Opinion
No. 25881-5-III.
January 29, 2009.
Appeal from a judgment of the Superior Court for Okanogan County, No. 06-1-00113-1, John E. Bridges, J. Pro. Tem., entered February 6, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
UNPUBLISHED OPINION
This appeal follows convictions for second degree assault, possession of cocaine and marijuana, and furnishing liquor to a minor. The defendant assigns error to a number of the court's discretionary rulings, and he challenges the sufficiency of the evidence to support his convictions. We conclude that the court did not abuse its discretion by refusing to order testing of the victims' hair samples; nor did it abuse its discretion by the way it chose to instruct the jury. And the evidence easily supports the convictions here. We then affirm the convictions.
FACTS
Daniel Zbylski owned a sports card shop where he sold, among other things, cards, candy, and drinks. Many of his customers were local middle school and high school students, including Patrick Parks and Richard Judd. Mr. Parks also worked occasionally at Mr. Zbylski's shop and home.
One evening, Mr. Zbylski offered to sell beer to Mr. Judd and Mr. Parks for a camping trip they were planning. The boys went to Mr. Zbylski's house to buy the beer. Mr. Zbylski invited the boys inside and offered them a drink. Mr. Parks accepted a mixed drink, and Mr. Judd took a beer. The three then watched a movie briefly before Mr. Zbylski went into his kitchen with a piece of glass and a white powder substance. He called the boys into the kitchen, handed Mr. Parks a rolled up bill, and told him to inhale a line of the white substance. Mr. Parks refused, and Mr. Zbylski pulled out a gun and pointed it at Mr. Parks' face. Mr. Parks felt "[s]cared for [his] life," so he snorted a line of the drug. III Report of Proceedings (RP) at 326.
Mr. Zbylski then pointed the gun at Mr. Judd and told him to snort a line of the drug. Mr. Judd was afraid he would get shot. He said he did not know how to snort drugs, so Mr. Zbylski showed him. Mr. Zbylski bent over to snort the drugs and Mr. Parks picked up a rock from the kitchen floor and hit him in the back of the head with it. Mr. Parks then ran from the house to a gas station where he called 911.
Officers took Mr. Zbylski into custody and secured a warrant to search Mr. Zbylski's house. They searched his house and found white powdery residue in the kitchen, on a coffee table, and in the garbage can. The white substance tested positive for cocaine. Officers also found marijuana in a kitchen drawer and in the bathroom.
The police arrested Mr. Zbylski and the State charged him with two counts of first degree assault with a firearm or deadly weapon, one count of possession of a controlled substance (cocaine), one count of possession of marijuana (40 grams or less), and one count of furnishing liquor to a minor.
Mr. Zbylski denied the charges. He also moved for an order to sample Mr. Judd's and Mr. Parks' hair. He wanted to test their hair for the presence of drugs. The trial judge denied the motion because "ingestion of cocaine at an unidentified prior date, or even the date in question, by the victims is not an element that the State is required to prove or that is at issue in this case." RP (July 19, 2006) at 14.
The State and Mr. Zbylski presented evidence to a jury. The court then instructed the jury to determine, among other things, whether Mr. Zbylski committed two counts of first degree assault or, alternatively, two counts of second degree assault:
The defendant is charged in count 1 and 2 with assault in the first degree. If, after full and careful deliberation on this charge, you are not satisfied beyond a reasonable doubt that the defendant is guilty, then you will consider whether the defendant is guilty of the lesser crime of assault in the second degree.
When a crime has been proved against a person, and there exists a reasonable doubt as to which of two degrees that person is guilty, he or she shall be convicted only of the lowest degree crime.
Clerk's Papers (CP) at 34 (Jury Instruction 14).
The court also submitted a firearm special verdict form to the jury. During deliberations, the foreperson asked the court to clarify the jury's role in determining "the connection between the firearm [and] the crime." CP at 9. The court told the jury to refer to the instructions. The foreperson later asked: "If we cannot agree on the special verdict form — firearm[,] does this constitute a `hung jury'?" CP at 7. The court asked the jury on the record whether there was a reasonable probability that it could agree on the special verdict. The foreperson did not think so but said the jury could return verdicts on the other charges. The court told the jury to continue deliberating.
