Opinion
No. 26220-7-II
Filed: July 2, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County, No. 99-1-04723-2, Hon. Stephanie A. Arend, July 14, 2000, Judgment or order under review.
Counsel for Appellant(s), Linda J. King, Attorney At Law, P.O. Box 881008, Steilacoom, WA 98388-1008.
Patricia A. Pethick, Attorney At Law, P.O. Box 111952, Tacoma, WA 98411-1952.
Counsel for Respondent(s), Barbara L. Corey-Boulet, Pierce Co. Deputy Pros. Atty., County City Bldg, 930 Tacoma Ave S, Tacoma, WA 98402-2177.
Michael Rhem and Kimothy Wynn each appeal convictions for two counts of first degree assault and one count of the unlawful possession of a firearm. Because the accomplice liability instructions were defective and this error was not harmless, we reverse the assault convictions. And because the unlawful firearm possession `to convict' instructions also were defective and, as again this error was not harmless, we reverse the unlawful possession jury convictions. But as the evidence was sufficient to convict, we remand for a new trial.
FACTS
The assault convictions challenged here arose out of an alleged gang-related shooting that occurred in an alley behind Ash Street in Tacoma on the night of August 21, 1999. Michael Rollins and Kimberly Matthews, the assault victims, were working on Rollins's car when multiple shots were fired in their direction. Rollins saw two men, including Rhem, running away from the scene. Based on this incidence, the State charged Rhem and Wynn each with two counts of first degree assault (counts IV and V) and one count of drive-by shooting (count VI) under an accomplice liability theory.
In the same information, the State charged Rhem with two counts (counts VII and VIII) and Wynn with one count (count IX) of illegally possessing a firearm. And based on events that preceded the nighttime shooting, the State charged Rhem with three other counts of first degree assault (counts I, II, and III).
The State's theory of the case was that the shootings were in retaliation for Rollins's failure to come to the aid of Rhem and another young man, both associated with the Hilltop Crips, when they fought with two Blood gang members, Rodney Hebert and Chris Meza. This was on July 21, 1999, and following the fight, Rhem made it known that he was angry with Rollins, who also was a Hilltop Crip.
Following an ER 404(b) hearing, the trial court held that evidence of this fight was admissible as proof of motive but only against Rhem. The court gave a limiting instruction directing the jury not to consider this evidence against Wynn.
On the afternoon of August 21, Hebert, Rollins, and Hebert's young daughter were driving near 23rd and Wilkeson Streets in Tacoma when, according to Rollins, Rhem shot at Hebert's car. Rhem later told two other Hilltop Crips, Randall Henderson and Digno DeJesus, about the shooting.
After the shooting, Hebert was angry and went looking for Rhem, taking his .40 caliber semi-automatic handgun with him. At about 9:30 p.m., Hebert fired into a crowd attending a barbecue at Wynn's aunt's house. Wynn told a friend that he thought Rollins and Hebert were the shooters and he said that he had shot back.
The shooting in the alley occurred later that same night. Rollins saw three people, one of whom was Rhem, walking toward his car. Rollins thought the men were going to steal his car but instead they turned around and left in a blue Caprice. Several minutes later, Rollins and Matthews heard shots and Rollins saw two men, including Rhem, running from the scene. Rhem again told Henderson and DeJesus about this shooting. Wynn, who was present, not only did not contradict Rhem but on occasion, he would fill in the blanks or finish Rhem's statements. Police recovered nine .40 caliber and six 9 mm casings from the area of Wynn's aunt's house. They also recovered a number of .45 caliber and 9 mm casings from the Ash Street scene. Forensic reports indicated that one of the 9 mm casings from Wynn's aunt's house and several of the 9 mm casings from the Ash Street shooting were fired from the same gun. Rhem pleaded guilty to count VIII, a first degree unlawful possession of a firearm charge, and the State tried the remaining eight counts against Rhem and Wynn in a consolidated proceeding. The jury acquitted Rhem on counts I, II, and III, which arose out of the shooting at Hebert's vehicle on the afternoon of August 21. It also acquitted both Rhem and Wynn of count VI, the drive-by-shooting charge.
