STATE OF WASHINGTON, Respondent, v. GARY ALAN NOBLE, Appellant.

No. 48423-1-IThe Court of Appeals of Washington, Division One.
Filed: April 21, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County Docket No: 00-1-01381-3 Judgment or order under review Date filed: 04/13/2001

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Sharon Jean Blackford, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Counsel for Respondent(s), Stephen Paul Hobbs, King County Courthouse, Ste 5th, 516 3rd Ave, Seattle, WA 98104-2385.

GROSSE, J.

Under State v. Manussier,[1] we reject Noble’s argument that the sentencing court erred in denying his request to have a jury determine his identity as the perpetrator of, as well as the underlying facts of, the prior crimes used to support the determination that he was a persistent offender. Finding no merit to the remainder of Noble’s claims regarding the admissibility of the evidence or severance of the counts, the conviction and sentence are affirmed.

FACTS
In early 2000, there was a spree of bank robberies in West and South Seattle.[2] Based on an informant’s tip, Noble was arrested at a motel in the Sea-Tac area in the early morning hours of February 12, 2000. He did not resist arrest. He was given Miranda[3] warnings, placed on the floor, handcuffed, and a pat-down search was conducted. An unloaded .44 magnum Ruger Blackhawk revolver was recovered from the waistband of his pants. Noble gave officers written permission to search his room where they found clothes and other items matching the descriptions given by witnesses of the various robberies. Noble was transported to the task force office of the Federal Bureau of Investigation. During transport, a detective asked him where he obtained the gun. Noble replied that he purchased it from a person on the street for $150 who obviously did not know the revolver’s worth. Noble said he purchased the revolver within the past few days, a time after the charged crimes were committed. He said he had never fired the gun and did not have bullets for it. When asked what the gun was for, Noble chuckled and said he used it for the robberies. He reportedly said it made it easy because he could just lift up his shirt, show the teller the gun, and she gave him the money, and he didn’t even have to take the gun out. Noble repeated that he never used the gun to hurt anyone and reiterated that he never had to take it out. Noble was charged by second amended information with three counts of first degree robbery, two counts of second degree robbery, and a firearm charge. Before trial, he moved to sever one of the robbery counts and he also moved to sever the firearm charge. The court denied Noble’s motion to sever count 3 of the robbery charges, but granted severance on the firearm count.

In discussing long-recognized factors that might offset or neutralize the prejudicial effect of joinder, the court noted it was clear that the alleged crimes were of the same or similar character. The court determined that the strength of the evidence was relatively equal on each count, that the defenses were similar, and that each count would appear to be separate and clear to a jury. The court also found that Noble would not be embarrassed or confounded by trying all the robbery charges in the same trial and that the jury would not infer criminal disposition or accumulate the robbery charges because each charge would be presented separately. The court stated that sufficient jury instructions would be given to instruct the jury to separate each count and defense. The court also discussed the factor of cross-admissibility of evidence used to determine potential severability. The court concluded it did not have to find that evidence of all the charges was cross-admissible in order to deny the motion to sever.

The court further indicated that additional admissibility factors under ER 404(b) expanded what was admissible under a common plan or scheme exception. The court noted that the evidence in these cases was so strong on each count that the court did not have to reach the cross-admissibility factor.

At trial, Noble renewed his motion to sever count 3. That particular count involved Noble allegedly robbing the same bank teller with whom he had an earlier transaction involving false identification. Noble stated he wanted to testify about the prior transaction to explain the circumstances of their first meeting, but did not want to testify at any trial on the other counts. The motion was again denied. It was denied a third time at the end of the State’s case.

Noble was convicted of five counts of second degree robbery. The sentencing court determined that Noble was a persistent offender and sentenced him to life in prison without the possibility of parole. Noble appeals.