Shortly thereafter, the foreperson told the court that the jury had reached a verdict. The judge read the verdict. Mr. Zbylski asked the court to poll the jurors. The verdict was not unanimous. An unidentified male then asked the court to clarify whether disagreement on whether Mr. Zbylski committed first degree assault automatically resulted in a guilty verdict for second degree assault. The judge again told the jury to read the instructions for guidance, and he sent the jury back to the jury room to continue deliberating.
The jury soon returned with a unanimous verdict. It found Mr. Zbylski guilty of possession of cocaine and marijuana, furnishing liquor to a minor, and two counts of second degree assault. The jury did not reach a verdict on whether Mr. Zbylski committed first degree assault with a firearm.
DISCUSSION
Hair Samples
Mr. Zbylski first contends that the trial court erred by denying his motion for hair samples. The trial court denied the motion because proof that Mr. Judd and Mr. Parks recently consumed drugs was not a material issue of fact.
We review a trial court's decision denying a motion to compel discovery for abuse of discretion. State v. Norby, 122 Wn.2d 258, 268, 858 P.2d 210 (1993). A trial court abuses its discretion when its decision is based on untenable grounds or reasons. State v. Lusby, 105 Wn. App. 257, 262, 18 P.3d 625 (2001).
Mr. Zbylski maintains that his motion should have been granted under CrR 4.7(d) or (e). CrR 4.7 is the criminal discovery rule. And CrR 4.7(d) requires a defendant to ask the prosecutor to gather material possessed by others if the material "would be discoverable if in the knowledge, possession, or control of the prosecuting attorney."
Mr. Zbylski wanted a sample of the victims' hair. But the prosecutor would not have had to disclose the hair samples even if he had them (there was no showing he did).
CrR 4.7(a) and (c) list the materials a prosecutor is required to disclose, and hair is not one of them. CrR 4.7(d), then, does not support Mr. Zbylski's motion for hair samples.
CrR 4.7(e) also does not compel disclosure here. A court may require disclosure of relevant material not covered by CrR 4.7(a), (c), and (d) (e.g., hair) when the defendant shows the matter is material to his defense and the request is reasonable. CrR 4.7(e)(1).
Hair samples were not material to Mr. Zbylski's potential defenses — self-defense and the State's failure to prove the charges. He did not allege that drug ingestion by the victims somehow caused him to have to defend himself. See State v. Woods, 138 Wn. App. 191, 199, 156 P.3d 309 (2007) (defining self-defense). And hair samples and test results would not have disproved the assault charges because drug ingestion by alleged victims is not an element of the offense. See RCW 9A.36.021(1)(c).
The court did not abuse its discretion by denying Mr. Zbylski's motion. Jury Question
Mr. Zbylski next argues that the court inadequately answered a jury question about a firearm special verdict form. We review a court's response to a jury question for an abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).
The trial court submitted the following firearm special verdict form to the jury:
We, the jury, return a special verdict by answering as follows:
Was the defendant armed with a firearm at the time of the commission of the crime in count 1? [Write "yes" or "no"].
Was the defendant armed with a firearm at the time of the commission of the crime in count 2? [Write "yes" or "no"].
CP at 6.
The jury asked the court to clarify the jury's role in determining "the connection between the firearm [and] the crime." CP at 9. The court told the jury to read the form again.
A trial judge does not have to answer a question from the jury. State v. Miller, 40 Wn. App. 483, 489, 698 P.2d 1123 (1985). And a court does not prejudice a defendant by directing the jury to again read instructions. In re Pers. Restraint of Howerton, 109 Wn. App. 494, 506, 36 P.3d 565 (2001). The court here properly told the jury to refer back to the verdict form because the form answered the jury's question. Mr. Zbylski has not shown that the trial court's answer or verdict form was either erroneous or prejudicial. Jury Instruction 14
Mr. Zbylski next asserts that jury instruction 14 was ambiguous and that the trial court, therefore, should have given the jury a clarifying instruction when a juror identified the ambiguity. His argument is based on a Ninth Circuit Court of Appeals holding that a court abuses its discretion by failing to "provide the jury with a clarifying instruction when it has identified a legitimate ambiguity in the original instructions." United States v. Southwell, 432 F.3d 1050, 1053 (9th Cir. 2005).
