Opinion
No. 64404-1-I.
Filed: May 2, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-1-02404-5, Cheryl B. Carey, J., entered October 26, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Grosse, J., concurred in by Cox and Schindler, JJ.
The decision to bifurcate a trial is within the discretion of the trial court and will not be overturned absent an abuse of discretion. Here, the trial court denied defendant's motion to conduct a separate proceeding on aggravating circumstances. Because those circumstances formed the elements of two of the underlying crimes with which the defendant was charged, the trial court did not abuse its discretion in denying the motion to bifurcate.
We affirm the conviction. However, the special verdict instruction improperly required unanimity. Hence, we vacate Rupe's sentence enhancement and remand for further proceedings.
FACTS
Bailey Giard began dating Jeremiah Rupe in December 2004, when she was 17 years old. At the time Rupe, 24, was living with his girlfriend Adrienne Graham in the same complex as Bailey and her mother. In June 2005, Bailey moved in with Rupe and Graham. Bailey testified that Rupe had strangled her on multiple occasions. Graham also testified that she had witnessed Rupe strangling Bailey. Bailey testified to multiple times that Rupe had hit her when she was pregnant. When Bailey considered leaving Rupe, he threatened to kill her.
We refer to the parties with the last name of "Giard" by their first names for clarity.
In January 2009, Bailey was living at Stacy Campbell and Thomas Somask's apartment. In February, Rupe also moved into the apartment which created a tense atmosphere because Bailey was trying to end the relationship. On February 9, 2009, Rupe and Bailey were arguing about their relationship while walking to her mother's residence. Bailey, afraid, called her sister Nicole. Rupe hit Bailey in the face, knocking her to the ground. Nicole heard Bailey telling Rupe not to follow her, be around her, or touch her. Nicole also heard screaming. Nicole called their mother, Gina, who went looking for Bailey in her car. Bailey was crying as she got into the backseat of Gina's car. Rupe told Gina that he was sorry and he wanted to change and make things right. Gina let Rupe into the car and drove them both back to her home.
Upset that her mother had permitted Rupe back into her home, Bailey called a friend, Brandon Baumann, and asked for a ride to Campbell and Somsak's apartment. Baumann agreed to pick her up at a gas station. Bailey's mother gave her a ride, but Rupe followed them and forced his way into Gina's car. Both Bailey and her mother asked him to leave. Rupe refused and claimed he was going wherever Bailey went. When they arrived at the gas station, Bailey sat in the front passenger seat of Bauman's car and Rupe got into the backseat. Verbally abusing Bailey, Rupe refused to leave the car.
As Baumann neared Campbell and Somsak's apartment, Rupe told him to pull over. Because Bauman was worried about Rupe's intentions, he pulled into a public spot, a gas station across from the friends' residence. Baumann went into the minimart.
Rupe and Bailey argued and Rupe strangled her. When Bailey went limp, he released her and Bailey ran out of the car. Rupe caught up with her, put her in a chokehold, and dragged her back to the car telling her she had "really fucked up" this time. Bailey fought and screamed as she was being dragged back to the car.
Campbell witnessed Bailey being dragged back to the car and told Somsak to go get Bailey. When Somsak arrived he saw Rupe forcing Bailey into the car and told him to let her go. Somsak then drove Bailey back to his apartment. Campbell called 911.
Meanwhile Rupe got back into Baumann's car and told him to take him to a friend's house in Des Moines. During the car ride, Rupe admitted that he had choked Bailey and remarked that he could not believe that he had done it. Shortly after arriving at his friend's house in Des Moines, the police arrived and arrested Rupe.
Rupe was charged with second degree assault, unlawful imprisonment, felony harassment, and fourth degree assault. The State also filed a pattern of abuse aggravating circumstances on the second degree assault and unlawful imprisonment counts. A jury acquitted Rupe of felony harassment, but convicted him on all other counts and found the aggravating circumstances.
Rupe appeals alleging error in various trial court rulings, constitutional issues, and instructional error.
ANALYSIS
Bifurcation
Rupe first argues that the trial court erred in not conducting a separate proceeding for the aggravating circumstances. Rupe was originally charged with one count of second degree assault and one count of unlawful imprisonment, both domestic violence charges. Rupe changed his mind about pleading guilty. At the omnibus hearing on August 28, 2009, the State notified both the court and defense counsel that it planned to amend the information to add felony harassment and a pattern of abuse aggravating factor.
On September 24, 2009, the court accepted the State's motion to amend to include the aggravating factor for history of domestic violence for counts I and II as well as count III with fourth degree assault. Defense counsel moved to bifurcate the trial, arguing that Rupe's prior bad acts were not relevant to the charges. The State argued judicial efficiency, asserting that a number of witnesses, including the victim, would have to return to retry the case. The court reserved its ruling on bifurcation.
On September 29, 2009, the State moved to amend the information to add a count of felony harassment. Defense counsel acknowledged that she had received the State's notice of its intent to add the felony harassment charge at the omnibus hearing, but objected to the State being able to amend the charges a week after the bifurcation issue arose. The court permitted the amendment. After hearing argument on the bifurcation issue, the court denied defense counsel's motion because it found the evidence relevant to both the felony harassment and unlawful imprisonment charges. The court also found that the probative value of the evidence outweighed any prejudicial effect.