DISCUSSION
Noble was sentenced to life imprisonment without the possibility of parole under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 (SRA).[4] At sentencing, the court noted it was bound by the decisions in State v. Thorne,[5] State v. Rivers,[6] and State v. Manussier,[7] to find that the POAA is a sentencing statute governed by the SRA and not a statute defining a particular crime. For that reason, the court denied Noble’s claim that he had a right to a jury determination of his predicate strike offenses and identity. Noble claims that these Supreme Court cases dispensed with a number of challenges to the POAA based on federal and state constitutional challenges, but did not address his claim of a right to a jury determination. Noble seeks review based on dicta in the post-Apprendi[8] case of State v. Wheeler,[9] in which the court stated: `Should this Court revisit the issue, the state constitution provides the most fruitful approach.’ Noble suggests that this court should revisit the issue and does so by providing the Gunwall[10]
analysis missing in Wheeler.

The Gunwall analysis provides interesting argument but an opinion from this court recently addressed the issue. That case notes that although the majority in the Manussier decision does not explicitly address the question of whether the POAA violates the right to a jury trial under the state constitution, Justice Madsen’s dissent analyzes the issue extensively.

Because the majority opinion in Manussier does not adopt the analysis of the dissent, this court presumes the majority rejected the argument.[11] We adhere to that decision and reject Noble’s argument. Noble claims the sentencing court erred in holding that his 1969 conviction on a plea of guilty to assault in the first degree qualified as a predicate strike. We disagree. Noble was 17 years of age when he committed the assault and attempted robbery. A few days later, while still 17, he was arrested for being a runaway and for investigation of an assault on a police officer. Noble turned 18 before charges were filed, approximately one month after the crime. His co-defendant was not arrested until a later date. The record does not show any assertion of pre-accusatorial delay, but Noble now claims on appeal that he must have been unconstitutionally declined, if at all, to adult court, or at least improperly transferred considering the terms of the current statute. The trial court rejected the argument holding that under the circumstances Noble fell squarely within the statutory definition of persistent offender; that a felony was committed as established by state law; and that Noble was 18 years old at the time the conviction was obtained. Former RCW 9.94A.030(29) (2000), recodified as RCW 9.94A.030(32), defined a persistent offender as an individual who:

(a)(i) Has been convicted in this state of any felony considered a most serious offense; and (ii) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions . . . of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.360[.]

Former RCW 9.94A.030(27) (2000), recodified as RCW 9.94A.030(30), defined `offender’ as:

A person who has committed a felony established by state law and is eighteen years of age or older or is less than eighteen years of age but whose case is under superior court jurisdiction under RCW 13.04.030 or has been transferred by the appropriate juvenile court pursuant to RCW 13.40.110.

Noble’s claim that he probably was not represented by counsel in juvenile court is an improper collateral attack on the 1969 conviction. Although he claims he was not represented in any of the juvenile proceedings, the important fact is that he was charged and tried in adult court after he turned 18 and after the juvenile court lost jurisdiction.[12] Thus, what might or might not have happened in juvenile court is of no moment. Noble also argues that even assuming the charges were properly filed in adult court, he does not satisfy the definition of `offender’ as set forth in former RCW 9.94A.030(27) as construed by State v. Ollens, 89 Wn. App. 437, 442, 949 P.2d 407 (1998). A common sense reading of former RCW 9.94A.030(27) does not support his claim. Under the statute an offender is one who has committed a felony established by state law and is 18 years of age or older. Noble concedes the statute recognizes that certain juveniles could be convicted of crimes resulting in a predicate strike, but argues that he must have been 18 years old at the time he committed the felony. But the plain language of the statute indicates that an offender is a person who has committed a felony. A person cannot be said to have committed a felony until there is an adjudication of guilt. This interpretation is consistent with the fact that it is the date of trial, not the date of the crime, which determines whether an individual is treated as a juvenile or an adult.[13] Noble’s emphasis on the Ollens case is misplaced.[14] Noble meets the definition of `offender.’ Noble next claims his conviction should be reversed due to the trial court’s failure to timely enter written findings of fact and conclusions of law. We disagree. On November 2, 2000, the trial court issued an oral ruling denying the CrR 3.5 and CrR 3.6 motions. Extremely tardy findings and conclusions on these hearings were entered on March 5, 2002, a date after Noble filed his opening appellate brief. The State concedes it is responsible for the entry of written findings and conclusions, but argues that reversal is not the appropriate remedy. A trial court’s failure to enter findings of fact and conclusions of law as required under CrR 3.5 and CrR 3.6 is error and may not always be excused.[15] But there is a clear and comprehensive oral opinion that permits this court to determine how or whether the dispositive factual issues were decided by the trial court. Although the findings and conclusions were entered after Noble’s appellate brief was filed, those findings and conclusions mirror the rulings of the trial court.