The jury convicted both men of counts IV and V, the first degree assaults of Rollins and Matthews in the alley behind Ash Street. It also convicted Rhem and Wynn of the two unlawful firearm charges, counts VII and IX. The trial court sentenced Wynn and Rhem to standard range sentences of 459 months and 561 months respectively.
DISCUSSION I. Joint Issues A. Accomplice Liability Instructions
The State concedes that the accomplice liability instructions, which supported the assault convictions, were defective because they did not require the jury to find that the defendants aided another in planning or committing the specific crime charged. See RCW 9A.08.020; State v. Roberts, 142 Wn.2d 471, 511, 513, 14 P.3d 713 (2000); State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000). It contends, however, that the error was harmless because it neither argued nor introduced evidence that the defendants knowingly participated in any crime other than the charged crime of assault.
Instruction 18 provided:
A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of the crime if, with knowledge that it will promote or facilitate the commission of a crime, he either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing a crime.
The word `aid' means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
Clerk's Papers (Rhem) (CP) at 181. Instruction 24 further provided: `If you are convinced that both defendants participated in a crime or crimes and that a crime or crimes have been proved beyond a reasonable doubt, you need not determine which defendant was an accomplice and which was a principal.' CP (Rhem) at 187.
The accomplice liability statute provides, in part:
(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it; or
(b) His conduct is expressly declared by law to establish his complicity.
RCW 9A.08.020.
It is reversible error to instruct the jury in a way that relieves the State of its burden of proving beyond a reasonable doubt that the defendant knew he facilitated the charged crime. See Cronin, 142 Wn.2d at 580. But see State v. Stein, 144 Wn.2d 236, 245-48, 27 P.3d 184 (2001) (employing harmless error analysis to instructional error involving accomplice liability and Pinkerton doctrine); State v. Swenson, 104 Wn. App. 744, 762, 9 P.3d 933 (2000) (applying harmless error analysis to alleged accomplice liability instructional error). But a constitutional error may be harmless if `it appears `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).
In Cronin, a consolidated case, the court found in one case that the accomplice liability instructional error was not harmless because the State specifically argued that the jury could convict the defendant if it found he facilitated the commission of any crime. 142 Wn.2d at 572-73, 580-81.
The Cronin court also reversed the other case, concluding that the error allowed the jury to convict the defendant of first degree premeditated murder if it found he had facilitated the commission of `a crime.' 142 Wn.2d 577, 582.
Here, the trial court instructed the jury as follows:
To convict defendant Rhem of the crime of Assault in the First Degree as charged in Count IV, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 21st day of August, 1999, defendant Rhem or an accomplice intentionally assaulted Michael Rollins;
(2) That the assault was committed with a firearm;
(3) That defendant Rhem or an accomplice acted with intent to inflict great bodily harm; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP (Rhem) at 183. The court gave a similar instruction on the assault charges against Wynn.
In describing Rollins's testimony in closing argument, the State said that Rollins saw Rhem and two other people whom he thought were going to steal his car. The State repeated this fact a short time later in describing Rhem's and Wynn's statements that '[t]hey went to steal Casper's [Rollins's] car.' 7 Report of Proceedings (RP) at 930. See also 7 RP at 931 (`Michael Rhem sees [sic] they're going to steal the car, but they don't get to do it.'). The State also argued:
You have an instruction in your packet about accomplice liability. I'm not going to spend a lot of time with that, but in a nutshell the Legislature said we do not want people getting together and committing crimes. Don't do it. If you participate at all, you participate to the full extent.
Three guns. Latron Swearington, Kimothy Wynn, Michael Rhem. There was another person maybe there named Johnny Bopp. Maybe Johnny Bopp is one of the triggers; maybe he's not. But they're all there together. They're all participating. It's as if each one of them pulled the trigger 15 times instead of the different times that they actually did it.
