Opinion
No. 31063-5-II
Filed: March 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 03-1-00318-2. Judgment or order under review. Date filed: 10/23/2003. Judge signing: Hon. Edwin L. Poyfair.
Counsel for Appellant(s), David Schultz, Attorney at Law, 430 NE Everett, Camas, WA 98607-2115.
Counsel for Respondent(s), Thomas C. Duffy, Attorney at Law, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
Rachel Brooks Mitchell, Attorney at Law, 1014 Franklin St Ste 216, Vancouver, WA 98660-3040.
Jeremy Devon Richardson appeals his conviction for first degree criminal trespass with a special finding of domestic violence. He claims (1) that the charge did not adequately inform him that he could be convicted of first degree trespass; (2) that the trial court improperly defined `reasonable doubt'; (3) that the trial court improperly failed to define the phrase, `enter and remain unlawfully'; (4) that the trial court improperly permitted character evidence; (5) that the prosecutor engaged in misconduct during closing argument; (6) that he received ineffective assistance from his attorney; and (7) that the court erroneously ordered restitution. We affirm, except for the restitution order.
In early February 2003, Nicole Kline was romantically involved with two men. One, Anthony Kline, was her ex-husband. The other, Jeremy Richardson, was someone with whom she had previously lived off and on. Each man knew of the other's involvement.
On February 11, 2003, Nicole and Richardson argued at his apartment about his dating another woman. After she left, he discovered that someone had `keyed' his car. After trying to call her cell phone, he drove to her apartment.
Report of Proceedings (RP) at 82.
At this point, the participants' versions diverge. According to Nicole, she was outside walking toward her car when Richardson arrived. Richardson confronted her about `keying' his car and said that he wanted to talk to her and Anthony inside the house. When she refused, he entered the house without consent, looking for Anthony. She then went to Richardson's car, took his cell phone, and put it in her car. She went inside as he was coming down the stairs. They went outside, spoke briefly, and he left.
According to Anthony, he was in the bathroom when Richardson came in and assaulted him. Richardson insulted and verbally threatened him, damaged the bathroom door, and threatened and assaulted Nicole. When Richardson left, Anthony called the police.
According to Richardson, he went up to the front door of the house, and he and Nicole saw each other through a front window. She came to the door and voluntarily admitted him. After conversing briefly with Nicole, he went upstairs to talk to Anthony, who was in the bathroom. He insulted Anthony through the bathroom door but did not damage the door or assault anyone before he left.
After Richardson left, he realized that his phone was gone. He found and confronted Nicole, who was by then in her car on the way to work. Nicole called the police.
Richardson was charged with first degree burglary-domestic violence, fourth degree assault-domestic violence, and fourth degree assault. He pleaded not guilty, and a jury trial ensued.
In limine, the parties agreed, and the trial court ruled, that evidence of prior misconduct, whether by Richardson, Nicole, or Anthony, would not be admitted. During Anthony's testimony, however, the prosecutor elicited the following statements to which Richardson did not object:
Q [Prosecutor] Can you describe for us what your relationship with Nicki was like at that time?
A . . . [Nicole] had an incident happen around Christmas time, and it was time — it was obvious that she had to move out of her prior house.
. . .
Q Now will you tell me what happened after Mr. Richardson left the bathroom?
A Uh, he disappeared. . . . I needed to get on the phone because there had been prior things that had happened. So I felt the need to immediately get on the phone, and I called the police.
. . .
Q Well, after you got your cell phone, where did you go?
A I . . . went back into the bathroom, thinking that would be the safest place to be because he disappeared for a moment, and I had no idea if he . . . would get a weapon. I have — I mean, I just got threatened from him again. And so I went into the bathroom, shut the door, and made a call to 911.
. . .
Q And what did Nicki do next?
A [S]he was already about 45 minutes late to work, and . . . Nicki took off to work because she was — she was very fearful that she was going to lose her job at that time because there was some other things that happened at work.
RP at 6, 11-12, 14-15; see also Br. of Appellant at 7-8.
At the end of the evidence, the State proposed, and the trial court gave over Richardson's objection, an instruction on first degree criminal trespass as a lesser offense included within burglary. No one proposed, and the trial court did not give, an instruction defining the phrase, `enters or remains unlawfully.' The trial court gave a reasonable doubt instruction that included the following paragraph:
See RCW 9A.52.070.
See RCW 9A.52.010(3).
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
Clerk's Papers (CP) at 13 (Instruction No. 4).
During closing argument, the prosecutor made the following statements to which Richardson did not object:
[Nicole] and [Anthony] would have had two minutes to match their stories up. As [Anthony] stated, [Nicole] was only there for a couple of minutes before she left for work. But another thing that you should consider is that Mr. Richardson has had eight months. He left the state that morning. He didn't stay and talk to anybody.
RP at 129.
The jury convicted on first degree criminal trespass and returned a special finding of domestic violence. The jury acquitted on all other charges. The trial court sentenced Richardson to 90 days in jail and ordered him to pay $200 in restitution. This appeal followed.
I.
Richardson argues that the charge of first degree burglary did not adequately notify him that he might be convicted of first degree trespass. He reasons that the charge did not allege `knowingly,' and that `knowingly' is an essential element of first degree trespass. He does not argue that the evidence was insufficient to support first degree trespass. The State responds that first degree trespass is a lesser offense included within burglary; that the charge adequately alleged burglary; and thus that the charge adequately alleged first degree trespass also.