Again, jury instruction 14 instructed the jury that:
The defendant is charged in count 1 and 2 with assault in the first degree. If, after full and careful deliberation on this charge, you are not satisfied beyond a reasonable doubt that the defendant is guilty, then you will consider whether the defendant is guilty of the lesser crime of assault in the second degree.
When a crime has been proved against a person, and there exists a reasonable doubt as to which of two degrees that person is guilty, he or she shall be convicted only of the lowest degree crime.
CP at 34.
Mr. Zbylski contends that the instruction was ambiguous because it allowed the jury to find him guilty of second degree assault even if the State did not prove all the elements of the offense. Appellant's Br. at 46. But jury "instructions must be read together and viewed as a whole." State v. Teal, 117 Wn. App. 831, 837, 73 P.3d 402 (2003), aff'd, 152 Wn.2d 333, 96 P.3d 974 (2004). Read together, the jury instructions here clearly required the jury to find that the State proved second degree assault beyond a reasonable doubt because jury instructions 16 and 17 explicitly stated that each element of second degree assault had to be proved beyond a reasonable doubt to convict. See CP at 36-37.
Jury instruction 14 was not ambiguous. Jury Poll
Mr. Zbylski further contends that the trial judge improperly influenced the jurors by polling them before they reached a unanimous decision and then sending them back to the jury room to continue deliberating. He asserts that the judge's actions amounted to threats to the jury to reach a decision.
The court must poll the jury if the prosecutor or the defense requests it. CrR 6.16(a)(3). Polls verify that each juror agrees with the jury's verdict. "If at the conclusion of the poll, all of the jurors do not concur, the jury may be directed to retire for further deliberations." Id.
The trial judge, then, correctly applied the rule. The record shows that the foreperson told the court the jury had reached a verdict. The judge read the verdict. And Mr. Zbylski asked the court to poll the jurors. The poll showed that the verdict was not unanimous, so the court sent the jury back to the jury room to continue deliberating. The court did not abuse its discretion by the way in which it chose to handle the poll. Sufficient Evidence — Second Degree Assault.
Mr. Zbylski contends that the evidence is not sufficient to support his convictions for second degree assault. We, then, review the record to determine whether substantial evidence supports the conviction. State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303 (1992), abrogated by State v. Trujillo, 75 Wn. App. 913, 883 P.2d 329 (1994). Evidence is substantial when, viewed in the light most favorable to the State, it permits any jury 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). The question is whether the State produced some evidence of each element of a crime, here, assault. We do not determine whether the State's evidence is persuasive. State v. Huff, 64 Wn. App. 641, 655, 826 P.2d 698 (1992). The jury makes that determination. Id. And the jury's failure to return a firearm special verdict does not affect the analysis here because proof of a "firearm" is not necessary to prove second degree assault.
A person who assaults another with a deadly weapon is guilty of second degree assault. RCW 9A.36.021(1)(c). And a deadly weapon includes "any . . . loaded or unloaded firearm." RCW 9A.04.110(6). In this case, an assault requires the actor to "attempt, with unlawful force, to inflict bodily injury upon another," or intentionally "put[] another in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting that harm." State v. Stevens, 158 Wn.2d 304, 311, 143 P.3d 817 (2006); State v. Karp, 69 Wn. App. 369, 374, 848 P.2d 1304 (1993) (intent element).
