No. 35146-3-II (Consolidated with No. 35153-6-II), No. 35153-6-IIThe Court of Appeals of Washington, Division Two.
Filed: June 3, 2008
UNPUBLISHED OPINION
ORDER GRANTING MOTION FOR RECONSIDERATION AND AMENDING OPINION
ARMSTRONG, J.
The unpublished opinion in this matter was filed on April 8, 2008. Upon the motion of the appellant for reconsideration, it is hereby
ORDERED that the appellant’s motion for reconsideration is hereby granted, and the opinion previously filed on April 8, 2008, is hereby amended as follows:
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III. Same Criminal Conduct
Howell argues that the trial court erred in calculating his offender score because, under RCW 9.94A.589, his convictions of intimidating a witness and second degree assault encompass the same criminal conduct: firing multiple shots at Pelt. But Howell waived this claim when he affirmatively stipulated that the offender score was correct. State v. Nitsch, 100 Wn. App. 512, 521-22, 997 P.2d 1000 (2000) (approved in In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 875, 50 P.3d 618 (2002)). Because of this stipulation, the trial court did not make a finding as to whether the assault and intimidation convictions constituted the same criminal conduct; because Howell waived the issue, we do not further consider it.
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See Goodwin, 146 Wn.2d at 875.
Affirmed.
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III. Same Criminal Conduct
Howell argues that the trial court erred in calculating his offender score because his convictions of intimidating a witness and second degree assault encompass the same criminal conduct: firing multiple shots at Pelt. We review the trial court’s decision on this matter for abuse of discretion or misapplication of the law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
Two or more crimes constitute the same criminal conduct if they victimize the same person, occur at the same time and place, and involve the same criminal intent. RCW 9.94A.589(1)(a). Here, the assault and intimidation crimes occurred at the same time and place and victimized the same person, Pelt, so our inquiry focuses on the extent to which Howell’s criminal intent, objectively viewed, changed from one crime to the next. In re Connick, 144 Wn.2d 442, 459, 28 P.3d 729 (2001) (citing State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987)). In considering this, we look at multiple factors: how intimately related the crimes are, whether the criminal objective changed substantially between the crimes, and whether one crime furthered the other. State v. Burns, 114 Wn.2d 314, 318, 788 P.2d 531
(1990).
On the evidence, it is impossible to distinguish any specific shots as having been fired with an intent to assault, as opposed to intimidate, Pelt. See State v. Porter, 133 Wn.2d 177, 184, 942 P.2d 974 (1997) (two counts encompassed “same criminal conduct” because defendant’s criminal intent could not be segregated into distinct present and future intents to commit criminal activity) (cited in Haddock, 141 Wn.2d at 113). We therefore cannot presume that Howell’s intent changed from one crime to the next. Moreover, the assault furthered Howell’s goal of preventing Pelt from testifying. See State v. Anderson, 72 Wn. App. 453, 463-64, 864 P.2d 1001 (1994) (same criminal conduct where assault furthered separate crime of escape).
The State, citing Haddock, 141 Wn.2d at 114, argues that the “furtherance test” does not apply to this case because the crimes occurred “literally at the same time.” Br. of Resp’t at 9. But Haddock stands for the opposite proposition to that asserted by the State; it states that where multiple crimes were committed simultaneously, the sentencing court may not require that one further the other in order to treat it as same criminal conduct. See Haddock, 141 Wn.2d at 113-14. Here, the same act accomplished both crimes, and one of the crimes was Howell’s means of accomplishing the other. We therefore conclude that the trial court misapplied the law by counting Howell’s assault and intimidation convictions separately toward his offender score. We remand for resentencing.
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IT IS SO ORDERED.
DATED this ___ day of ___, 2008.
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Qudaffi Howell appeals his convictions of intimidating a witness, two counts of second degree assault, and two drug-related charges. He argues that his counsel was ineffective for not challenging the admissibility of incriminating statements he made to the police. He also challenges the sufficiency of the evidence for the witness intimidation charge and one of the assault charges. Finally, Howell argues that in calculating his offender score, the trial court erred by not ruling that his convictions for intimidating and assaulting the same victim were based on the same criminal conduct. Finding no reversible error, we affirm.
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FACTS I. Background
Christopher Pelt, acting as a confidential informant for the Tacoma Police Department, bought an ounce of crack cocaine from Howell. Pelt was wearing a “wire,” and the police also videotaped the sale. Report of Proceedings (RP) at 197. Afterwards, the police arrested Howell and questioned him at the scene. Howell admitted dealing the drugs and expressed an interest in who had set him up. The State charged Howell with delivery of a controlled substance and possession with intent to deliver.