7 RP at 933 (emphasis added).
The testimony of Rollins and Matthews that Rollins thought the three men were trying to steal his car, and the State's multiple references to that testimony in closing, allowed the jury under the court's erroneous accomplice liability instructions to find that the defendants promoted or facilitated car theft to support the jury's convictions for assault. But the law requires that the jury base accomplice liability on involvement with the specific crime charged. Roberts, 142 Wn.2d at 510-11, 513. Thus, we cannot say beyond a reasonable doubt that the erroneous instructions did not contribute to the verdict and, consequently, we must reverse Rhem's and Wynn's assault convictions. See Chapman, 386 U.S. at 24.
B. Unlawful Possession of a Firearm — `Knowledge' Element
Both Rhem and Wynn challenge their convictions for the unlawful possession of a firearm, asserting that the second amended information and the `to convict' instructions were defective because they failed to allege the essential element of knowledge. Rhem also challenges his guilty plea to count VIII on the same basis.
In August 2000, the Washington Supreme Court held that knowledge is an essential element of the crime of unlawful possession of a firearm, thereby reversing a court of appeals decision that had reached the opposite conclusion. State v. Anderson, 141 Wn.2d 357, 359, 5 P.3d 1247 (2000); State v. Krajeski, 104 Wn. App. 377, 384, 16 P.3d 69, review denied, 144 Wn.2d 1002 (2001).
1. Charging Document When a defendant alleges for the first time on appeal that a charging document fails to include all the essential elements of the charged crime, we liberally construe the document in favor of its validity. State v. Davis, 119 Wn.2d 657, 661, 835 P.2d 1039 (1992); State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). We employ a two-prong test, asking first whether `the necessary facts appear in any form, or by fair construction can they be found, in the charging document' and, if so, whether `the defendant [can] show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?' Kjorsvik, 117 Wn.2d at 105-06.
The charging document must include all essential elements of a crime to fulfill its purpose of supplying `the accused with notice of the charge that he or she must be prepared to meet.' Kjorsvik, 117 Wn.2d at 101. See also State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995). But the charging document need not use the exact statutory language if it employs words `conveying the same meaning and import[.]' Kjorsvik, 117 Wn.2d at 108; State v. Leach, 113 Wn.2d 679, 686, 782 P.2d 552 (1989). Here, the information charging Rhem and Wynn with first degree unlawful firearm possession does not use the term `knowledge:' That MICHAEL LOUIS RHEM, in Pierce County, on or about on or about the 21st day of August, 1999, did unlawfully and feloniously own, have in his possession, or under his control a firearm, he having been previously convicted in the State of Washington or elsewhere of a serious offense, to wit: Burglary in the Second Degree, contrary to RCW 9.41.040(1)(a), and against the peace and dignity of the State of Washington. . . . . That KIMOTHY MAURICE WYNN, in Pierce County, on or about on or about the 21st day of August, 1999, did unlawfully and feloniously own, have in his possession, or under his control a firearm, he having been previously convicted in the State of Washington or elsewhere of a serious offense, to wit: Assault in the Second Degree, contrary to RCW 9.41.040(1)(a), and against the peace and dignity of the State of Washington.
CP (Rhem) at 93-94 (counts VII and IX) (emphasis added). The State similarly charged Rhem with a second count of unlawful firearm possession, count VIII, to which he pleaded guilty.
But as we recently held, a liberal construction of the phrase `unlawfully and feloniously' adequately apprises a defendant of the knowledge element of unlawful firearm possession. Krajeski, 104 Wn. App. at 384-86; see also State v. Cuble, 109 Wn. App. 362, 367-68, 35 P.3d 404 (2001) (upholding use of `unlawfully and feloniously' language in first degree unlawful firearm possession charge). The Krajeski court's reasoning is in accord with other Washington cases similarly holding that `unlawfully and feloniously' is equivalent to alleging knowledge. See e.g., State v. Nieblas-Duarte, 55 Wn. App. 376, 380-81, 777 P.2d 583 (1989) (involving unlawful delivery of a controlled substance charges).
