Opinion
66634-7-I
06-11-2012
STATE OF WASHINGTON, Respondent, v. DAMON RASHAURD SMITH, Appellant.
UNPUBLISHED OPINION
Lau, J.
Damon Smith appeals his convictions for attempting to elude, third degree assault, and resisting arrest. He argues that (1) insufficient evidence supports his resisting arrest conviction, (2) the convictions for third degree assault and resisting arrest violate double jeopardy, (3) the trial court erred in allowing a state trooper to testify about Smith's obscene gestures and comments, and (4) the court erroneously imposed 120 days of confinement for his resisting arrest conviction. Finding no error, we affirm the convictions but accept the State's concession of error regarding Smith's sentence for resisting arrest and remand for resentencing to conform with RCW 9A.20.021(3).
FACTS
On May 28, 2010, Trooper Michael Stracke was patrolling Interstate 5 in Seattle. Stracke was in full uniform and drove a traditionally marked state patrol car. Around 11 p.m., he noticed a light-colored Thunderbird traveling northbound at high speed. He watched as the Thunderbird swerved and nearly hit a semi truck. Stracke pursued the Thunderbird at speeds over 90 miles per hour. He pulled within two car-lengths of the Thunderbird and activated his emergency lights. The Thunderbird slowed and exited at Northgate Way but failed to stop. Stracke followed it onto First Avenue Northeast and through the Northgate Mall parking lot with his emergency lights and siren on. He called for backup when the Thunderbird failed to stop. He also used his loudspeaker to order the driver to pull over. The Thunderbird failed to pull over, ran a stop sign, and accelerated out of the parking lot.
The Thunderbird continued north on First Avenue Northeast, accelerating to 40 to 50 miles per hour in a 35 mile per hour zone. Stracke testified that at one point the Thunderbird went around a vehicle stopped at a traffic signal, cut in front of it, and ran through the traffic signal without stopping. Stracke continued to pursue with his lights and siren on. The Thunderbird continued on 117th Street, ran through a stop sign and a roundabout at high speed, and went into a ditch. The driver regained control, ran another stop sign, and turned onto Meridian Avenue. The Thunderbird stopped on Meridian. Stracke testified that a subsequent investigation revealed its fuel tank was empty.
Trooper Dominic Ledesma had responded to Stracke's call for backup and caught up when the Thunderbird stopped. The driver, Damon Smith, exited the Thunderbird with his hands up. Ledesma and Stracke got out of their cars, drew their guns, and pointed them at Smith. Smith nonchalantly asked what was wrong, and the troopers ordered him to get on the ground. Smith failed to comply. Stracke holstered his gun and approached Smith while Ledesma covered him. Stracke attempted a "control tactic" by grabbing and locking Smith's arm. Smith resisted by pulling his arm away and slipping out of his jacket to free himself from Stracke's grasp. Smith then pushed Stracke in the face and raised his right fist to strike Stracke. Stracke disengaged as Smith swung at him.
At no time did the troopers explicitly tell Smith he was under arrest.
Smith then ran about 15 to 20 feet across the street and turned to face the troopers again. Both troopers used their stun guns to subdue him. Ledesma handcuffed Smith, and Stracke advised him of his Miranda rights and attempted to remove the stun guns' probes from Smith's skin. Smith continued to struggle with the troopers as they handcuffed him and removed the probes. Stracke observed signs that Smith was intoxicated and opined that Smith was under the influence of alcohol. Smith refused to answer Stracke's questions or consent to a breath test.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
After a medical evaluation at Harborview Medical Center, Smith was booked into jail. While Stracke was writing an incident report at the jail, he overheard Smith tell other people in the holding cell that he intentionally swung at Stracke. Stracke also testified that throughout his encounter with Smith, Smith laughed, joked, and made obscene gestures in an attempt to offend him.
During pretrial motions the gestures were described as "simulating masturbation" and calling jail staff "sweetie." RP (Dec. 15, 2010) at 71. The court granted Smith's motion in limine to exclude the evidence, but the court's ruling was unclear as to whether it excluded any reference to Smith's comments and gestures or merely excluded what the specific gestures and comments were. Smith objected when Stracke testified about the "obscene gestures and comments, " and a resulting sidebar was not transcribed for the record. RP (Dec. 20, 2010) at 13. There was no motion to strike, no motion for mistrial, and no further objection when Stracke referenced the gestures and comments again later in his testimony.
The State charged Smith with attempting to elude a pursuing police vehicle, third degree assault, driving while under the influence (DUI), obstructing a law enforcement officer, and resisting arrest. The jury found Smith guilty of attempting to elude, third degree assault, and resisting arrest and acquitted him of DUI and obstructing. The court imposed a standard range sentence of four months' confinement for attempting to elude and third degree assault. The court imposed a one-year suspended sentence with four months' confinement for resisting arrest. All terms of confinement were to be served concurrently. Smith appeals.