A trial court's decision on bifurcation is reviewed for abuse of discretion. "A court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds." Under the circumstances here, the trial court's decision was reasonable. Rupe argues that, under RCW 9.94A.537(4), the trial court erred in failing to conduct a separate proceeding regarding the aggravating circumstances evidence. RCW 9.94A.537(4) provides:
State v. Monschke, 133 Wn. App. 313, 335, 135 P.3d 966 (2006).
Monschke, 133 Wn. App. at 335 (citing State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997)).
Evidence regarding any facts supporting aggravating circumstances under RCW 9.94A.535(3)(a) through (y) shall be presented to the jury during the trial of the alleged crime, unless the jury has been impaneled solely for resentencing, or unless the state alleges the aggravating circumstances listed in RCW 9.94A.535(3)(e)(iv), (h)(i), (o), or (t). If one of these aggravating circumstances is alleged, the trial court may conduct a separate proceeding if the evidence supporting the aggravating fact is not part of the res geste of the charged crime, if the evidence is not otherwise admissible in trial of the charged crime, and if the court finds that the probative value of the evidence to the aggravated fact is substantially outweighed by its prejudicial effect on the jury's ability to determine guilt or innocence for the underlying crime.
(Emphasis added.)
Thus, the statute contemplates that the evidence of the substantive crime will be submitted to the jury at the same time as the aggravating circumstances. Further, the statute's use of the word "may" clearly indicates that it is within the trial court's discretion to bifurcate. Here, evidence of Rupe's threat to kill Bailey if she left him, along with his continuous use of physical violence against her, was relevant to both the unlawful imprisonment and the felony harassment charges.
Rupe does not dispute that the evidence of previous acts of violence was relevant to the felony harassment charge. Rather, he argues that he should not have been charged with the felony harassment because there was insufficient evidence. He did not make this argument below. In his pretrial motion, Rupe argued that the State added the felony harassment charge only after defense counsel filed her motion for bifurcation. In point of fact, the State had given notice of its intent to so charge at the initial omnibus hearing, although it did not amend the information until after the bifurcation motion. Even if the motion for bifurcation prompted the State to charge Rupe with felony harassment, this does not make the charge any less provable. The jury's failure to find Rupe guilty of felony harassment does not equate to insufficient evidence to charge him.
State v. Barragan, 102 Wn. App. 754, 759, 9 P.3d 942 (2000).
Rupe is essentially arguing a Knapstad motion on appeal without having brought a Knapstad motion to the trial court. Under Knapstad, a trial court may entertain a pretrial motion to dismiss if there are no disputed facts and the undisputed facts are insufficient to support a finding of guilt. Further, under Knapstad, the court must consider the evidence and the reasonable inferences in the light most favorable to the State when determining whether to grant a motion for dismissal. "[A]fter proceeding to trial, a defendant cannot appeal the denial of a Knapstad motion, which is a pretrial challenge to the sufficiency of the evidence." It follows that a defendant cannot on appeal assert a pretrial challenge to the sufficiency of the evidence. The fact that jury did not find Rupe guilty of felony harassment is not the same as stating that the State did not have a prima facie case or sufficient evidence. In any event, Rupe's prior acts of domestic violence during which he had threatened to kill Bailey were admissible to show the element of reasonable fear caused by the threats. The trial court did not abuse its discretion in not bifurcating the proceedings.
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
Knapstad, 107 Wn.2d at 356.
State v. Cannon, 120 Wn. App. 86, 90, 84 P.3d 283 (2004).
Unanimity Instruction
Rupe argues that the trial court gave an erroneous instruction on the aggravating circumstances. The court instructed the jury to use the special verdict form if it found Rupe guilty of second degree assault, unlawful imprisonment, or harassment. The court further instructed the jury that it was required to be unanimous in its answer. The instruction reads:
Because this is a criminal case, all twelve of you must agree in order to answer the special verdict forms. In order to answer the special verdict forms "yes," you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer "no."
This court in State v Ryan, citing the Supreme Court's decision in State v. Bashaw, held a nearly identical instruction to be manifest constitutional error. Because an error may be raised for the first time on appeal if it is a manifest error affecting a constitutional right, we reject the State's argument that Rupe failed to preserve this issue for review.
No. 64726-1-I, 2011 WL 1239796 (Wash. April 4, 2011).
169 Wn.2d 133, 147, 234 P.3d 195 (2010) (alteration in original) (internal citations omitted). The Bashaw court held a similar instruction erroneous stating that "[t]hough unanimity is required to find the presence of a special finding increasing the maximum penalty, it is not required to find the absence of such a special finding."
Ryan, No. 64726-1-I, 2011 WL 1239796, at *2.
The State also argues that any error was harmless. But as we noted in Ryan, Bashaw is also determinative in this regard:
Ryan, No. 64726-1-I, 2011 WL 1239796, at *2.
The error here was the procedure by which unanimity would be inappropriately achieved. . . .