In State v. Head,[16] a trial court failed to enter written findings and conclusions as required by CrR 6.1(d). As stated in CrR 3.5 and CrR 3.6, the entry of findings is mandatory. The Supreme Court agreed that the findings and conclusions were mandatory but remanded for entry of the findings. Here, a remand is not necessary because findings and conclusions have been entered.

The Head court held that if a defendant could show actual prejudice from the failure to enter written findings, reversal might be an appropriate remedy. But the court held that the burden of establishing prejudice was on the defendant and that no prejudice would be inferred from a delay in the entry of the written findings and conclusions.[17]
Noble fails to show that delayed entry of these findings prejudiced his case to warrant a reversal of the conviction. With a minor exception, Noble has not claimed any error on appeal associated with the CrR 3.5 and CrR 3.6 findings and conclusions. His arguments are geared to the denial of a motion in limine.

Following the CrR 3.5 and CrR 3.6 hearings, the trial court heard various motions. Through a motion in limine Noble objected to the admissibility of the gun and his statements made about the gun and its use while being transported following his arrest. Noble asserts that this testimony is improper as `propensity evidence,’ inadmissible under ER 404(b). The testimony that Noble objected to included testimony of one of the detectives who said Noble told him:

He said that he used it for the robberies and it made it easy. He didn’t even have to pull it out. He just pulled up his shirt, showed it to the teller, and she would give him the money. We asked what kind of gun it was. He said a .44 caliber Ruger Blackhawk and he had gotten a hell of a deal on it. He had bought it the day before, I believe he said, or the week before on the street from a guy for 150 dollars because the guy was basically an idiot and didn’t know what he had.

Noble argues that he purchased the gun after the dates of the charged robberies. Further, there was no testimony from any of the witnesses in these cases that Noble pulled up his shirt, or that they actually saw a gun. Therefore he claims the evidence is improper ER 404(b) propensity evidence and should have been excluded.

The trial court disagreed. The court found that Noble’s statements or admissions, made 11 days after the last charged robbery, and the fact that he may have used a gun were highly relevant. The statement imparted unique knowledge concerning the robberies that only the true suspect would know.

The court found that there was evidence the defendant displayed what appeared to be a firearm and took money by use of immediate force. The court held the gun and Noble’s related statements were not ER 404(b) evidence. The court indicated that only the five charged robberies were before the jury. There was no evidence or reasonable inference from the statement that a rational trier of fact could conclude that it was a reference to other robberies.

