab initio.
Also on remand, the trial court found that it had properly included Pink's prior Oregon robbery conviction in his offender score because the Oregon second degree robbery conviction was comparable to Washington's first degree robbery.
Almost a year after sentencing, Pink filed a pro se motion for a new trial, arguing perjury, prosecutorial misconduct, and discovery abuse. The trial court denied the motion.
Pink appeals.
ANALYSIS Vehicle Search
Pink first contends that the trial court erred in denying his motion to suppress evidence obtained from his car because the police improperly seized it. He asserts that exigent circumstances did not justify the car's seizure.
We review a trial court's denial of a motion to suppress to determine whether substantial evidence supports the findings and whether the findings support the conclusions. State v. Teran, 71 Wn. App. 668, 671, 862 P.2d 137 (1993), review denied, 123 Wn.2d 1021 (1994). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the finding's truth. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
We review conclusions of law de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). And we give deference to the trial court on witness credibility. State v. Rogers, 44 Wn. App. 510, 515, 722 P.2d 1349 (1986).
A person arrested while in possession of a locked vehicle has a legitimate expectation of privacy in the vehicle and articles concealed from open view under Washington Constitution article I, section 7. State v. Simpson, 95 Wn.2d 170, 187, 622 P.2d 1199 (1980). When officers approach a parked, immobile, unoccupied, secured vehicle, exigent circumstances in addition to the potential mobility of the car must exist to justify a warrantless search or seizure. State v. Patterson, 112 Wn.2d 731, 735, 774 P.2d 10 (1989).
The exigency exception applies when it is impractical to obtain a warrant because: (1) the officer is in hot pursuit; (2) the suspect is fleeing the scene; (3) there is immediate danger to the arresting officer or the public; (4) there is potential mobility of a vehicle; and (5) there is potential mobility or destruction of the evidence. State v. Bessette, 105 Wn. App. 793, 798, 21 P.3d 318 (2001). The State must convince the court that it was impractical or unsafe for the officers to take the time to acquire a warrant or to explain why the warrant would have been unavailable if requested. Bessette, 105 Wn. App. at 798.
After a hearing on the motion to suppress, the trial court found the following undisputed facts. At approximately 7:30 a.m. on January 26, 1999, a bomb injured Perrine at his home. Perrine told law enforcement officers that he suspected Pink's involvement. At the time of incident, Pink had an outstanding arrest warrant, based on a violation report Perrine had submitted. All local law enforcement agencies were asked to locate and arrest Pink on his outstanding warrant. Law enforcement considered him a `person of interest' in the bombing. Clerk's Papers (CP) at 162. The police arrested Pink on January 26, 1999, at approximately 5:00 p.m. And Pink's vehicle was parked at the arrest scene. The officers reasonably believed, based on the information provided, that the car may have some connection with the bombing and might be a danger to the public if left unattended.
The police impounded and secured the vehicle, but they did not search it until executing a later obtained warrant. Before the impoundment, the Hoquiam officers attempted to contact members of the task force who were investigating the bombing to inquire about the vehicle.
The police then transported Pink to the Montesano Police Department, where they interviewed him for about an hour. Based on this interview, the officers sought and obtained a search warrant for Pink's car on January 27, 1999.
The investigators then contacted the Washington State Patrol, which has an explosive-sniffing dog. The dog and his handler were not available until January 29. On executing the search warrant, the dog indicated explosives present in the car. Based on this information, the police obtained a second search warrant that they executed on the vehicle the same day.
With regard to the search, the trial court entered the following conclusions of law. Hoquiam officers acted reasonably when they impounded Pink's car based on exigent circumstances, given their reasonable belief that the vehicle may have contained evidence or been a potential danger to the public. The court also concluded that the impoundment was a `seizure.' CP at 164. But the seizure did not directly result in discovery of evidence contained in the vehicle. The items taken were discovered while executing the search warrant. Once the police had probable cause to search the vehicle, they had the right to maintain control over the vehicle until they obtained a search warrant.
Based on our review of the hearing testimony and giving deference to the trial court's determination of witness credibility, we conclude that substantial evidence supports the trial court's findings. See Hill, 123 Wn.2d at 644. Those findings, along with the undisputed findings of fact, which are verities on appeal, establish exigent circumstances justifying seizing Pink's car without a warrant. The officers' reasonable belief that the car's contents posed a danger to the public, in addition to the vehicle's potential mobility, met the exigent circumstances factors outlined in Bessette. Thus, the trial court did not err in denying Pink's motion to suppress.
