No. 22992-1-IIIThe Court of Appeals of Washington, Division Three. Panel Five.
Filed: April 21, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 02-1-00654-3. Judgment or order under review. Date filed: 04/16/2004. Judge signing: Hon. Craig J. Matheson
Counsel for Appellant(s), James Edward Egan, Attorney at Law, 315 W Kennewick Ave, Kennewick, WA 99336-3827.
Counsel for Respondent(s), Scott Wayne Johnson, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Pl, Kennewick, WA 99336.
Andrew Kelvin Miller, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Pl, Kennewick, WA 99336.
Anita Isabelle Petra, Benton County Prosecutors Office, 7122 W Okanogan Ave Ste G, Kennewick, WA 99336-2341.
SCHULTHEIS, J.
Ronald Fouse stole some goats. At his jury trial, two sheriff’s deputies referred to prior law enforcement contact with Mr. Fouse and his wife. The trial judge declared a mistrial. Mr. Fouse later moved to dismiss the charges, citing double jeopardy and governmental misconduct. He appeals the denial of his motion to dismiss and additionally assigns error to his offender score and cost bill. Finding neither bad faith nor governmental misconduct that would bar a retrial, and further finding no error in the offender score, we affirm the judgment and sentence and modify the cost bill.
Facts
Mr. Fouse and his wife Jean were arrested in June 2002 for the theft of several goats from a goat pen. He was charged by amended information with one count of second degree burglary (RCW 9A.52.030), one count of first degree theft (RCW 9A.56.020(1)(b)), and one count of first degree possession of stolen property (RCW 9A.56.140(1), .150). His case was consolidated with his wife’s for jury trial.
On the first day of testimony in April 2003, the State called Deputy Tom Croskrey of the Benton County Sheriff’s Department. At one point, the prosecutor asked Deputy Croskrey how he knew Ms. Fouse. The deputy answered that he had had contact with her for several years through the sheriff’s department. Both defense attorneys objected and moved for a mistrial. They argued that the deputy alluded to prior acts of misconduct in violation of ER 404(b). The trial court reserved the ruling and told the prosecutor not to ask any more general questions about prior contacts. Later, the prosecutor asked Deputy Croskrey what happened after he transported Mr. Fouse to jail. Defense counsel objected because Mr. Fouse had asserted his constitutional right to silence when he was arrested. The trial court warned the prosecutor not to pursue this line of questioning, adding `We’re bouncing on the edge of a mistrial here already.’ Report of Proceedings (RP) at 154.
The State next called Deputy Jeff Hayter. He testified that when he investigated the theft, he got a description of the goats, `[a]nd at that point decided to look for somebody that I knew had committed a crime like this in the past.’ RP at 166. Defense counsel immediately objected and in a side bar complained that this comment could not be cured, especially after Deputy Croskrey’s reference to past contact with Ms. Fouse. Both defense attorneys moved for a mistrial. After hearing a brief argument, the court stated, `I think we’re sunk, guys,’ and added, `These guys haven’t read their reports, they’re spouting off. Both of the witnesses have been running on beyond the questions. We’ve already gotten in trouble here. I’m going to grant a mistrial.’ RP at 167.
The jury was dismissed. Afterward, examination of Deputy Hayter continued for purposes of the record. He explained that he had worked the graveyard shift the night before he testified, had gotten about three hours of sleep, and had not had a chance to review his report. He also stated he had not been warned to avoid mentioning prior convictions. On cross-examination, however, he admitted he had testified at `[h]undreds’ of trials and knew he was not supposed to refer to a defendant’s criminal history. RP at 170. The trial court commented that Deputy Hayter’s actions in investigating known livestock thieves typified good police work, but could not be revealed to the jury.
In May 2003, Mr. Fouse moved to dismiss for double jeopardy or violation of CrR 8.3. After a hearing, the trial court concluded that Deputy Hayter’s testimony, while `careless,’ did not require dismissal for double jeopardy in light of Mr. Fouse’s failure to show prejudice. RP at 191.