As to the second prong of the Kjorsvik test, Rhem does not allege any prejudice resulting from the information's allegedly inartful language. See 117 Wn.2d at 106. And Wynn asserts only that the information failed to describe or identify the particular firearm he allegedly possessed. But that allegation does not relate to a lack of notice as to the knowledge element. Thus, the inadequacy of the charging document does not mandate reversal.
2. `To Convict' Instruction
Although Rhem and Wynn did not challenge the `to convict' instructions below, the omission of an element is a manifest constitutional error that we will review. RAP 2.5(a)(3); State v. Aumick, 126 Wn.2d 422, 429-30, 894 P.2d 1325 (1995); State v. Scott, 110 Wn.2d 682, 688 n. 5, 757 P.2d 492 (1988).
The State concedes that the `to convict' instructions for the unlawful possession of a firearm charges erroneously omitted the `knowledge' element but again argues that the error was harmless.
The `to convict' instructions stated:
To convict defendant Wynn [defendant Rhem] of the crime of Unlawful Possession of a Firearm in the First Degree as charged in Count IX [Count VII], each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 21st day of August, 1999, defendant Wynn [defendant Rhem] had a firearm in his possession or control;
(2) That defendant Wynn [defendant Rhem] had previously been convicted of a serious offense [had previously been adjudicated guilty of a serious offense as a juvenile]; and
(3) That the possession or control of the firearm occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP (Wynn) at 235; CP (Rhem) at 207.
The failure to include an element in a `to convict' instruction may be subject to harmless error analysis under United States Supreme Court jurisprudence. See Neder, 527 U.S. at 15. But under current Washington case law, `when a trial court fails to include an essential element in a `to convict' instruction, it is a manifest constitutional error that requires automatic reversal.' State v. Summers, 107 Wn. App. 373, 381-82, 28 P.3d 780, 43 P.3d 526 (2001) (court ultimately found defendant invited error by proposing identical `to convict' instruction). A `to convict' instruction is intended to be a complete statement of the relevant law that the jury is entitled to rely on; we can only assume that it did so in this case. See State v. Smith, 131 Wn.2d 258, 263, 265, 930 P.2d 917 (1997). As the jury is not expected `to search the other instructions to make sense of the erroneous `to convict' instruction, and we cannot assume that the jury attempted to compensate for the court's error by doing so,' such an error cannot be harmless. Smith, 131 Wn.2d at 265 (`to convict' instruction that omitted essential element of crime not subject to harmless error analysis).
As we stated in State v. Jennings, Washington decisions seem to nominally adhere to prior case law but then conduct a harmless error analysis. For example, in State v. Cronin, 142 Wn.2d 568, 580, 14 P.3d 752 (2000), our Supreme Court held that "[i]t is reversible error to instruct the jury in a manner that would relieve the State of this burden," (quoting State v. Jackson, 137 Wn.2d 712, 727, 976 P.2d 1229 (1999) (quoting Byrd, 125 Wn.2d at 713-14, 887 P.2d 396)). But later in the same paragraph, the Court `turn[ed] to the question of whether the instructional error in these cases can be labeled harmless.' Cronin, 142 Wn.2d at 580, 14 P.3d 752. In State v. Stein, 144 Wn.2d 236, 246, 27 P.3d 184 (2001), the Court held that '[i]nstructional error is presumed to be prejudicial unless i[t] affirmatively appears to be harmless,' (citing State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977)).
111 Wn. App. 54, 44 P.3d 1, 5 n. 7 (2002). But Jennings involved an erroneous definitional instruction not a `to convict' instruction. 44 P.3d at 4-5.
Here, the `to convict' instructions omitted the element of knowledge. Notwithstanding the State's contention that the evidence of unlawful firearm possession was overwhelming, this defect necessitates reversal of the possession of a firearm jury convictions, counts VII (Rhem) and IX (Wynn). But this holding does not require the reversal of Rhem's conviction that resulted from his guilty plea, count VIII, as the plea was not tainted by the erroneous jury instruction.