State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).
Because we hold the seizure was proper, we do not address Pink's argument that the inevitable discovery rule does not apply.
Marital Privilege
Pink next contends that the trial court erred in finding that he was not entitled to assert a marital privilege. He argues that even if his marriage was void at its inception, the court should have recognized it because he and Lash held themselves out as husband and wife and Lash later divorced McFadden. Pink also argues that a good faith exception should apply to assert marital privilege because he, the party asserting the privilege, believed the marriage was valid.
The law prohibits a marriage when either party has another spouse living at the time. RCW 26.04.020(1)(a); see also Nev. Rev. Stat. 122.020(1). Such a marriage is void ab initio. Barker v. Barker, 31 Wn.2d 506, 508-09, 197 P.2d 439 (1948).
RCW 5.60.060 protects communication between husband and wife. This privilege applies only where there is a valid marriage. State v. Denison, 78 Wn. App. 566, 574, 897 P.2d 437, review denied, 128 Wn.2d 1006 (1995).
On remand, the trial court found that Lash and McFadden married on April 6, 1998. Lash filed a petition for dissolution from her previous marriage on January 6, 1999. She remained married to McFadden until the dissolution decree was granted on May 7, 1999. Pink and Lash married each other while Lash was married to another. And the purpose of the second marriage, according to Lash in the trial court, was to provide an alibi for Pink. The court also found that Pink and Lash did not remarry after May 7, 1999, when Lash and McFadden ended their marriage. Based on these findings, the court properly determined that Pink had no basis to assert the marital privilege.
Lesser Included Offense
Pink further contends that he was entitled to a jury instruction on the lesser included offense of second degree assault. The law entitles a defendant to an instruction on a lesser included offense if (1) each of the elements of the lesser offense is a necessary element of the offense charged, and (2) the evidence in the case supports an inference that only the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
RCW 9A.36.011: first degree assault occurs when a person `(a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or . . . (c) Assaults another and inflicts great bodily harm.' RCW 9A.36.021: assault in the second degree occurs when a person `under circumstances not amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or . . . (c) Assaults another with a deadly weapon.'
The defendant cannot rely on the fact that the jury might simply disbelieve the State's evidence. State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990). `Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given.' Fowler, 114 Wn.2d at 67 (citing State v. Rodriguez, 48 Wn. App. 815, 820, 740 P.2d 904, review denied, 109 Wn.2d 1016 (1987)). The evidence Pink offers that he committed second degree assault, rather than first degree assault, is that he only gave the explosive material to Davis, who actually made and planted the bomb, and Pink told detectives that `he wouldn't do anything to hurt {Perrine}, or blow him up.' III RP at 491.
This evidence does not establish that Pink committed only second degree assault. The evidence shows that Pink gave Davis the explosive materials and showed him how to make the bomb. Pink told an undersheriff that he had planned to shoot Perrine. And Davis stated that Pink told him to place the bomb on the hood of Perrine's car.
The bomb's construction and location indicate that the person who planted it meant to cause great bodily harm or death. Pink provides no factual basis showing that he committed only second degree assault. The trial court correctly declined to give a lesser included offense instruction.
Same Criminal Conduct
Pink further contends that the court should have imposed concurrent sentences on his convictions of first degree assault and conspiracy to commit first degree murder because they encompassed the same criminal conduct.
Washington law defines same criminal conduct as two or more crimes that (1) require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. RCW 9.94A.589(1)(a); State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994). And `if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime.' Former RCW 9.94A-.400(1)(a) (2000). All three prongs of same criminal conduct must be met; the absence of any one of them prevents a finding of same criminal conduct. Vike, 125 Wn.2d at 410; State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992). If the court determines that convictions of two or more serious violent offenses do not encompass the same criminal conduct, the sentences should run consecutively. RCW 9.94A.589(1)(a), (b).
We review a sentencing court's decision under RCW 9.94A.589(1)(a), (b) for abuse of discretion. State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994). Abuse occurs when the trial court's discretion is `manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The trial court in declining to find same criminal conduct for the two convictions stated, As outlined, though, there's a question about whether I should treat the two offenses of the crimes of attempt to commit murder in the first degree and assault in the first degree as having merged for the purposes of sentencing. Basically, the law does provide that, in some cases, crimes are so identical that they should be treated as one for the purposes of sentencing.