ANALYSIS
Sufficiency of the Evidence
Smith argues that the evidence was insufficient to find that he intentionally resisted arrest. Specifically, he argues that because the troopers did not announce that they were arresting him, the State failed to prove he knew he was under arrest. The State counters that ample evidence shows Smith knew he was being arrested and intentionally resisted.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Moles, 130 Wn.App. 461, 465, 123 P.3d 132 (2005). We defer to the trier of fact on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Fiser, 99 Wn.App. 714, 719, 995 P.2d 107 (2000).
A person is guilty of resisting arrest if he "intentionally prevents or attempts to prevent a peace officer from lawfully arresting him." RCW 9A.76.040. A person acts intentionally if he "acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a). The accused's specific criminal intent may be inferred from his conduct "where it is plainly indicated as a matter of logical probability." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). "'One may resist arrest by various types of conduct.'" State v. Ware, 111 Wn.App. 738, 745, 46 P.3d 280 (2002) (quoting State v. Williams, 29 Wn.App. 86, 92, 627 P.2d 581 (1981)).
Relying on State v. Bandy, 164 Wash. 216, 2 P.2d 748 (1931), Smith argues that "it was incumbent upon the trooper to inform Mr. Smith he was under arrest." Appellant's Br. at 10. Bandy is inapposite. In that case, our Supreme Court overturned the defendant's conviction for obstructing or interfering with an officer in the performance of his duty. Bandy, 164 Wash. at 221. The court emphasized that "it is essential that accused have knowledge that the person obstructed is an officer; consequently it is incumbent on an officer, seeking to make an arrest, to disclose his official character, if not known to the offender." Bandy, 164 Wash. at 219 (emphasis added). In Bandy, no evidence indicated that the officers wore badges or any other clothing to signify they were officers, and under the circumstances, nothing else indicated to the defendant that the persons obstructed were officers. Bandy, 164 Wn.2d at 219-221. The court thus concluded that insufficient evidence supported the conviction. Bandy, 164 Wn.2d at 221.
In contrast, here, the evidence was sufficient to convince a rational trier of fact that Smith knew he was under arrest and intended to resist. Stracke pursued Smith in a marked police car with its lights and siren activated and used his loudspeaker to order Smith to pull over. Smith fled at high speed, ran several traffic signals, and stopped only when his car ran out of gas. When he exited the Thunderbird, he immediately put his hands in the air-thus, his behavior indicates he knew he was being arrested. The troopers were both in uniform and drew their guns. They pointed their guns at Smith and ordered him to get on the ground. Stracke attempted to gain physical control of Smith, who resisted and ran away. Smith continued struggling when the troopers handcuffed him and attempted to remove the stun gun probes. The facts support the reasonable inference that Smith knew the troopers were acting in their official capacity and he intentionally resisted arrest.
Double Jeopardy
Smith argues that his third degree assault and resisting arrest convictions violate double jeopardy. The State counters that the subsection of third degree assault under which Smith was charged is different in law and fact from resisting arrest.
The double jeopardy clause of the Fifth Amendment to the United States Constitution and article I, section 9 of the Washington State Constitution protect a defendant against multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 775, 888 P.2d 155 (1995). State v. Freeman, 153 Wn.2d 765, 771-73, 108 P.3d 753 (2005), sets forth the framework for the double jeopardy analysis. Freeman requires us to first look to whether there is either express or implicit legislative intent authorizing cumulative punishment. Subject to constitutional restraints, the legislature has the power to define crimes and assign punishment. Calle, 125 Wn.2d at 776. If the intent is clear and the legislature authorizes "cumulative punishments" under two different statutes, "then double jeopardy is not offended" and the court's double jeopardy analysis is at an end. Freeman, 153 Wn.2d at 771.
If legislative intent is unclear, we proceed to the second step of the double jeopardy analysis-the "same elements" test under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test asks whether the offenses are the same in law and fact. Calle, 125 Wn.2d at 777. If each crime contains an element the other does not, we presume the crimes are not the same for purposes of double jeopardy. Blockburger, 284 U.S. at 304; Calle, 125 Wn.2d at 777.
Smith argues that resisting arrest is a lesser included offense of third degree assault and, thus, the two crimes are the same in law and fact. We disagree. As discussed above, resisting arrest requires proof that a person intentionally prevented or attempted to prevent a peace officer from lawfully arresting him. RCW 9A.76.040. Smith was charged with third degree assault under RCW 9A.36.031(1)(g). Under that subsection, a person is guilty of third degree assault if, under circumstances not amounting to first or second degree assault, he "[a]ssaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault." RCW 9A.36.031(1)(g). Third degree assault as charged here does not require the State to prove the defendant had specific intent to resist arrest. And resisting arrest does not require proof of an assault. Because each crime requires proof independent of that required for the other, the two crimes are not the same in law for purposes of double jeopardy. Blockburger, 284 U.S. at 304; Calle, 125 Wn.2d at 777.
Smith cites State v. Godsey, 131 Wn.App. 278, 127 P.3d 11 (2006) for the proposition that the elements of third degree assault and resisting arrest are the same because resisting arrest is a lesser included offense of third degree assault. But Godsey compared a different subsection of the third degree assault statute-RCW 9A.36.031(1)(a)-to resisting arrest. Godsey, 131 Wn.App. at 289. Third degree assault under that subsection required the State to prove that the defendant, "'[w]ith intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension of himself or another person, assault[ed] another.'" Godsey, 131 Wn.App. at 289 (alterations in original) (quoting RCW 9A.36.031(1)(a)). Smith was charged under a different subsection-RCW 9A.36.031(1)(g)-and Godsey's holding that resisting arrest is a lesser included offense of subsection (1)(a) does not apply here.
Smith also argues the prosecutor relied on the same facts to support both convictions. This argument fails for two reasons. First, charged offenses may be identical in fact-i.e, arise from the same act-but be considered different offenses for double jeopardy purposes because they are not identical in law. Calle, 125 Wn.2d at 778. As discussed above, each offense charged here includes an element not included in the other and, thus, the offenses are different for double jeopardy purposes.
Second, while some of the evidence overlapped, we conclude the prosecutor treated (1) Smith's failure to comply with the troopers' instructions and act of fleeing from the troopers and (2) Smith's actions in pushing and swinging at Stracke as separate offenses and argued that theory of the case to the jury. See Report of Proceedings (RP) (Dec. 20, 2010) at 73-74 (arguing Smith assaulted Stracke when he pushed Stracke in the face and swung at him); RP (Dec. 20, 2010) at 74-75 (arguing Smith resisted arrest when he exited his vehicle knowing the troopers were pointing guns at him and telling him to get on the ground, failed to comply, and ran away from the troopers). The convictions for third degree assault and resisting arrest do not violate double jeopardy.
Evidence of Obscene Comments and Gestures
Smith argues that the trial court erred in permitting the State to elicit testimony that he made obscene gestures and comments throughout his encounter with Stracke. The State counters that the evidence was relevant to the charged crimes, Smith failed to preserve error, and any error was harmless.
Smith analyzes this claimed error under ER 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."This list of other purposes for which such evidence of other crimes, wrongs, or acts may be introduced is not exclusive." State v. Baker, 162 Wn.App. 468, 473, 259 P.3d 270, review denied, 173 Wn.2d 1004 (2011).
A trial court must state its reasoning on the record when admitting ER 404(b) evidence. State v. Jackson, 102 Wn.2d 689, 693, 689 P.2d 76 (1984). "To justify the admission of prior acts under ER 404(b), there must be a showing that (1) the evidence serves a legitimate purpose, (2) the evidence is relevant to prove an element of the crime charged, and (3) the probative value outweighs its prejudicial effect." State v. Magers, 164 Wn.2d 174, 184, 189 P.3d 126 (2008). We review a trial court's decision to admit evidence under ER 404(b) for abuse of discretion. Baker, 162 Wn.App. at 473. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Dixon, 159 Wn.2d 65, 75-76, 147 P.3d 991 (2006).
Smith moved in limine to exclude evidence of other misconduct, specifically that he allegedly called jail staff "sweetie" and simulated masturbation while in the jail holding cell. The court concluded the evidence was more prejudicial than probative and excluded it. During trial, Trooper Stracke testified that Smith made "obscene gestures and comments" in the holding cell. RP (Dec. 20, 2010) at 13. Smith initially objected to this testimony and requested a sidebar. After the sidebar, Stracke referenced Smith's obscene comments and gestures several more times without objection from Smith.
Smith contends the admission of Stracke's testimony violated ER 404(b) and denied him a fair trial. But a transcript of the sidebar does not appear in the record on appeal. We cannot review a ruling in the absence of a record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Here the record does not reflect the trial court's ruling or Smith's arguments. Smith failed to create a sufficient record for review.
Further, Smith waived any challenge by failing to object to Stracke's subsequent testimony concerning obscene comments and gestures. Smith did not request that the testimony be stricken or move for a mistrial. "Without an objection, an evidentiary error is not preserved for appeal."
Community Custody
Smith argues, and the State concedes, that the trial court erroneously imposed 120 days' confinement for his resisting arrest conviction. The parties agree that resisting arrest is a simple misdemeanor under RCW 9A.76.040(2), punishable by a maximum of 90 days' confinement under RCW 9A.20.021(3).
The trial court gave Smith a 12-month suspended sentence for resisting arrest, but suspended the sentence on the condition that he serve 4 months in jail.
CONCLUSION
Because (1) sufficient evidence supports Smith's resisting arrest conviction, (2) his convictions for resisting arrest and third degree assault do not violate double jeopardy, and (3) Smith failed to create a sufficient record for review regarding admission of Trooper Stracke's "obscene gestures and comments" testimony, we affirm his convictions but remand for resentencing on the resisting arrest conviction to conform with RCW 9A.20.021(3).
State v. Davis, 141 Wn.2d 798, 850, 10 P.3d 977 (2000).