The result of the flawed deliberative process tells us little about what result the jury would have reached had it been given a correct instruction. . . . We therefore cannot conclude beyond a reasonable doubt that the jury instruction error was harmless.
Bashaw, 169 Wn.2d at 147-48 (holding that the error was not harmless even though the trial court polled the jurors and found its verdict to be unanimous).
The trial court's instruction here was error. Like in Ryan, we are constrained that under Bashaw, the error is of constitutional magnitude and not harmless.
Due Process
Rupe next argues that the statute permitting the imposition of an exceptional sentence is unconstitutionally vague under the due process clause. RCW 9.94A.535(3)(h)(i) permits a court to impose an exceptional sentence if the jury determines that the offense involved domestic violence and "[t]he offense was part of an ongoing pattern of psychological, physical, or sexual abuse of a victim or multiple victims manifested by multiple incidents over a prolonged period of time." Rupe argues that the pattern of abuse aggravating circumstance is unconstitutionally vague under the due process clause. But, in State v. Baldwin, the Supreme Court held that the due process considerations that underlie the void-for-vagueness doctrine have no application in the context of sentencing guidelines:
150 Wn.2d 448, 459, 78 P.3d 1005 (2003).
The sentencing guideline statutes challenged in this case do not define conduct nor do they allow for arbitrary arrest and criminal prosecution by the State. Sentencing guidelines do not inform the public of the penalties attached to criminal conduct nor do they vary the statutory maximum and minimum penalties assigned to illegal conduct by the legislature. A citizen reading the guideline statutes will not be forced to guess at the potential consequences that might befall one who engages in prohibited conduct because the guidelines do not set penalties. Thus, the due process considerations that underlie the void-for-vagueness doctrine have no application in the context of sentencing guidelines.
Baldwin, 150 Wn.2d at 459 (internal citation omitted); see also State v Phillips, ___ Wn. App. ___, 246 P.3d 589 (2011) (holding that sentencing directives do not proscribe conduct so due process vagueness test does not apply).
Accordingly, there is no merit to Rupe's argument.
Sufficiency of Evidence
Rupe next argues that there was insufficient evidence to support the aggravating circumstances finding and the unlawful imprisonment conviction.
The test for reviewing a defendant's challenge to the sufficiency of evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).
In order to establish the aggravating circumstances the State was required to show that the offenses were part of an ongoing pattern of psychological, physical, or sexual abuse of Bailey "manifested by multiple incidents over a prolonged period of time." The evidence presented at trial clearly established that Rupe threatened, berated, strangled, and assaulted Bailey for approximately four years. The State presented testimony from both the victim and various witnesses about the abusive course of conduct over the years. There was sufficient testimony to support the jury's finding aggravating circumstances.
Unlawful imprisonment required the State to show that Rupe knowingly restrained Bailey. RCW 9A.40.010 defines restrain as "restrict[ing] a person's movements without consent and without legal authority in a manner which interferes substantially with [her] liberty." There is no consent where physical force, intimidation, or deception is used. Here, Rupe physically had Bailey in a headlock as he dragged her back to the car. Additionally, witnesses saw him trying to push her into the car. The evidence is more than sufficient to establish unlawful imprisonment.
Motion for New Trial
Lastly, Rupe argues that the trial erred in not granting his motion for a new trial. Rupe moved for a mistrial based on testimony adduced during the prosecutor's cross-examination of Rupe's mother about telephone calls she received from Rupe while he was in jail. Rupe argued that the jury should not have been informed that he was in jail. The court noted that Rupe's mother also mentioned that he had been in custody for three months. The court offered to give a limiting instruction. Defense counsel chose not to offer such an instruction.
A trial court's denial of a motion for a mistrial is reviewed under an abuse of discretion standard and should only be granted where a "defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly." Here, the State used the fact that the phone call was recorded to elicit on cross-examination that Rupe had told his mother that "he screwed up" and had placed Bailey in a headlock.
State v. Lewis, 130 Wn.2d 700, 927 P.2d 235 (1996).
The one time reference to phone calls made from jail did not violate Rupe's right to a fair and impartial trial. The fact that the jury knew of Rupe's custodial status in and of itself is insufficient to warrant a mistrial. Rupe's reliance on State v. Gonzalez is misplaced. There, the trial court informed the jury that the defendant was in jail because he could not post bail, was being transported in restraints, and would be under guard in the courtroom. The facts here are simply not that egregious. In State v. Mullin-Coston, this court held that testimony regarding a defendant's custodial status may present some risk of prejudice, but it does not rise to the level as that incurred by a defendant shackled to a chair in a courtroom.
129 Wn. App. 895, 120 P.3d 645 (2005).
Gonzalez, 129 Wn. App. at 899-90.
115 Wn. App. 679, 692, 64 P.3d 40 (2003).
Any prejudice that may have resulted from the jury's knowledge of Rupe's custodial status is unlikely to have impacted the outcome of his trial. The trial court's denial of Rupe's motion for a mistrial was not an abuse of its discretion.
In conclusion, we affirm Rupe's convictions but because the special verdict form improperly required unanimity for a negative answer, we vacate Rupe's sentence enhancement and remand for further proceedings.
WE CONCUR: