No. 21765-5-III.The Court of Appeals of Washington, Division Three. Panel Four.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 02-1-02005-5. Judgment or order under review. Date filed: 01/17/2003. Judge signing: Hon. Robert D Austin.
Counsel for Appellant(s), Dustin Douglass Deissner, Deissner Law Firm PLLC, 1707 W Broadway Ave, Spokane, WA 99201-1817.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
SCHULTHEIS, J.
Kelley Mynatt was arrested for driving his motorcycle under the influence of intoxicants. The arresting officers interpreted several statements made by Mr. Mynatt as threats. He was charged and convicted of intimidating a public servant, harassment, and driving under the influence. On appeal, he contends the harassment and intimidation convictions constitute double jeopardy, the jury instructions were inadequate, prosecution witnesses were improperly permitted to identify him as a gang member, and he had ineffective assistance of counsel. We find no error and affirm.
Facts
Very early in the morning on July 20, 2002, Officer Robert Swan of the Airway Heights police department saw a man on a Harley Davidson motorcycle exit from a tavern parking lot and sharply accelerate down the highway. Officer Swan stopped the motorcycle for speeding and immediately noticed the odor of intoxicants emanating from its driver, Mr. Mynatt. When asked why he was speeding, Mr. Mynatt responded that he was an investigator for the Washington State attorney general. Mr. Mynatt is actually a private investigator.
Officer Max Minchew soon arrived as backup. When Officer Swan asked Mr. Mynatt if he would be willing to perform field sobriety tests, he responded, “You don’t want to do that, you’re going to open up a whole can of worms.” Report of Proceedings (RP) at 13. Officer Swan asked Mr. Mynatt what he meant by that statement and he answered that he was affiliated with the Hell’s Angels and Banditos motorcycle gangs. According to Officer Swan, Mr. Mynatt then angrily stated, “If you f * * * with my bike, you’re f * * * ing with me. I’m going to take it personally. This bike belongs to Big Phil and if you f * * * with it, or hurt my bike, I will call Big Phil and he will come and see you.” RP at 13. Big Phil is Phil Elsworth, known by Officer Swan as an enforcer with the Hell’s Angels.
Officer Swan explained to Mr. Mynatt that the sobriety tests were strictly voluntary. Although Mr. Mynatt agreed to cooperate, he did poorly on the sobriety tests and he was arrested for driving under the influence of intoxicants. At this point he shouted to the officer, “Your life just changes now, buddy, you’re playing with the big boys now.” RP at 22. When asked what he meant by that, Mr. Mynatt stated, “You figure it out.” RP at 22. He was handcuffed and placed in the patrol vehicle while Officer Swan waited for a tow truck to impound the motorcycle. During this waiting period, Mr. Mynatt warned Officer Swan, “I am not going to be in jail for too long and when I get out, I am going to pay you a visit.” RP at 23. He also stated, “My boys will take care of you.” RP at 24. Officer Minchew later testified that he heard these statements and additionally heard Mr. Mynatt state that Mr. Mynatt’s friends from the `Sprague clubhouse’ would pay Officer Swan a visit. RP at 69. The officers knew there was a Hell’s Angels clubhouse on Sprague.
The tow company had some difficulty loading the motorcycle and had to call for another truck with different equipment. Before the motorcycle was successfully impounded, the officers left the scene with Mr. Mynatt. Later, Mr. Mynatt complained that the motorcycle was damaged when Officer Swan allowed it to fall over.
Mr. Mynatt’s alcohol breath analysis test at the county jail showed readings of .173 and .178. He was charged by amended information with intimidating a public servant (RCW 9A.76.180), harassment (RCW 9A.46.020(2)(b)), and driving under the influence of intoxicating liquor or drugs (RCW 46.61.502). At trial, he unsuccessfully objected to Officer Swan’s testimony regarding information on a police database that Mr. Mynatt was a Hell’s Angels motorcycle gang member. Mr. Mynatt denied all statements made to Officer Swan other than a warning that Big Phil — the original owner of the motorcycle and to whom he was still paying for its purchase — would be angry that Officer Swan damaged it. The jury found Mr. Mynatt guilty of all charges, but decided by special verdict that his threats did not include a threat to kill. He was sentenced to a total of 365 days, with 363 days suspended for 24 months.