Mr. Fouse was recharged by a second amended information with second degree burglary (RCW 9A.52.030) and second degree possession of stolen property (RCW 9A.56.140(1), .160(1)(a)). Trial began in April 2004 with the jury selection, after which Mr. Fouse decided to plead guilty. At sentencing, Mr. Fouse challenged the State’s computation of his offender score. He argued that the charges of second degree burglary and second degree possession of stolen property constituted the same criminal conduct and should be counted as one crime for the purposes of the offender score. Finding that the intent to steal in the burglary offense was different from the intent to possess stolen property, and further finding that the crimes occurred in two separate times and locations, the court concluded that they were not the same criminal conduct. The convictions were counted separately to reach an offender score of seven.
On April 16, 2004, Mr. Fouse was sentenced to 38 months and was charged attorney fees of $400. The cost bill filed that same day lists attorney fees of $700. This appeal timely followed.
Retrial after a Mistrial
Mr. Fouse first contends the trial court erred in denying his motion to dismiss for double jeopardy and governmental misconduct under CrR 8.3(b). He argues that the misconduct by the prosecution’s witnesses was intentional and jeopardized fundamental constitutional rights. We review the trial court’s denial of a motion to dismiss for abuse of discretion. State v. Gary J.E., 99 Wn. App. 258, 261, 991 P.2d 1220 (2000).
The double jeopardy clauses of the fifth amendment to the United States Constitution and article I, section 9 of the Washington Constitution protect criminal defendants from repeated prosecutions for the same crimes. Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982); State v. Cole, 128 Wn.2d 262, 274 n. 7, 906 P.2d 925 (1995) (Washington’s double jeopardy clause is coextensive with the federal double jeopardy clause and is given the same interpretation). Jeopardy attaches as soon as the jury has been selected and sworn. State v. Juarez, 115 Wn. App. 881, 887, 64 P.3d 83 (2003). Generally, a defendant’s request for a mistrial removes any barrier to further prosecution for the same offenses. United States v. Lewis, 368 F.3d 1102, 1108 (9th Cir. 2004) (double jeopardy does not apply if the defendant sought the mistrial); Juarez, 115 Wn. App. at 888. However, double jeopardy will bar a retrial if the government conduct in question was motivated by bad faith and was intended to goad the defendant into moving for a mistrial or accepting serious prejudice of the defendant’s prospects for an acquittal. Kennedy, 456 U.S. at 676; State v. Rich, 63 Wn. App. 743, 747, 821 P.2d 1269 (1992).
In this case, jeopardy had attached because the jury had been empaneled and testimony had begun. During the State’s case in chief, Deputy Croskrey stated he knew Ms. Fouse from past contacts and Deputy Hayter testified that, after he heard goats had been stolen, he decided to talk to someone who had committed a similar crime. In each instance, defense counsel objected and moved for a mistrial. The prosecutor, on the other hand, argued against dismissal. Consequently, we address whether the State acted in bad faith and with the intent to either provoke a mistrial or to force the defendant to continue under circumstances of serious prejudice. Juarez, 115 Wn. App. at 888.
Mr. Fouse contends the law enforcement witnesses acted in bad faith because they knew from years of experience testifying before juries that they could not mention a defendant’s criminal history or prior contacts with police. The trial court found that Deputy Hayter’s statement was careless rather than made in bad faith. In light of Deputy Hayter’s explanation that he testified after a graveyard shift, three hours of sleep, and no opportunity to review the record, we cannot say that no reasonable trier of fact would agree with the trial court. See State v. Martinez, 121 Wn. App. 21, 30, 86 P.3d 1210 (2004) (abuse of discretion standard). Deputy Croskrey’s statement that he had prior official contact with Ms. Fouse was relatively innocuous in itself and only became prejudicial in the context of Deputy Hayter’s statement. Neither officer clearly acted in bad faith.
Further, Mr. Fouse cannot show that the prosecutor intended the deputies to make statements that would provoke a mistrial or seriously prejudice Mr. Fouse’s chances for acquittal. The prosecutor heeded the trial court’s warnings to avoid questions of prior contacts and of Mr. Fouse’s actions after his arrest. The prosecutor also argued against a mistrial. Under these circumstances, the argument for a finding of prosecutorial bad faith and provocation for a mistrial is not persuasive.
Mr. Fouse also contends dismissal was compelled under CrR 8.3(b) for governmental misconduct. The rule provides that `[t]he court, in the furtherance of justice, . . . may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.’ CrR 8.3(b). Dismissal is an extraordinary remedy that is available only when governmental misconduct, including simple mismanagement, prejudices the defendant and materially affects his or her right to a fair trial. State v. Hanna, 123 Wn.2d 704, 715, 871 P.2d 135 (1994).