In this case, the conspiracy to commit murder in the first degree was completed months before the bomb was placed. There was a conspiracy{;} there had been substantial steps taken to work toward that conspiracy, work toward that end. It took place in a totally different time frame than the assault. It took place over time, granted, but it was a completed offense, even if there had never been an assault. The intent required for assault in the first degree is different from the intent required for murder in the first degree, and that's a factor that I have to consider. I agree with {prosecuting attorney} that the place is different. The conspiracy took place around the table at Mr. Davis's house. It took place wherever the explosives were obtained by Mr. Pink. He said in Elma. It took place when the firearm was obtained and modified. None of that took place at Mr. Perrine's house, and that's where the assault took place. The two crimes do not represent the same criminal conduct . . . and Mr. Pink should be sentenced for each of them, and the law requires the sentences to be consecutive sentences. IV RP at 763-64.
The record shows that Pink completed the crime of conspiracy to commit first degree murder before the assault because he took substantial steps to commit the crime by obtaining a rifle, purchasing explosives, delivering the explosives to Davis, and showing him how to make a bomb. None of these actions occurred at Perrine's residence, which was the location of the assault. And the assault occurred at a different time from the conspiracy.
The trial court did not abuse its discretion in declining to view the two convictions as the same criminal conduct and in imposing consecutive sentences.
Because the trial court correctly determined that Pink's conviction did not encompass the same criminal conduct, his argument that the court should have imposed his sentencing enhancements concurrently under RCW 9.94A.400(b)(1) also fails.
Exceptional Sentence
Pink also contends that the trial court erred when it imposed an exceptional sentence upward because a jury, not the trial court, should have determined whether there were aggravating factors. He asserts that the jury should have found beyond a reasonable doubt that his motive was related to Perrine's exercise of his official duties because Perrine was not acting in the course of his CCO duties when the bomb injured him. Pink also asserts that the bomb's placement in Perrine's carport did not invade a zone of privacy and the court erred in finding this fact to be an aggravating factor for an exceptional sentence.
In his original appeal, Pink argued that his sentence was improperly calculated due to the inclusion of his prior conviction in Oregon for second degree robbery in the calculation. Pink does not challenge this finding in his post-remand supplemental brief. We decline to further address the issue.
Our Supreme Court held that the factual basis for an exceptional sentence upward need not be charged, submitted to the jury, or proven beyond a reasonable doubt, as long as the exceptional sentence does not exceed the statutory maximum. State v. Gore, 143 Wn.2d 288, 315, 21 P.3d 262 (2001). Here, the statutory maximum for Pink's crimes is life in prison. RCW 9.94A.400.
We hold that the trial court did not abuse its discretion in imposing an exceptional sentence upward based on two aggravating factors. First, the record provides sufficient evidence to support finding that the conspiracy to murder Perrine was directly related to the exercise of Perrine's official CCO duties. Second, we have long recognized that invasion of a zone of privacy may justify an exceptional sentence. State v. Falling, 50 Wn. App. 47, 55, 747 P.2d 1119 (1987) (the victim's bedroom is within the zone of privacy). We have also recognized that slashing a victim's tires while the car was parked at a parking garage near the victim's office and at her apartment is an invasion of a victim's zone of privacy. State v. Ratliff, 46 Wn. App. 466, 469-70, 731 P.2d 1114 (1987). Here, the court had sufficient evidence to find that the bomb was in a location where any member of Perrine's family could have triggered it.
Cumulative Errors and Ineffective Assistance of Counsel
Pink finally argues that cumulative errors and his counsel's ineffective assistance prejudiced him. Specifically, Pink argues that counsel should have objected to Lash's testimony on marital privilege grounds. He also argues that counsel should have objected to the court's imposition of consecutive deadly weapon enhancements as well as the court's findings regarding Pink's sentence.
Pink fails to prevail on any argument. Thus, his ineffective assistance of counsel and cumulative error claims fail.
Pink raises numerous other issues pro se. He argues prosecutorial misconduct and police coercion. He contends that the trial court should have granted his recusal request because Perrine had an ongoing relationship with the judge. He argues that the charging information did not set forth all of the elements of the crime and that his case was prejudiced by the amended complaint. These claims fail because there is nothing in the record to support them. RAP 10.3(4).
Pink further argues that the trial court erred in admitting co — conspirator statements and in not allowing him the opportunity for cross — examination. These arguments fail because the trial court correctly determined that Davis's statements were against his penal interest. ER 801(d)(2). Finally, because Pink did not make a timely motion for a new trial, his argument that the trial court erred in denying the motion likewise fails. CrR 7.5(b).
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.
SEINFELD, J. and HUNT, C.J., concur.