We agree with the State. `[A] court can give an otherwise appropriate lesser included offense instruction on request of either the State or the accused.' First degree criminal trespass is a lesser offense included within first degree burglary. Although the charge here did not allege that Richardson entered or remained `knowingly,' it did allege that he entered or remained `unlawfully' and `with intent to commit a crime . . . therein.' `When acting knowingly suffices to establish an element, such element is also established if a person acts intentionally.' By alleging that Richardson entered the house `unlawfully' and `with intent to commit a crime . . . therein,' the State adequately notified Richardson that he might be convicted for entering the house `knowingly' and `unlawfully.'
State v. Bandura, 85 Wn. App. 87, 96, 931 P.2d 174, review denied, 132 Wn.2d 1004 (1997).
See State v. Soto, 45 Wn. App. 839, 840-41, 727 P.2d 999 (1986) (first degree trespass is a lesser offense included within second degree burglary); State v. Mounsey, 31 Wn. App. 511, 517-18, 643 P.2d 892, review denied, 97 Wn.2d 1028 (1982) (first degree criminal trespass is a lesser offense included within first degree burglary).
CP at 5.
See also, State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991).
II.
Richardson argues that the trial court's reasonable doubt instruction was erroneous. He contends that it `failed to adequately instruct the jury to reach a subjective state of certainty before convicting' and that it `was a comment on the evidence.' Division One rejected this argument in State v. Castle, and we agree with that case. Nor, although Richardson urges to the contrary, do we think that the issue before the Castle court was materially different from the issue now before us. Based on Castle, we reject this argument.
Br. of Appellant at 14.
Br. of Appellant at 18.
86 Wn. App. 48, 58, 935 P.2d 656, review denied, 133 Wn.2d 1014 (1997).
III.
Richardson claims that the trial court erred by not defining the phrase, `enters or remains unlawfully.' He did not object to the absence of such a definition, nor did he propose one. Although the absence of an element is a matter of constitutional magnitude that can be raised for the first time on appeal, the absence of a definition is not. Accordingly, this claim fails.
State v. Scott, 110 Wn.2d 682, 691, 757 P.2d 492 (1988).
IV.
Richardson argues that the trial court erred by allowing evidence of prior problems between Richardson, Nicole, and Anthony. He acknowledges that he did not object to such evidence. He suggests that the trial court had a duty to enforce its own order in limine, to determine by a preponderance whether the prior events had occurred, to balance probative value against unfair prejudice on the record, to give a limiting instruction, and ultimately to exclude the evidence under ER 403 and 404(b), all without objection from him. The State responds that because Richardson did not object at trial, the issue (if any) has not been preserved for review.
But see State v. Sullivan, 69 Wn. App. 167, 171, 847 P.2d 953 , review denied, 122 Wn.2d 1002 (1993).
See State v. Kilgore, 147 Wn.2d 288, 294-95, 53 P.3d 974 (2002).
See State v. Jackson, 102 Wn.2d 689, 693-94, 689 P.2d 76 (1984).
See ER 105.
Errors involving ER 404(b) are not usually constitutional. An issue may not be raised for the first time on appeal unless it amounts to `manifest error affecting a constitutional right.' By failing to object, Richardson did not preserve for review the issues raised here.
See Jackson, 102 Wn.2d at 695-96 (applying non-constitutional harmless error standard to errors under ER 404(b)).
RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995); Scott, 110 Wn.2d at 687.
Moreover, even if we were to grant review, we would deny relief. Assuming without holding that the testimony complained of was erroneous, it was brief, vague, and so minor as to clearly be harmless.
V.
Richardson argues that during closing argument, the prosecutor commented on his failure to talk to police before trial and that reversal is therefore warranted. The State replies in part that Richardson did not object.
`A defendant's failure to object to a prosecuting attorney's improper remark constitutes a waiver of such error, unless the remark is deemed so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.' The defendant bears the burden of establishing that the prosecutor's comments were improper and prejudicial. Although a prosecutor may not comment on a defendant's post-arrest silence, he may sometimes comment on a defendant's pre-arrest, pre-Miranda silence. The remarks in issue here may not have been improper, but even if they were, any prejudice could easily have been rectified by objection and curative instruction.
State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
Doyle v. Ohio, 426 U.S. 610, 611, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Evans, 96 Wn.2d 1, 3, 633 P.2d 83 (1981).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Jenkins v. Anderson, 447 U.S. 231, 238-39, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980).
VI.
Richardson claims that his trial counsel was ineffective due to the omissions already discussed. Richardson has the burden of showing deficient performance and resulting prejudice. To show resulting prejudice, he must show a reasonable probability that, but for counsel's unprofessional errors, the trial's outcome would have differed. There is little possibility (much less probability) of that here, where the omissions complained are minor and insignificant when viewed in context.
McFarland, 127 Wn.2d at 334-35.
McFarland, 127 Wn.2d at 335; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
VII.
Richardson argues that the trial court erred by ordering him to pay $200 in restitution. He claims that the order has no factual basis because the State did not present any evidence at trial or sentencing that would support such an award. The State concedes error but says it was only `clerical' (and thus subject to correction). Failing to perceive how the lack of a factual basis can be `clerical,' we direct that the restitution order be stricken on remand.
Affirmed, except that the restitution order is reversed.
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.
HOUGHTON, J. and HUNT, J., concur.