For example, a person commits second degree assault by pointing a gun at another who is within shooting distance. Karp, 69 Wn. App. at 374. Here, Mr. Parks felt "[s]cared for [his] life" when Mr. Zbylski pointed a "black gun" at the side of his face to compel him to snort cocaine. III RP at 324, 326. And Mr. Judd was afraid he would get shot when Mr. Zbylski next pointed the gun at his head to make him snort cocaine. We can easily infer from this testimony that Mr. Zbylski intentionally pointed a gun at the victims within shooting distance.
The State, then, produced enough evidence to prove second degree assault. Cumulative Error.
Mr. Zbylski next asserts that his convictions should be reversed under the cumulative error doctrine. The cumulative error doctrine does not apply here because the court did not err. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Statement of Additional Grounds
We have already addressed some of the issues Mr. Zbylski raises in his statement of additional grounds. We will not revisit those issues here. We also do not address arguments irrelevant to this appeal (e.g., obtaining copies of cell phone records).
Mr. Zbylski first argues that his attorneys provided ineffective assistance of counsel for a variety of reasons. He complains that the attorneys did not want to call any defense witnesses, hardly questioned witnesses, and did not fight to admit or suppress evidence. These decisions are ordinarily a matter of legitimate trial tactics and do not support a claim of ineffective assistance. State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995); State v. We, 138 Wn. App. 716, 728-29, 158 P.3d 1238 (2007), review denied, 163 Wn.2d 1008 (2008). And, considering the charges against him, the additional witnesses proposed by Mr. Zbylski would not have produced relevant testimony.
He also complains that his trial attorney sent text messages during trial. We would not condone such behavior (assuming it was unrelated to Mr. Zbylski's defense), but the record does not support Mr. Zbylski's allegation, in any event.
Mr. Zbylski argues that the trial court erred by admitting the tape of Mr. Parks' 911 call because the State did not authenticate the tape. The trial court has considerable discretion to admit evidence and did not abuse its discretion here. State v. Kinard, 39 Wn. App. 871, 874, 696 P.2d 603 (1985). The State properly authenticates a 911 tape "by calling a witness who has personal knowledge of the original conversation and the contents of the tape; who testifies that the tape accurately portrays the original conversation; and who identifies each relevant voice heard on the tape." State v. Jackson, 113 Wn. App. 762, 769, 54 P.3d 739 (2002). The State here followed the authentication process precisely. III RP at 345, 347-48. The court admitted the tape only after Mr. Parks testified that he was the caller on the tape and that the tape reflected accurately his conversation with the 911 operator.
Mr. Zbylski further asserts that sufficient evidence does not support his convictions for possession of cocaine and marijuana and furnishing liquor to a minor. He maintains that he did not buy or give either victim alcohol and that he did not have drugs in his house. These are the same arguments he made at trial. The jury did not believe him and found him guilty. Other evidence presented at trial was sufficient for a rational trier of fact to find beyond a reasonable doubt that Mr. Zbylski committed those offenses. A jury's determinations of credibility are final. State v. Bryant, 89 Wn. App. 857, 869, 950 P.2d 1004 (1998).
Mr. Zbylski also says that he did not receive Miranda warnings. But the record shows that an officer read Mr. Zbylski his Miranda rights. II RP 194, 197.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
He claims that the trial court prevented him from arguing his defense theory by not ordering Mr. Parks to lift the rock he used to hit Mr. Zbylski over his head. Mr. Zbylski's defense was that the State did not prove its case. And Mr. Zbylski testified to that effect. Therefore, he was allowed to argue his theory of the case to the jury. Moreover, whether Mr. Parks hit Mr. Zbylski in the head with a rock was not a disputed issue of fact at trial. The demonstration was not necessary.
Mr. Zbylski also makes several allegations that are not supported by this record: (1) police officers arrested him without a warrant; (2) police officers illegally added to a search warrant; (3) the jury pool was biased and glared at him; (4) the court admitted a victim impact statement that was neither signed nor relevant; and (5) the court improperly permitted Sergeant Mike Worden to sit next to the prosecutor during trial. The record does not suggest that any of these things occurred. We will not consider matters outside the record on appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Mr. Zbylski must allege violations based on the record. Id.
We affirm Mr. Zbylski's convictions.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and BROWN, J., concur.