C. Evidence of Habit — ER 404(b) and ER 406
Rhem and Wynn also argue that the trial court erred in admitting evidence that they were known to carry guns. They contend that this was ER 404(b) evidence and was highly prejudicial. .
We review the trial court's evidentiary decisions for an abuse of discretion. State v. Wade, 138 Wn.2d 460, 463-64, 979 P.2d 850 (1999). An abuse occurs when the court's decision is manifestly unreasonable or based on untenable grounds. Wade, 138 Wn.2d at 464.
Wynn and Rhem moved in limine to exclude `patterned testimony from [the State's] witnesses to the effect that defendant always carries a gun.' CP (Wynn) at 86. See also CP (Rhem) at 105 (`Evidence that Mr. Rhem was known to possess a gun on other occasions and that he was known to generally possess a gun should be suppressed under ER 402, ER 403 and ER 404 as being irrelevant to the crimes with which he is charged, and even if relevant unduly prejudicial and as prior bad acts.'). Wynn argued that the evidence did not satisfy the ER 406 requirements for the admission of habit or routine practice evidence and that its prejudicial impact outweighed its probative value under ER 403.
The trial court entered a written order admitting DeJesus's and Henderson's testimony that they saw the defendants `with a gun on a regular basis.' CP (Wynn) at 176. The court cited ER 406, ER 404(b), and State v. Platz, 33 Wn. App. 345, 655 P.2d 710 (1982). After admitting this testimony, the trial court instructed the jury at Wynn's request that:
`Testimony that either defendant generally was in possession of a firearm cannot be considered as proof that either defendant possessed a firearm specifically on or about the 21st day of August, 1999, for the purposes of the unlawful possession of a firearm in the first degree charges.' CP (Wynn) at 196. Evidence of other crimes or bad acts is not admissible to prove a person's character and that the person acted in conformity with that character. ER 404(b); State v. Saltarelli, 98 Wn.2d 358, 361, 655 P.2d 697 (1982). But such evidence may be admissible for other purposes if (1) the acts can be proven by a preponderance of the evidence; (2) the evidence is logically relevant to a material issue; and (3) the evidence's probative value outweighs its potential for unfair prejudice. State v. Pirtle, 127 Wn.2d 628, 648-49, 904 P.2d 245 (1995); Saltarelli, 98 Wn.2d at 362. Relevant evidence is of consequence to the action's outcome and makes the existence of a material identified fact more or less probable. Saltarelli, 98 Wn.2d at 362-63. ER 406 governs habit evidence: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Unlike ER 404(b), `Rule 406 makes it clear that evidence of a person's habit is relevant to prove the person acted in conformity with that habit on a particular occasion.' Karl B. Tegland, 5A Wash. Practice sec. 406.2, at 23 (4th ed. 1999). We agree with Tegland's distinction between character traits, such as stealing, lying, or forgetfulness, which are inadmissible under ER 404, and habits, such as driving without using a seat belt, patronizing a certain pub after each day's work or always signaling before changing lanes, which are admissible under ER 406. Tegland, 5A Wash. Practice sec. 406.2, at 23.
In Platz, a first degree murder case involving a stabbing death, the trial court admitted evidence that the defendant never left his house without his knife. 33 Wn. App. at 346-47, 351. The Platz court upheld the admission of the evidence, holding that '[t]he evidence did not go to show Platz' character which [ER 404(b)] proscribes.' 33 Wn. App. at 351. Additionally, the Platz court found the evidence admissible under ER 406, which explicitly recognizes evidence of habit is admissible. The testimony about Platz' propensity to carry a knife is within McCormick's definition of habit. "A habit . . . is the person's regular practice of meeting a particular kind of situation with a specific type of conduct. . . ." 5 K. Tegland, Wash. Prac., Evidence sec. 128, at 318 (2d ed. 1982).
Here, as in Platz, the court could properly characterize evidence that Rhem and Wynn routinely carried a weapon as ER 406 habit evidence. But because of Rhem's and Wynn's prior convictions, this evidence also proved prior illegal acts and, thus, is subject to the additional analysis of ER 404(b), including the satisfaction of ER 403's balancing test. See Saltarelli, 98 Wn.2d at 361 (admissibility of ER 404(b) evidence must also be considered under ER 402 and ER 403).
Although the trial court apparently relied on, in part, ER 404(b) in admitting this evidence, it failed to balance the probative value and prejudice of the evidence on the record. See State v. Jackson, 102 Wn.2d 689, 693, 689 P.2d 76 (1984) (balancing of probative value versus prejudice should be done on the record). This error is harmless, however, if we can determine from the record that the trial court would have admitted the evidence or if the trial's outcome would have been the same absent the evidence. State v. Carleton, 82 Wn. App. 680, 686-87, 919 P.2d 128 (1996).
In engaging in the balancing test, we are mindful that this evidence clearly had a high potential to be prejudicial, e.g., misused as evidence of the firearm possession charges. See State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987) (linchpin of ER 403 balancing test is determination of `unfair' prejudice). And it seems unlikely that the trial court's limiting instruction was effective. But see State v. Southerland, 109 Wn.2d 389, 391, 745 P.2d 33 (1987) (generally courts presume that the jury follows its instructions). Given the obvious connection of this evidence to both the assault with a gun and the possession of a gun charges, it was unrealistic to expect the jury to be able to comply with the limiting instruction and to consider the possession charges in a vacuum. See State v. Miles, 73 Wn.2d 67, 71, 436 P.2d 198 (1968) (error may be prejudicial even where court has instructed the jury to limit the use of evidence). As it seems unlikely that the jury was able to comply with the trial court's limiting instruction, we are unable to say that there is no reasonable probability that the trial's outcome would have differed absent the error. Jackson, 102 Wn.2d at 695. That the jury also convicted Wynn and Rhem of the assault charges arising from the Ash Street shooting does not make the error harmless, despite the State's contrary assertion.
We do note that the jury apparently considered each charge separately, as it acquitted Rhem and Wynn of some of the charges but convicted them of others. But some confusion was unavoidable in this eight-count trial as exemplified by the note the jury sent to the judge during deliberations:
Re: Rhem + Wynn
Are Counts VII and IX individual? Are they contingent on Counts I, II, III, IV and V, i.e. if we believe both defendants are `not guilty' on Counts I-V, can they be found `guilty' on Counts VII and IX?
CP (Wynn) at 245. The court responded: `Each of the counts are separate and independent, as you have been instructed in Instruction No. 9. Please reread this and all instructions, and remember to consider the instructions as a whole.' CP (Rhem) at 215.
Because the State charged Wynn and Rhem as accomplices in the assaults, the jury did not need to find that they were both armed during the shooting. Consequently, the error was not harmless and requires reversal of Wynn's and Rhem's firearm possession jury convictions (counts VII and IX).
D. Ineffective Assistance of Counsel
Wynn claims ineffective assistance based on his counsel's failure to object to the erroneous accomplice liability instructions and the erroneous `to convict' instruction on the unlawful firearm possession charge. Rhem limits his ineffective assistance claim to his counsel's failure to object to the `to convict' instruction. To sustain an ineffective assistance claim, a defendant must establish that his counsel's performance was objectively unreasonable and that there is a reasonable probability that the result of the proceeding would have been different absent the unprofessional errors. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). See also State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (claim fails if either prong is not met). We employ a strong presumption that counsel provided effective representation; using legitimate trial tactics is not deficient performance. McFarland, 127 Wn.2d at 335; State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994). Rhem and Wynn have not established deficient performance in their counsel's failure to object to the challenged instructions. Here, at the time the trial court heard exceptions to the proposed jury instructions, the Washington Supreme Court had not yet issued its Roberts, Cronin and Anderson decisions. Thus, when the trial court heard objections to the proposed jury instructions, the existing case law gave defense counsel no basis for an objection. See State v. Anderson, 94 Wn. App. 151, 153, 971 P.2d 585 (1999) (knowledge is not an essential element of second degree unlawful possession of a firearm), rev'd, 141 Wn.2d 357 (2000). Rhem and Wynn have not established deficient performance and their ineffective assistance claims therefore fail. See Hendrickson, 129 Wn.2d at 78.