The court released Howell on bail two days later. A few days after that, Howell and James Reid (Howell’s co-defendant) pulled up in their car next to Pelt, who was in his car waiting at a stoplight. Howell said, “There’s that snitch. I’m going to kill that mother f***er.” RP at 215. Pelt saw a handgun in Howell’s lap, so he “sped off” and managed to lose Howell. RP at 216.
About three weeks later, Pelt was again in his car at an intersection, this time with his girlfriend’s father, Charles Faniel. He saw Howell in another car waving a gun as if to shoot. Pelt sped off with Howell giving chase for 10 or 13 blocks. Believing that he had evaded Howell, Pelt went home with Faniel. But after Pelt left the car and approached his doorway, Howell and Reid drove up and started shooting at the house from the car. Both Pelt and Faniel were frightened. Pelt’s girlfriend, newborn baby, and six-year-old twins were in the residence at the time. After the shooting, the police found bullet holes in the residence’s fence, kitchen window, and kitchen counter, and bullet fragments on the kitchen floor and stairs. All the
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windows in the car that Pelt had been driving had been “blow[n] out,” including a direct shot into the passenger seat where Faniel had been sitting. RP at 686.
II. Trial
On the first day of trial, Howell stipulated that he had been properly advised of his Miranda[1] warnings before talking to the police at his original arrest. But during trial, defense counsel moved to withdraw the stipulation. According to counsel, Howell had told him before trial that he did not remember being given any Miranda warnings, but they decided to stipulate to the statements’ admissibility anyway because Howell’s signature was on an advice of rights form. The Miranda rights form, however, listed Officer Christopher Martin as giving the warnings, and Martin testified at trial that he had not done so. Martin believed that Detective Barry McColeman had read Howell his Miranda rights. The trial court denied Howell’s motion to withdraw the stipulation. Later, McColeman confirmed that he had read Howell his Miranda rights, which Howell acknowledged and waived. The form had been filled out by a third officer, Christopher Travis, who thought Martin had advised Howell of his rights.
The trial court found Howell guilty of delivery of a controlled substance, possession with intent to deliver, second degree assault of Pelt, second degree assault of Faniel, drive-by shooting, and intimidation of a witness. Before sentencing, Howell stipulated to an offender score of five, consisting of the delivery, drive-by, intimidation, and two assault convictions.
ANALYSIS I. Ineffective Assistance of Counsel
Howell argues that his attorney ineffectively represented him by failing to conduct a
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“reasonable investigation” into Howell’s waiver of his Miranda rights. Br. of Appellant at 21. He contends that this mistake led trial counsel to stipulate to the admissibility of his statements to police instead of moving to suppress the statements under CrR 3.5. Had the trial court held a CrR 3.5 hearing, Howell reasons, it would likely have suppressed his incriminating statements because the evidence conflicted as to which officer advised him of his rights.
To show ineffective assistance of counsel, Howell must demonstrate that (1) his attorney’s performance was so deficient that it “fell below an objective standard of reasonableness” and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Brockob, 159 Wn.2d 311, 344-45, 150 P.3d 59 (2006). To establish prejudice, Howell must show from the record a reasonable probability that, but for counsel’s claimed unprofessional errors, the trial result would have differed. Strickland, 466 U.S. at 694. Howell must meet both prongs to satisfy the Strickland
standard. State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56
(1986).
Howell cannot demonstrate prejudice because even without a suppression hearing, the State provided sufficient evidence to prove by a preponderance of the evidence that Howell validly waived his Miranda
rights. See State v. Robtoy, 98 Wn.2d 30, 35-36, 653 P.2d 284 (1982). Detective McColeman testified at trial that he gave Howell his warnings and obtained a valid waiver. Travis’s mistake in listing the wrong officer on the advisement of rights form is not enough to give rise to a reasonable probability that the trial court would have excluded Howell’s statements.
Moreover, even if the trial court had suppressed the statements, Howell has not persuaded
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us that the trial outcome would have differed. Howell’s incriminating statements are mostly related to his drug crimes, and the record contains ample other evidence of Howell’s guilt on those counts. Howell’s only other incriminating statement concerned his interest in who had “set him up,” but there is ample other evidence that Howell knew that Pelt was the “snitch” by the time of the shootings. RP at 215, 413. Because Howell has not shown prejudice, his claim that counsel ineffectively represented him fails.