Double Jeopardy
Mr. Mynatt first contends his convictions for harassment and intimidation of a public servant violate the double jeopardy provisions of the federal and state constitutions. This issue was not raised at trial but is addressed here because it concerns a manifest error involving a constitutional right. RAP 2.5(a)(3); State v. Adel, 136 Wn.2d 629, 632-33, 965 P.2d 1072 (1998).
Both the fifth amendment to the United States Constitution and article I, section 9
of the Washington Constitution guarantee that no person will be punished multiple times for the same offense. State v. Baldwin, 150 Wn.2d 448, 453-54, 78 P.3d 1005 (2003); Adel, 136 Wn.2d at 632. When conduct violates two or more criminal statutes, we ask whether the legislature intended to impose punishment for that conduct under both statutes. Baldwin, 150 Wn.2d at 454. If two charges constitute the same offense, then one must be dismissed to avoid double jeopardy. In re Pers. Restraint of Percer, 150 Wn.2d 41, 49, 75 P.3d 488 (2003).
In determining whether two charges are the same offense, we first look at the language of the statutes to establish whether the legislature expressly intended multiple punishments. Id. Here, the statutes for intimidating a public servant (RCW 9A.76.180) and criminal harassment (RCW 9A.46.020) neither authorize nor prohibit multiple punishments, although RCW 9A.46.020(3) provides that nothing in the harassment statute precludes the victim from seeking any other remedy available.
Because the statutes themselves do not expressly authorize or prohibit cumulative punishment, we next apply the `same evidence’ test to help determine legislative intent through statutory construction. Baldwin, 150 Wn.2d at 454; Percer, 150 Wn.2d at 50. Under this test, two offenses are the same for double jeopardy purposes if they are identical in fact and law. Baldwin, 150 Wn.2d at 454; Adel, 136 Wn.2d at 633. `If each offense includes an element not included in the other, and proof of one offense would not necessarily also prove the other, the two crimes are not identical in law, and multiple convictions may stand.’ Percer, 150 Wn.2d at 50
(citing State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995)).
Both the harassment charge and the intimidating a public servant charge are essentially the same in fact because they arose from the same acts or conduct of Mr. Mynatt. See Percer, 150 Wn.2d at 50. However, they are not identical in law. Each offense has an element not contained in the other. Criminal harassment requires a knowing threat, `[w]ithout lawful authority,’ to cause bodily injury or other specified damage to another person, and the threat must place the person threatened in reasonable fear that the threat will be carried out. RCW 9A.46.020. Intimidating a public servant requires use of a threat in an attempt to influence a public servant’s official action. RCW 9A.76.180. The elements of (1) a threat without lawful authority[1] and (2) placing a person in reasonable fear are necessary to prove criminal harassment, but not to prove intimidating a public servant. State v. Alvarez, 128 Wn.2d 1, 13, 904 P.2d 754
(1995). Use of a threat to influence the actions of a public servant is a necessary element in a conviction for intimidating a public servant, while this element is not used to prove criminal harassment. Consequently, under the same evidence test, the two offenses are not identical in law.
Even if the two offenses do not satisfy the same evidence test, they may still be considered the same if there is clear evidence that the legislature did not intend both statutes to punish the same conduct. Baldwin, 150 Wn.2d at 455-56; Percer, 150 Wn.2d at 50-51. By examining the statutes’ historical development, location in the criminal code, or their differing purposes, we seek to determine whether the legislature intended multiple punishments for the same act. Baldwin, 150 Wn.2d at 456; Percer, 150 Wn.2d at 51. In the case of criminal harassment and intimidating a public servant, although both statutes employ very similar definitions of threat,[2] the purposes behind enactment of the statutes — especially the narrow focus of the intimidation statute — indicate that they were not intended to be treated as the same offense.
RCW 9A.76.180 protects public servants from threats of harm based on the discharge of their official duties. State v. Stephenson, 89 Wn. App. 794, 803, 950 P.2d 38 (1998). It also helps deter intimidation and threats that lead to corrupt decision making. Id. at 803-04. Criminal harassment under RCW 9A.46.020, on the other hand, protects all persons who are placed in reasonable fear that a threat of physical harm or damage will be carried out. Its purpose is to protect against invasions of personal privacy occasioned by acts `designed to coerce, intimidate, or humiliate the victim.’ RCW 9A.46.010. Nothing in the history of the two statutes indicates that the legislature intended to authorize only one punishment for both offenses. Consequently, the double jeopardy provisions of the federal and state constitutions are not violated by convictions for intimidating a public servant and criminal harassment arising from the same conduct.
Jury Instructions
Mr. Mynatt next assigns error to the trial court’s use of or failure to use various jury instructions. He took no exception to the instructions at trial. Consequently, we will address only those instructions that implicate manifest errors involving constitutional rights. RAP 2.5(a)(3); State v. Roberts, 142 Wn.2d 471, 500, 14 P.3d 713 (2000); State v. Scott, 110 Wn.2d 682, 685-87, 757 P.2d 492 (1988). Even a manifest constitutional error will not help a defendant if the error is harmless beyond a reasonable doubt. Scott, 110 Wn.2d at 687. Those jury instructions that are properly examined on appeal will be reviewed de novo to determine whether they accurately state the law without misleading the jury. State v. Chino, 117 Wn. App. 531, 538, 72 P.3d 256
(2003). We will find instructions sufficient if they are supported by substantial evidence, allow the parties to argue their theories, and when read together, properly inform the jury of applicable law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002).
I. True threat. Instructions 7, 10, and 12 are challenged by Mr. Mynatt on the basis that they allow the jury to convict without proof of a `true threat,’ a concept examined in State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001). A `true threat’ is a statement made in such a context that a reasonable person would foresee that the statement would be interpreted as representing a serious intent to inflict bodily harm on the person threatened. Id.; see also State v. J.M., 144 Wn.2d 472, 477-78, 28 P.3d 720 (2001). Generally, statutes such as RCW 9A.46.020 and RCW 9A.76.180, which criminalize pure speech, must be interpreted with the First Amendment clearly in mind. J.M., 144 Wn.2d at 477. However, `true threats’ are not protected speech under the First Amendment. Id.
Instructions 7 and 10 paraphrase RCW 9A.46.020(1) and state that in order to find Mr. Mynatt guilty of harassment the jury must find he knowingly threatened another person and that his words or conduct placed the person threatened in reasonable fear that the threat would be carried out. Mr. Mynatt contends the instructions leave out an element essential to `true threat’: the requirement that Mr. Mynatt could foresee that his statements would be interpreted as serious intentions to harm Officer Swan. He appears to argue that the element of `knowingly’ threatening injury must be read to mean that the person making the threat knows or should know that his or her conduct will be interpreted as threatening. If Mr. Mynatt is correct that the instruction omits an element of the crime of harassment, then the error would be manifest and constitutional and could be addressed on appeal if not harmless. Scott, 110 Wn.2d at 688
n. 5.
In construing the `knowing’ element of the criminal harassment statute, the Supreme Court in J.M., 144 Wn.2d at 481, concluded that `under RCW 9A.46.020(1)(a)(i), the defendant must subjectively know that he or she is communicating a threat, and must know that the communication he or she imparts directly or indirectly is a threat of intent to cause bodily injury to the person threatened or to another person.’ J.M. found that this understanding of the term `knowingly’ comports with the statute’s plain language and with the definition of the term found in RCW 9A.08.010(1)(b)(i) (a person `acts knowingly . . . when . . . he is aware of a fact, facts, or circumstances or result described by a statute defining an offense’).[3] But a defendant’s subjective knowledge that he or she is communicating a threat is not the same as a defendant’s subjective knowledge that the threat will be interpreted by the victim as a serious intention to harm. The statute requires only that the defendant know he or she is communicating a threat to harm another person or another person’s property, and that the victim is thereby put in reasonable fear that the threat will be carried out. RCW 9A.46.020.
The defendant’s ability to foresee that his or her threat to cause bodily injury will be taken seriously by the victim is not an element of criminal harassment. RCW 9A.46.020. Accordingly, the trial court’s failure to include this concept as an element of harassment was not error and did not constitute manifest constitutional error preserved for appeal. Scott, 110 Wn.2d at 690 (due process is usually satisfied when the jury is informed of all the elements of an offense and is instructed that each element must be established beyond a reasonable doubt).
II. Intimidating a public servant. Mr. Mynatt next assigns error to the instruction on intimidating a public servant. He contends the instruction allowed the jury to convict even if he could not have influenced the police officers’ decisions. In particular, he argues that Officer Swan had a duty to safely tow his motorcycle, so no threat could have influenced the officer’s decision or official action in having the motorcycle towed.
Instruction 8 states that in order to convict Mr. Mynatt of intimidating a public servant, the jury must find beyond reasonable doubt that he, by use of a threat, attempted to influence a public servant’s decision or other official action. Neither RCW 9A.76.180 nor instruction 8 requires the jury to find that Mr. Mynatt actually influenced a decision or official action, only that he attempted to do so. Mr. Mynatt’s insistence that a person cannot influence a public servant who is required by his or her position to take official action is immaterial. Because instruction 8 does not exclude an element or exhibit any other constitutional defect, the alleged error is not preserved for appeal. Scott, 110 Wn.2d at 688.
III. Threat to kill. Mr. Mynatt’s final challenge to the jury instructions pertains to the sufficiency of the evidence to support instruction 20, which states that if the jury finds Mr. Mynatt guilty of harassment, it must then complete the special verdict form indicating whether the threat was a threat to kill. Because Mr. Mynatt failed to take exception to this instruction, it became the law of the case, and he cannot challenge the sufficiency of the evidence to support it for the first time on appeal. State v. Singleton, 9 Wn. App. 399, 409, 512 P.2d 1119 (1973). At any rate, Officer Swan’s testimony that he was afraid that Mr. Mynatt was threatening to have him killed is sufficient to support an instruction on threat to kill.
Admissibility of Evidence
At trial, Officers Swan and Minchew were allowed to testify over objection that the police database identified Mr. Mynatt as a Hell’s Angels `associate’ or gang member. RP at 36. Mr. Mynatt contends the trial court violated ER 404(b) by admitting this evidence of prior bad acts that was highly prejudicial. However, he did not object on the basis of ER 404(b) at trial. He argued instead that the information from the police database was hearsay. Errors predicated on ER 404(b) are not of constitutional magnitude and therefore may not be raised for the first time on appeal. RAP 2.5(a); State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984). We review the trial court’s decision to admit evidence of prior bad acts for abuse of discretion. State v. Barragan, 102 Wn. App. 754, 758, 9 P.3d 942 (2000). In this case, the trial court was never asked to exercise its discretion to determine the admissibility of the evidence under ER 404(b). Consequently, this court has nothing to review.
Assistance of Counsel
Finally, Mr. Mynatt contends trial counsel was ineffective. He argues that counsel prejudiced his defense by failing (1) to pursue proper jury instructions on intimidating a public servant and true threat; (2) to argue double jeopardy; and (3) to call witnesses who would testify that the motorcycle was damaged, thereby impeaching the testimony of the officers.
To show ineffective assistance of counsel, the defendant must demonstrate that counsel’s representation fell below an objective standard of reasonableness and that this deficient representation prejudiced the defense. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We maintain a strong presumption that counsel’s representation was effective. State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993). The defendant carries the burden to show, based only on the record, sufficient basis to rebut this presumption of adequate assistance. McFarland, 127 Wn.2d at 337. If counsel’s conduct can be characterized as reasonable trial strategy or tactics, we will not find ineffective assistance of counsel. State v. Soonalole, 99 Wn. App. 207, 215-16, 992 P.2d 541 (2000). As a mixed question of law and fact, ineffective assistance of counsel is reviewed de novo. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
Mr. Mynatt’s contentions that trial counsel should have proposed instructions on intimidating a public servant and true threat and should have moved for dismissal of one of the charges on the basis of double jeopardy are without merit. As discussed above, the court’s jury instructions were supported by the evidence, properly stated the relevant law, and required the jury to find each element of harassment and intimidating a public servant beyond a reasonable doubt. As additionally discussed above, these two charges did not implicate double jeopardy. It follows that defense counsel’s failure to pursue what would have been futile arguments was not unreasonable and was more likely a sound trial tactic.
Mr. Mynatt’s additional claim that witnesses should have been called to testify that the motorcycle was damaged is unsupported by the record. He fails to submit affidavits from these alleged witnesses and did not move for additional evidence with his opening brief. See State v. Gladden, 116 Wn. App. 561, 569, 66 P.3d 1095 (2003). Consequently, he does not meet his burden to show that these witnesses would have impeached the testimony of the officers or that defense counsel erred in failing to call them to testify. Because he fails to show that trial counsel’s representation fell below an objective standard of reasonableness, he fails to prove ineffective assistance of counsel. McFarland, 127 Wn.2d at 334-35.
Affirmed.
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.
KATO, A.C.J. and SWEENEY, J., concur.
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