A trial court’s decision concerning the admissibility of evidence is within its sound discretion, and any decision is reviewed only for abuse of that discretion.[18] We agree that the evidence of the gun and statements are direct evidence of the charged crimes and not testimony of other wrongs or acts prohibited by ER 404(b). Under ER 404(b), evidence of other crimes, wrongs, or acts is inadmissible to prove character or show action in conformity therewith (propensity evidence). If a trial court considers the admissibility of evidence pursuant to ER 404(b), the trial court should identify the purpose for which the evidence is introduced, determine that the evidence is relevant, and balance the evidence’s probative value against its prejudicial effect.[19] Even if we disagreed with the trial court and found that the statement was evidence of other `bad acts,’ it would still be admissible under ER 404(b) in proper circumstances, such as those here. The purpose of the evidence was to demonstrate Noble’s intent and plan during the charged bank robberies. The court properly indicated that Noble’s assertion that he only intended to commit theft, not robbery, unequivocally placed the issue of his intent into dispute. His statements and the use of a gun indicated his approach or method used for bank robbery and the evidence is highly relevant. Contrary to Noble’s assertions, the testimony was highly probative and considering the posture of the case, and any prejudicial effect was minimal. This is especially true when the admitted statement contained Noble’s own explicit explanation regarding his intent not to harm anyone. Further, the State offered to take steps to mitigate any prejudice stemming from the gun itself, including instructing witnesses not to disclose the caliber of the weapon and by only introducing a photocopy of the gun, rather than the actual weapon. It was the State’s position that there were no other uncharged crimes. The admission of the gun and Noble’s statements could be properly admitted on this basis especially in light of his claim that he was only committing theft, not robbery. This is not a case that should be favorably compared to State v. Freeburg,[20] one in which the defendant was not arrested until three years following the charged crime. In Freeburg, the trial court admitted evidence of a handgun found on his person when he was arrested based on the fact that it was evidence of flight. The Court of Appeals reversed, noting no connection between the handgun found on the defendant and the charged crime. Although at first blush, the same might be argued here, the gap in time was not similar, and the evidence was admitted for a showing of intent and plan, not flight. Therefore, it was considerably more relevant and not as prejudicial.

Finally, Noble claims the criminal presiding court and the trial court abused their discretion in failing to sever one of the five bank robbery counts from the other four counts. `The failure of the trial court to sever counts is reversible only upon a showing that the court’s decision was a manifest abuse of discretion.’[21] Joinder of charges must not be employed in such a way so as to prejudice a defendant. Noble claims the trial court erred in refusing to sever count 3 from the remaining four robbery charges. CrR 4.3(a) permits two or more offenses of similar character to be joined in one trial. Even properly joined offenses may be severed under CrR 4.4(b) if the court determines that severance promotes a fair determination of the defendant’s guilt or innocence of each offense. A defendant seeking severance has the burden of showing that a trial involving multiple counts would be so prejudicial as to outweigh the concern for judicial economy.[22] Joinder of offenses has the potential for prejudice to a defendant if the defendant becomes embarrassed or confounded in presenting separate defenses; if the jury uses the evidence of one of the crimes charged to infer defendant’s guilt on other crimes charged; or if the jury improperly cumulates the evidence of the various crimes charged to find guilt, when if considered separately, it would not.[23] However, there are factors that may be used to mitigate any potential prejudice. These include: the strength of the State’s evidence on each count; the clarity of the defenses on each count; the sufficiency of jury instructions; and the cross-admissibility of the evidence on the offenses if they were tried separately.[24]
Assuming even some small degree of prejudice by trying count 3 with the remaining robbery counts, it was effectively mitigated by the strength of the evidence against the defendant, the clarity of the defenses, and the court’s instructions to the jury.[25] Noble claims that the court did not find that the evidence was cross-admissible and that this is a basis for severance. But a reading of the oral opinion from the court does not bear this out. The court indicated that it did not have to reach the issue of cross-admissibility because any prejudice to Noble was sufficiently eliminated by the mitigating factors. However, the court went on to state that in its estimation, the evidence was likely cross-admissible as well. Noble fails to establish prejudice, and even if he had, it has not been proven that any prejudice outweighs the interest of judicial economy. As stated in Bythrow, `Defendants seeking severance have the burden of demonstrating that a trial involving [a number of] counts would be so manifestly prejudicial as to outweigh the concern for judicial economy.’[26] The conviction and sentence are affirmed.

COLEMAN and COX, concur.

[1] State v. Manussier, 129 Wn.2d 652, 921 P.2d 473 (1996).
[2] The underlying facts of these robberies are known to the parties and amply set out in the respective briefs. Noble has been a heroin addict since his teen years. At the time of trial he was about 50 years old and the record reveals that he is in poor health. The robberies occurred in January of 2000 with the exception of one robbery which took place on February 1, 2000. In each robbery the perpetrator was identified by at least one witness. The perpetrator wore clothing that was described by witnesses and at least one wig, all of which were found at the time of Noble’s arrest.