E. Sufficiency of the Evidence
In a sufficiency challenge, we take the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). Circumstantial and direct evidence are equally reliable and credibility determinations rest solely with the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
The evidence here clearly was sufficient to support both of Rhem's assault convictions and his unlawful firearm possession jury conviction. Rollins recognized Rhem when Rollins first went outside his aunt's house and again when he saw Rhem running from the scene after the shots were fired. DeJesus and Henderson testified that Rhem admitted to shooting at Rollins and Matthews. The State recovered .45 caliber casings from the scene and DeJesus and Henderson testified that they knew Rhem carried a .45 caliber gun. And there was evidence of a motive as Rhem was angry with Rollins over the fight in July.
Rhem attacks this evidence, arguing that Rollins did not see Rhem shoot at him or see Rhem carrying a gun and Matthews had nothing to add to Rollins's testimony. But there is reasonable circumstantial evidence that Rhem was the shooter. Rhem also attacks the credibility of DeJesus and Henderson. But we will not review the jury's credibility determinations. Camarillo, 115 Wn.2d at 71.
Wynn also challenges DeJesus's and Henderson's credibility, arguing that the only evidence supporting a finding of guilt is their testimony about Wynn's admissions related to the shooting. Wynn discounts the forensic evidence that 9 mm casings from the shooting at Wynn's aunt's house matched 9 mm casings recovered from the scene of the charged shooting, arguing that there was no evidence linking Wynn to this `unknown' 9 mm gun. Appellant Wynn's Br. at 49.
Taking the evidence in the light most favorable to the State, the following evidence supports Wynn's convictions. First, although Rollins did not see Wynn, he testified that '[t]hese guys [Rhem and Wynn] were together every time' and that he saw one tall person and one short person run off after the shooting. 4 RP at 359. There was evidence that Rhem was 6'3' and Wynn was 5'7'. Second, Wynn admitted to DeJesus and Henderson that he was involved in the shooting. Third, a 9 mm casing that the police recovered from Wynn's aunt's house and the 9 mm casings from the shooting at Rollins's aunt's house were fired from the same gun. Wynn told DeJesus that he had fired back at the shooters at his aunt's house. And DeJesus and Henderson testified that Wynn was known to carry a 9 mm gun and Wynn sold his 9 mm to DeJesus after the charged shooting. Fourth, Wynn had a motive for the shooting as he told DeJesus that he thought Hebert and Rollins were the shooters at Wynn's aunt's house. This evidence is sufficient to support the convictions.
There also was testimony that Latron Swearington was present at the shooting and that he was about 5'7' as well.
II. Wynn's Motion to Sever
Finally, Wynn asserts that the trial court erred in denying his motion to sever his trial from Rhem's. The State first asks this court to find that Wynn waived his severance motion by failing to renew it at the appropriate time. Alternatively, the State contends that the trial court properly denied the motion because Wynn could not show specific prejudice.
Wynn relies on CrR 4.4(c)(2), which provides:
(2) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (i), should grant a severance of defendants whenever: (i) if before trial, it is deemed necessary to protect a defendant's rights to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of a defendant; or (ii) if during trial upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of the guilt or innocence of a defendant.
To preserve an objection to the denial of a severance motion, the defendant must renew the motion before or at the close of all evidence. CrR 4.4(a)(2).
