STATE v. ZAPIEN, 19845-6-III (Wash.App. 3-5-2002)

No. 19845-6-III.The Court of Appeals of Washington, Division Three. Panel Six.
Filed: March 5, 2002. UNPUBLISHED OPINION.

Appeal from Superior Court of Yakima County, No. 001012565, Hon Michael Schwab, December 8, 2000, Judgment or order under review.

Counsel for Appellant(s), Paul J. Wasson II, Attorney At Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.

Counsel for Respondent(s), Lauri M. Boyd, Deputy Prosecutor, Yakima Co Crths-Appel Div, 128 N 2nd St Ste 211, Yakima, WA 98901-2631.

SCHULTHEIS, J.

Bobby Ray Zapien was charged by information with possession of stolen property, intimidating a witness (domestic violence), attempting to elude a police vehicle, and unlawful possession of a firearm. Before trial, he unsuccessfully moved to sever the first two counts from the second two counts. The jury reached a verdict of guilty on all four charges. On appeal, Mr. Zapien contends the trial court erred in refusing to sever the first two counts, in admitting evidence of prior bad acts, and in including a jury instruction that did not correspond exactly to the crime charged in the information. He also contends the evidence was insufficient to support his convictions for possession of stolen property and intimidating a witness. Because we find that the trial court did not abuse its discretion and that the evidence supports the necessary elements of the charged crimes, we affirm.

FACTS
On June 29, 2000, Mr. Zapien’s wife Christina arrived at her apartment in Yakima County and found it full of “stuff” that she did not own Report of Proceedings (RP) at 104. This stuff included a tool chest, a wind surfboard, a stereo, and other items. She also found a Rototiller in her husband’s truck parked in the yard. Ms. Zapien talked to Mr. Zapien on the telephone and told him to get the items out of her apartment or she would call the police. He told her that if she did, he would kill her. Due to a history of threats and violence, Ms. Zapien was afraid. She called her aunt, who told her to call the police while the aunt came to pick up Ms. Zapien and her infant daughter. Police officers removed more than two pickup loads of the items from the apartment. Early the next morning, Mr. Zapien came to the aunt’s house and pounded on the door and a window. The aunt called 911, but Mr. Zapien was gone when police responded.

Police investigators soon established that the items seized from the Zapiens’ apartment had been stolen from storage units within the past week. Two suspects had been seen removing some of the items from the storage units and placing them in a truck. Witnesses reported the truck’s license plate to the police, who discovered that it was licensed to Robert B. Zapien, Mr. Zapien’s uncle. The same truck was parked in the Zapiens’ yard with the Rototiller and was identified by Ms. Zapien as her husband’s.

The police began looking for Mr. Zapien to question him about the stolen property. On July 12, 2000, Ms. Zapien called the police and gave them the address of a house where her husband was staying. Deputy Sheriff Scott Swallow took up surveillance at the house. On the afternoon of July 21, he saw a man he identified as Mr. Zapien leave the house and drive away in a brown Toyota Celica. Deputy Swallow followed in a marked police car and activated his emergency lights and siren. Mr. Zapien accelerated and the deputy chased him for over 22 miles. During the high-speed chase, Mr. Zapien threw a “long shiny object” from the car’s passenger window. RP at 286. A broken “bong” was later discovered in that area. RP at 295. Eventually, Mr. Zapien stopped and jumped from the car, a gun flying from his body and landing on the road. The gun was loaded and cocked.

Mr. Zapien was charged with one count of first degree possession of stolen property (RCW 9A.56.150; RCW 9A.56.140(1)), one count of intimidating a witness — domestic violence (RCW 9A.72.110(1)(d); RCW 10.99.020), one count of attempting to elude a police vehicle (RCW 46.61.024), and one count of second degree unlawful possession of a firearm (RCW 9.41.040(1)(b)(i)). The information was later amended to add a firearm enhancement to the eluding count. Before trial, Mr. Zapien moved to sever the unlawful possession of a firearm and attempt to elude charges from the possession of stolen property and intimidation charges The trial court denied the motion, finding that the offenses had a continuing connection and relationship due to the length of time it took to find Mr. Zapien.

At trial, the State presented the testimony of Ms. Zapien, her aunt, police officers, and valuation experts. Over a defense objection, the aunt described bruises and other injuries Mr. Zapien had inflicted on Ms Zapien over the course of their marriage. The defense offered no witness testimony and Mr. Zapien did not take the stand. During exceptions to the jury instructions, Mr. Zapien noted that the amended information described count 4 as follows:

On or about July 21, 2000, in the State of Washington, after you were convicted in the State of Washington, of Third Degree Assault on December 13, 1995, you owned or had in your possession or control a firearm and your right to possess a firearm had not been restored

Clerk’s Papers (CP) at 58. The jury instructions on count 4, however, did not direct the jury to consider whether Mr. Zapien’s right to possess a firearm had been restored. Mr. Zapien moved to include that language as an element of the offense so that the instruction was consistent with the information. Finding that restoration of the right to possess a firearm is an affirmative defense rather than an element to be disproved by the State, the court overruled the objection. The jury found Mr. Zapien guilty of all charges and he now appeals.

SEVERANCE
Mr. Zapien first contends the trial court erred in denying his motion to sever counts 1 and 2 (first degree possession of stolen property and intimidating a witness) from counts 3 and 4 (attempting to elude a police vehicle and second degree unlawful possession of a firearm). He contends the trial court abused its discretion because it did not consider the factors for determining prejudice found in State v. Watkins, 53 Wn. App. 264, 268-69, 766 P.2d 484 (1989).

Joinder of more than one offense is appropriate when the offenses are based on a series of acts connected together. CrR 4.3(a)(2). Mr. Zapien’s charges are connected to the possession of the stolen property: he allegedly threatened his wife to prevent her from notifying the police about the stolen property, he presumably attempted to elude arrest for that offense, and he carried a firearm in his attempt to elude. He does not argue that the offenses were improperly joined initially. But even properly joined offenses may be severed if the trial court determines that severance will promote a fairer determination of the defendant’s guilt or innocence on each offense. State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990); CrR 4.4(b). A defendant may be prejudiced by joinder if the presentation of separate defenses is confusing or if the evidence of the various crimes tends to cumulate, leading to an inference of a criminal disposition. State v. Russell, 125 Wn.2d 24, 62-63, 882 P.2d 747
(1994).

It is the defendant’s burden to prove that the trial court manifestly abused its discretion in refusing to sever offenses. Watkins, 53 Wn App. at 269. Mr. Zapien does not specify how joinder prejudiced him, beyond stating that severance would have promoted a fairer determination of his guilt or innocence. Because a motion to sever under CrR 4.4(b) focuses on potential prejudice, id. at 268 (citing State v. Gatalski, 40 Wn. App. 601, 606, 699 P.2d 804 (1985)), Mr. Zapien does not meet the necessary burden of persuasion. Rather, he contends the trial court abused its discretion simply by failing to consider on the record the factors in Watkins, 53 Wn. App. at 269, for determining whether the potential for prejudice requires severance: (1) the strength of the State’s case on each count, (2) the jury’s ability to compartmentalize the evidence, (3) whether the trial judge instructed the jury to decide each count separately, and (4) the cross-admissibility of the evidence on each count. See also State v. Kalakosky, 121 Wn.2d 525, 537, 852 P.2d 1064 (1993). While helpful, consideration of these factors on the record is not required. Review of the record on appeal is sufficient. See, e.g., id.; Bythrow, 114 Wn.2d at 718.

Some details of the offenses charged here would not have been admissible at separate trials on each count. However, cross-admissibility alone is not determinative of prejudice. Bythrow, 114 Wn.2d at 721. Our primary concern is whether the jury could be reasonably expected to keep the testimony and evidence of each offense separate. Id.; Kalakosky, 121 Wn.2d at 537. In this case, the distinct nature of the separate offenses and the substantial evidence to support each crime convince this court that the jury had no difficulty compartmentalizing the evidence Id Further, the trial court instructed the jury to consider each count separately and not to let the verdict on one count control the verdict on any other.

Because the concern for judicial economy outweighed any prejudicial effect of joining the four counts, the trial court did not abuse its discretion in refusing to sever. Russell, 125 Wn.2d at 63.

Admission of Prior Bad Acts
Mr. Zapien next contends the trial court erred (1) in allowing Ms Zapien’s aunt to testify that Mr. Zapien had assaulted his wife during their marriage, and (2) in allowing Deputy Swallow to testify that Mr Zapien had thrown drug paraphernalia out the car window. Defense counsel objected to the aunt’s testimony for inadequate foundation and objected to the deputy’s testimony as irrelevant. On appeal, however, Mr. Zapien contends the trial court erred in failing to balance probative value against prejudicial effect under ER 403[1] and in admitting evidence of these other bad acts in violation of ER 404(b).[2] An objection that evidence is prejudicial or irrelevant is not sufficient to preserve appellate review on the basis of ER 404(b). State v. Kendrick, 47 Wn. App. 620, 634, 736 P.2d 1079 (1987); State v. Fredrick, 45 Wn. App. 916, 922, 729 P.2d 56 (1986). Consequently, we do not address Mr. Zapien’s ER 404(b) argument and limit review to the relevance of this testimony.

We review a trial court’s decisions regarding admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245
(1995). Evidence is relevant if it is of consequence to the outcome of the action and makes the existence of a fact more or less probable. State v. Saltarelli, 98 Wn.2d 358, 362-63, 655 P.2d 697 (1982). The aunt’s testimony indicated that Ms. Zapien had reason to fear Mr. Zapien’s threat to kill her if she called the police. Thus, this evidence helped to prove that he intimidated Ms. Zapien. RCW 9A.72.110(1)(d) (a person is guilty of intimidating a witness if, by use of a threat against a current or prospective witness, he or she induces the witness not to report information relevant to a criminal investigation). The trial court found that Deputy Swallow’s information regarding the broken drug paraphernalia, discovered in the area where Mr. Zapien threw an object from his car, was relevant to show the dangerousness of Mr. Zapien’s eluding behavior. Attempting to elude pursuant to RCW 46.61.024 includes the element of driving with “wanton or willful disregard for the lives or property of others.” Consequently, the object thrown from the car may be considered relevant to this charge. Further, the paraphernalia was thrown during a high-speed chase and provides an additional motive for Mr Zapien’s behavior.

Although the introduction of this evidence is prejudicial, it is not unfairly so. On balance, the trial court did not abuse its discretion because the probative value of the evidence outweighed its prejudicial effect.

Elements of Unlawful Possession of a Firearm
In the amended information, count 4 accused Mr. Zapien of unlawfully possessing a firearm while his “right to possess a firearm had not been restored.” CP at 58. The second degree unlawful possession of a firearm instructions, however, did not require the jury to find that Mr. Zapien’s right to possess a firearm had not been restored. His request to include this element in the instructions was denied by the trial court, which found that restoration of the right to possess a firearm was an affirmative defense, not an element. On appeal, Mr. Zapien contends both RCW 9.41.040 and the amended information require the State to prove that his right to possess a firearm had not been restored.

The relevant language of RCW 9.41.040(1)(b)(i) makes it unlawful for any person to own, possess, or have in his or her control any firearm “[a]fter having previously been convicted in this state or elsewhere of any felony.” The elements to be proved beyond a reasonable doubt are (1) previous conviction of any felony, and (2) knowing ownership, possession, or control of a firearm. See State v. Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000) (holding that knowledge is a nonstatutory element of the crime of unlawful possession of a firearm). Proof that the right to possess a firearm has not been restored is not an element of the crime. If unnecessary facts in the information are incorporated into the jury instructions, they become the law of the case and the State assumes the burden of proving the added facts. State v. Rivas, 49 Wn. App. 677, 683, 746 P.2d 312 (1987); State v. McGary, 37 Wn. App. 856, 860, 683 P.2d 1125 (1984). Where, as here, the unnecessary fact is not incorporated into the jury instructions, the State is not required to prove it. Rivas, 49 Wn App. at 683. Consequently, as written, the instructions on second degree unlawful possession are correct statements of the law.

Sufficiency of the Evidence
Finally, Mr. Zapien contends the evidence is insufficient to support his convictions for possession of stolen property and intimidating a witness. He argues the State offered no evidence that he was ever in the apartment where the stolen goods were recovered or that he ever had the goods in his possession. He also contends he could not have intimidated a “witness” because no criminal investigation had been initiated when he allegedly threatened his wife.

A defendant claiming insufficiency of the evidence admits the truth of the State’s evidence and recognizes that all reasonable inferences will be interpreted in the State’s favor. State v. Myers, 133 Wn.2d 26, 37, 941 P.2d 1102 (1997). We ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.

In establishing the elements of a crime, direct evidence is no more valuable than circumstantial evidence. State v. Taylor, 97 Wn. App. 123, 126-27, 982 P.2d 687 (1999).

Possession of stolen property is defined in part as “knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen.” RCW 9A.56.140(1). First degree possession of stolen property involves possession of stolen property exceeding $1,500 in value. RCW 9A.56.150(1). Although Ms. Zapien was prevented by the spousal privilege (RCW 5.60.060) from testifying that her husband admitted placing the stolen property in their apartment, her testimony established by reasonable inference that he knowingly retained, concealed, or disposed of the stolen property there. As she stated, when she threatened to call police if he did not remove the items, he told her he would kill her. She also testified that the stolen Rototiller was in the truck her husband drove. This circumstantial evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Mr. Zapien possessed the stolen property.

A person is guilty of intimidating a witness if, by use of a threat against a current or prospective witness, the person attempts to induce the witness not to report or not to give truthful or complete information relevant to a criminal investigation. RCW 9A.72.110(1)(d). Because he claims there was no criminal investigation at the time he allegedly threatened his wife, Mr. Zapien contends RCW 9A.72.110 does not apply This argument was rejected in State v. James, 88 Wn. App. 812, 815-17, 946 P.2d 1205 (1997), wherein the court noted that RCW 9A.72.110(1)(d) criminalizes threats made to induce a person not to report a crime, including threats made before an investigation is commenced. At any rate, the testimony of police officers at Mr. Zapien’s trial indicates that the investigation into the theft of items from the storage units had commenced before Mr. Zapien threatened his wife.

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.

KURTZ, C.J. and SWEENEY, J., concur.