II. Sufficiency of the Evidence
We review a defendant’s challenge to the sufficiency of the evidence by asking whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Finch, 137 Wn.2d 792, 831, 975 P.2d 967 (1999). In answering this question, we view the evidence in the light most favorable to the State, drawing all reasonable inferences in the State’s favor. State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201
(2006). We consider circumstantial and direct evidence equally reliable State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
A. Assault
Howell argues that the State failed to produce sufficient evidence that he assaulted Faniel because the shooting did not cause Faniel to feel actual apprehension and fear of bodily injury. This argument lacks merit.
The State was not required to prove that Faniel was put in actual apprehension of bodily harm. Washington courts recognize three definitions of criminal assault, and only one requires actual apprehension or fear by the victim. See State v. Stevens, 158 Wn.2d 304, 311,
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143 P.3d 817 (2006) (three definitions are (1) an attempt with unlawful force to inflict bodily injury upon another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm whether or not with intent to inflict or capability of inflicting that harm). Because these definitions are not elements, they are not alternative means and the State need not prove any one of them in particular; the trial court was free to apply whichever definition it chose. State v. Smith, 159 Wn.2d 778, 786, 154 P.3d 873 (2007). The record does not show which definition the trial court used here.
But even if a finding of actual apprehension and fear were necessary, the State produced sufficient evidence of it because Faniel testified that he was “frightened” during the shooting. RP at 684. And his subsequent statement that he did not feel he was in personal danger until “after the fact” does not invalidate this fact. RP at 685. A fact finder could reasonably infer that while the shots were being fired, Faniel was in shock and unable to fully apprehend the danger he was in, but he nonetheless was frightened. Compare with State v. Bland, 71 Wn. App. 345, 355, 860 P.2d 1046 (1993) (apprehension after the fact insufficient where victim was asleep during attack), disapproved on other grounds by Smith, 159 Wn.2d at 786. The assault conviction is supported by sufficient evidence.
B. Intimidation of a Witness
Howell also argues that there was insufficient evidence to find him guilty of intimidating a witness. Howell was charged under RCW 9A.72.110(1)(c), which proscribes the use of a threat against a current or prospective witness in an attempt to induce that person to absent himself from such proceedings. The State argues that the evidence, which established that
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Howell identified Pelt as the “snitch,” threatened to kill him, and shot at him, was sufficient.
Howell challenges the State’s evidence for two elements of intimidation: (1) whether he used a “threat” and (2) whether that threat was for the purpose of inducing Pelt not to testify in the future. His argument fails on both counts. First, shooting a witness’s house and cars can constitute a “threat” where it is an indirect communication of an intent to cause bodily injury in the future. RCW 9A.04.110(26)(a); see
RCW 9A.72.110(3)(a)(ii). Second, the State’s evidence was sufficient to support a reasonable inference that Howell intended to induce Pelt’s absence from future proceedings even though it did not include any statements to Howell to that effect.[2]
The State proved that Howell shot up Pelt’s car and house while Pelt was standing at the front door. A trier of fact could reasonably infer that the shooting was intended to frighten Pelt. The State also proved that three weeks before the shooting Howell called Pelt a “snitch” and said that he was “going to kill” him, all in the context of the drug sale to Pelt and the pending drug charges on which Howell had already been arraigned. See Rempel, 114 Wn.2d at 84 (court considers entire context in which threat was made, including prior relationships). Under these circumstances, the trier of fact could also infer that Howell intended the shooting to intimidate Pelt about testifying against Howell. We conclude that, considering the evidence in the light most favorable to the State and drawing all reasonable inferences in the State’s favor, the evidence was sufficient to support Howell’s conviction for intimidating a witness.
III. Same Criminal Conduct
Howell argues that the trial court erred in calculating his offender score because, under
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RCW 9.94A.589, his convictions of intimidating a witness and second degree assault encompass the same criminal conduct: firing multiple shots at Pelt. But Howell waived this claim when he affirmatively stipulated that the offender score was correct. State v. Nitsch, 100 Wn. App. 512, 521-22, 997 P.2d 1000 (2000) (approved in In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 875, 50 P.3d 618 (2002)). Because of this stipulation, the trial court did not make a finding as to whether the assault and intimidation convictions constituted the same criminal conduct; because Howell waived the issue, we do not further consider it. See Goodwin, 146 Wn.2d at 875.
Affirmed.
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.
HOUGHTON, CJ., and QUINN-BRINTNALL, J., concur.
(1966).
(2007); State v. Rempel, 114 Wn.2d 77, 83, 785 P.2d 1134 (1990) State v. Gill, 103 Wn. App. 435, 444, 13 P.3d 646 (2000).
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