As to the State's waiver argument, Wynn first made his severance motion on March 24, 2000, before a pre-trial motion judge, who denied his motion. When Rhem made a severance motion on March 27, Wynn noted that he would `renew my motion, as the Court rule requires me to do so, to preserve it.' RP (3/27/00) at 101.
In April, Wynn notified the trial judge that he was `going to be renewing that [motion] because the rules require me to renew that at the time of trial, otherwise it is waived[.]' 2 RP at 111. Later that same day, in response to an inquiry from the trial court, Wynn asked the court when it would like him to renew his severance motion. The court indicated that it wanted to conclude all pretrial motions that day so that jury selection could begin on Monday morning. Wynn thus renewed his motion, which the trial court again denied. Based on this record, the State's waiver argument is not compelling.
There is some ambiguity in the record about whether Wynn needed to renew his motion yet again. The trial court noted that it `may spend some time over the course of the next couple of days taking a further look at this,' but at that point, it was denying the motion. 2 RP at 210. Wynn then noted that he `may have to renew it again at some point.' 2 RP at 210. Wynn apparently did not raise the issue again until his motion for a new trial.
We review a trial court's decision on a severance motion for a manifest abuse of discretion. State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991). This state does not favor separate trials and, thus, the party seeking severance has `the burden of demonstrating that a joint trial would be so manifestly prejudicial as to outweigh the concern for judicial economy.' Hoffman, 116 Wn.2d at 74. See also State v. Dent, 123 Wn.2d 467, 484, 869 P.2d 392 (1994). The defendant must point to specific prejudice to support his motion. State v. Canedo-Astorga, 79 Wn. App. 518, 527, 903 P.2d 500 (1995). This demonstration may show (1) antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive; (2) a massive and complex quantity of evidence making it almost impossible for the jury to separate evidence as it related to each defendant when determining each defendant's innocence or guilt; (3) a co-defendant's statement inculpating the moving defendant; (4) or gross disparity in the weight of the evidence against the defendants.
Canedo-Astorga, 79 Wn. App. at 528 (quoting United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985)). But mutually antagonistic defenses alone are insufficient to support separate trials. Hoffman, 116 Wn.2d at 74. Rather, the moving party must demonstrate `that the conflict is so prejudicial that defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' Hoffman, 116 Wn.2d at 74.
Wynn's entire assertion of prejudice was that `there was a gross disparity of prejudicial evidence against Rhem, which would not have been admissible against Wynn in a separate trial.' Appellant Wynn's Br. at 45. But '[t]he mere fact that evidence may be admissible against one defendant and not against another is not in and of itself proof that the two defendants cannot have a fair trial if tried together.' State v. Courville, 63 Wn.2d 498, 501, 387 P.2d 938 (1963). See also State v. Philips, 108 Wn.2d 627, 640, 741 P.2d 24 (1987) (`The mere fact that evidence admissible against one defendant would not be admissible against a codefendant if the latter were tried alone does not necessitate severance[.]'). Additionally, the courts have recognized that a limiting instruction may cure any prejudice. Courville, 63 Wn.2d at 501. Here, the court instructed the jury that '[e]vidence of an incident that took place on July 21, 1999, involving a fight may not be used for any purpose or consideration as it relates to defendant Kimothy Wynn.' CP (Wynn) at 195.
The trial court also gave the following standard instruction:
A separate crime is charged against one or both of the defendants in each count. The charges have been joined for trial. You must decide the case of each defendant or each crime charged against that defendant separately. Your verdict on any count as to any defendant should not control your verdict on any other count or as to any other defendant.
CP (Wynn) at 199.
Thus, as Wynn's only argument in support of his severance motion is that there was a `gross disparity' of evidence admissible against Rhem but not against Wynn and the trial court gave an appropriate limiting instruction, Wynn has failed to show specific prejudice.
We reverse counts IV, V, VII, and IX, the jury convictions for assault and possession of a firearm, and remand for a new trial on those counts. But we affirm Rhem's conviction on count VIII, the guilty plea to the possession of a firearm charge.
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.
MORGAN and BRIDGEWATER, JJ.