In carrying out the robberies, Noble placed a dark leather notebook before each bank teller and opened it. Inside there was a handwritten note indicating that it was a hold up. Noble kept his right hand inside his jacket and all the bank tellers believed he had a gun. In at least one instance, the handwritten note indicated he had a gun. In one instance, he said he had a gun. In one of the robberies, Noble approached a teller who immediately recognized him from a prior banking transaction wherein Noble tried to cash a check that did not belong to him using false identification. Surveillance photographs of all five robberies were introduced at trial.

[3] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).
[4] Chapter 9.94A RCW.
[5] State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (1996).
[6] State v. Rivers, 129 Wn.2d 697, 921 P.2d 495 (1996).
[7] State v. Manussier, 129 Wn.2d 652, 921 P.2d 473 (1996).
[8] Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000).
[9] State v. Wheeler, 145 Wn.2d 116, 124, 34 P.3d 799 (2001).
[10] State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
[11] State v. Ben, 114 Wn. App. 148, 150, 55 P.3d 1169 (2002).
[12] State v. Acheson, 75 Wn. App. 151, 155, 877 P.2d 217 (1994).
[13] State v. Calderon, 102 Wn.2d 348, 351-52, 684 P.2d 1293 (1984); State v. Bushnell, 38 Wn. App. 809, 811, 690 P.2d 601 (1984).
[14] In Ollens, the defendant was sentenced under the POAA. One of his predicate strikes was a 1971 Michigan conviction for robbery. Ollens was 17 when he committed this crime and he was transferred to adult court under Michigan’s decline statute. After being declined to adult court, Ollens pleaded guilty while he was still 17. This court found that Ollens’ Michigan conviction did not make him an offender under former RCW 9.94A.030(27), reasoning that if the Legislature intended to include out-of-state convictions for juveniles pursuant to procedures comparable to RCW 13.40.110 it could have done so. The court held that if a defendant was less than 18 years of age when he was convicted of a prior offense, he was an offender only if transferred to adult court pursuant to RCW 13.20.110.

The difference between the Ollens case and the one here is reasonably clear. Ollens was not 18 when he was charged and convicted of his crime, as well as having committed the crime out of state. Here, Noble was 18 years of age when he was charged and convicted and the crime was committed in this state.

[15] State v. Cruz, 88 Wn. App. 905, 946 P.2d 1229 (1997).
[16] State v. Head, 136 Wn.2d 619, 623, 964 P.2d 1187 (1998).
[17] Head, 136 Wn.2d at 624-25.
[18] State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001).
[19] State v. Wade, 138 Wn.2d 460, 979 P.2d 850 (1999).
[20] State v. Freeburg, 105 Wn. App. 492, 20 P.3d 984 (2001).
[21] State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990); see also State v. Hernandez, 58 Wn. App. 793, 797, 794 P.2d 1327 (1990) (citing State v. Watkins, 53 Wn. App. 264, 269, 766 P.2d 484
(1989)).
[22] Bythrow, 114 Wn.2d at 718.
[23] Bythrow, 114 Wn.2d at 718.
[24] State v. Sanders, 66 Wn. App. 878, 885, 833 P.2d 452 (1992).
[25] State v. Russell, 125 Wn.2d 24, 62-64, 882 P.2d 747 (1994) (citing State v. Smith, 74 Wn.2d 744, 754-55, 446 P.2d 571 (1968), vacated in part, 408 U.S. 934 (1972), overruled on other grounds by State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975)). In its oral opinion, the criminal presiding court indicated that the evidence was strong on multiple counts and the likelihood that the jury would use other charges as a basis for determining the defendant’s guilt on other charges is minimized. Further, the court noted that it would not be difficult for the jury to keep the evidence and the testimony of the five robberies separate. The trial court agreed at the time the motion for severance was renewed. Finally, both the criminal presiding court and the trial court indicated there were sufficient jury instructions to instruct the jury about separating each count and each defense.
[26] Bythrow, 114 Wn.2d at 718.