The deputies’ references to prior contacts with the Fouses and prior, similar acts of theft represent at least mismanagement of trial testimony. However, because dismissal is an extraordinary remedy, the trial court should resort to it only in truly egregious cases of prosecutorial mismanagement or misconduct. State v. Hoffman, 115 Wn. App. 91, 103, 60 P.3d 1261 (2003). Here, the trial court found that Deputy Hayter’s comment was careless but did not find that the prosecutor was complicit in eliciting the improper comments from the witnesses. Apparently the trial court did not find this to be a truly egregious case of mismanagement or misconduct, although the potential for prejudice was serious enough to warrant a mistrial. The record supports this finding.
Because Mr. Fouse does not prove mismanagement or misconduct sufficient to compel dismissal under CrR 8.3(b), we need not address the rule’s prejudice requirement. We note, however, that the improper statements by the law enforcement officers in the first trial will not affect Mr. Fouse’s ability to receive a fair retrial. See State v. Cochran, 51 Wn. App. 116, 123-24, 751 P.2d 1194 (1988).
Offender Score
Mr. Fouse next contends the trial court erred in counting both the second degree burglary conviction and the second degree possession of stolen property conviction in his offender score. He argues that the two convictions should be treated as one because they constitute the same criminal conduct under RCW 9.94A.589.
Two crimes that require the same criminal intent, involve the same victim, and are committed at the same time and place are deemed to encompass the same criminal conduct and are counted as one offense for the purpose of computing the defendant’s offender score. RCW 9.94A.589(1)(a). This rule is subject to a caveat, however. Both Mr. Fouse and the State fail to address RCW 9A.52.050: the burglary antimerger statute. Since its adoption in 1975, the statute has given `the sentencing judge discretion to punish for burglary, even where it and an additional crime encompass the same criminal conduct.’ State v. Lessley, 118 Wn.2d 773, 781, 827 P.2d 996 (1992). Under the burglary antimerger statute, the trial court here had clear authority to count both the second degree burglary and the second degree possession of stolen property convictions in Mr. Fouse’s offender score. State v. Tresenriter, 101 Wn. App. 486, 495-96, 4 P.3d 145, 14 P.3d 788
(2000).
Pro Se Issues
Mr. Fouse raises two issues in his pro se statement of additional grounds for review. He argues first, that a fenced goat pen is not a `building’ for the purposes of second degree burglary under RCW 9A.52.030; and second, that the prosecutor has committed misconduct in three separate cases against him.
Any person who, with intent to commit a crime against a person or property therein, enters or remains unlawfully in a building other than a vehicle or dwelling is guilty of second degree burglary. RCW 9A.52.030. The statutory definition of a `building’ includes a fenced area. RCW 9A.04.110(5). Consequently, unauthorized entry into a fenced area with intent to commit a crime against a person or property therein satisfies the elements of second degree burglary. State v. Wentz, 149 Wn.2d 342, 350-52, 68 P.3d 282 (2003). Because the goat pen here was a fenced area, the statute applies.
Mr. Fouse’s additional assertion — that the prosecutor has presented witnesses in three separate cases who made `statements to the jury to insure a conviction’ — is both vague and unsupported by the record. Statement of Additional Grounds for Review at 1. A defendant who alleges prosecutorial misconduct bears the burden of establishing improper conduct and prejudice. State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999). Mr. Fouse’s assignment of error does not clearly indicate the nature of the alleged misconduct or the resulting prejudice. Additionally, this court cannot review the record of unrelated proceedings that are not before it on appeal. Mr. Fouse’s pro se assignments of error are accordingly without merit.
Defense Attorney Fees
Although the trial court imposed $400 in attorney fees in Mr. Fouse’s judgment and sentence, the cost bill charged him with $700 in attorney fees. The State offers no explanation for this discrepancy. Accordingly, we conclude that the inconsistency in the cost bill is due to clerical error. Under the authority granted to this court by RAP 12.2 and RCW 2.06.030, we modify the cost bill to conform to the judgment and sentence.
Affirmed; the cost bill is modified to conform to the judgment and sentence.
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.
KURTZ, J. and BROWN, J., concur.