State v. Hyde [Kidnapping and Rape]

STATE of Washington, Respondent,
v.
Gregory Lee Hyde, Appellant.

Court of Appeals of Washington,

Division III

No. 26315-1-III. March 23, 2010.
Reconsideration Denied April 23, 2010.

Shadan Kapri, Senior Deputy Prosecuting Attorney, Stevens County Prosecutor’s Office for Respondent Representing State of Washington.

Gordon R. Stoa, Attorney at Law, Spokane, WA, for Appellant.

Appeal from Stevens Superior Court; Honorable Rebecca M. Baker

JUDICIAL OPINION

BROWN, J.

Gregory L. Hyde appeals his first-degree rape and first-degree kidnapping convictions. His trial was delayed for competency evaluations. While incarcerated, Mr. Hyde communicated with his attorney through “kites.” He asked jail authorities to copy these “kites.” Mr. Hyde contends (1) his speedy trial rights were violated, (2) his attorney-client privilege was violated, and (3) the trial court erred in not granting his late continuance request. Pro se, Mr. Hyde argues he did not consent to a competency evaluation. We find no error, and affirm.

FACTS

The facts derive from the trial court’s unchallenged findings of fact following Mr. Hyde’s motions to dismiss for speedy trial violation and attorney-client privilege violation. Since the court’s findings are unchallenged, they are verities on appeal. State v. Levy, 156 Wash.2d 709, 733, 132 P.3d 1076 (2006).

The State charged Mr. Hyde with first-degree rape and first-degree kidnapping, and arraigned him November 22, 2005. He waived speedy trial until February 6, 2006. On January 18, 2006, defense counsel, Paul Wasson, presented a proposed agreed order for an examination of Mr. Hyde at Eastern State Hospital (ESH). The court inadvertently checked the box related to a sanity evaluation instead of a competency evaluation on the order. The judge, however, “clearly understood that there was an issue of the defendant’s competency to stand trial.” Clerk’s Papers (CP) at 731.

ESH’s evaluation report was filed in August 2006. Then, the court realized the original order for evaluation had not included a request for evaluation as to competency to stand trial. On September 27, 2006, another proposed agreed order was presented by Mr. Wasson. Since competency was not addressed in ESH’s first evaluation, another order for evaluation was necessary. On November 6, 2006, Mr. Wasson again presented a proposed agreed order for mental health evaluation as to competency. The exam was to take place at ESH. This order stayed further proceedings pending the entry of an order of competency.
During this time, Mr. Hyde was sending several “kites” to Mr. Wasson. Kites are blank forms given to inmates in the Stevens County Jail to communicate with jail staff or attorneys. In mid-2006, Mr. Hyde became unhappy with Mr. Wasson’s representation and asked jail staff to provide him with a copy of kites he drafted for Mr. Hyde’s file. Evidently, Mr. Hyde was trying to make a record of his correspondence with Mr. Wasson. Mr. Hyde knew he could contact his attorney by a more confidential manner (i.e., sealed envelopes), but instead chose to use the kite method. Some of the kites were sent to ESH for evaluating Mr. Hyde’s competency and later to the prosecutor. The jail chief was clear that permission was first obtained by Mr. Wasson prior to letting ESH and the prosecutor review the kites.
On January 16, 2007, the court appointed new counsel for Mr. Hyde, Robert Simeone. The court granted Mr. Simeone’s request for time to discuss the competency issue with Mr. Hyde. Although on January 24, Mr. Simeone requested additional competency evaluations, on March 19, 2007, he withdrew all defenses related to competency. On March 26, 2007, the court entered an order of competency; speedy trial expiration date was now April 16, 2007. The court set trial for April 16, 2007.
On April 2, 2007, Mr. Hyde objected to the trial date based on speedy trial expiration. Due to the trial judge’s unavailability, the matter was not heard until April 16, 2007, the morning of trial. The court concluded Mr. Hyde’s speedy trial rights were not violated. On April 13, Mr. Hyde requested a continuance so counsel could better prepare for trial, and agreed to waive his speedy trial argument if the continuance was granted. The continuance motion was also heard and denied on April 16. Mr. Hyde requested discretionary review of the trial court’s denial of his continuance request. A commissioner of this court stayed the proceedings pending a decision. Ultimately, discretionary review was denied. Trial began on May 10, 2007.
The jury found Mr. Hyde guilty as charged. He filed a CrR 8.3(b) motion to dismiss, contending the State violated his attorney-client privilege by providing copies of his kites to Mr. Wasson, ESH for its competency consideration, and eventually to the prosecutor. The court denied the motion, concluding the kites were not privileged. Mr. Hyde appealed.

ANALYSIS

A. Speedy Trial

The issue is whether Mr. Hyde’s speedy trial rights under both CrR 3.3 and the state and federal constitutions were violated.
We review a trial judge’s speedy trial rulings de novo. State v. Carlyle, 84 Wash.App. 33, 35-36, 925 P.2d 635 (1996). As noted, the unchallenged findings of fact are verities on appeal. The standard of review in such a case requires the determination of whether the trial court’s findings support the conclusions of law. State v. Ross, 106 Wash.App. 876, 880, 26 P.3d 298 (2001).
CrR 3.3 generally requires the State to bring an in-custody defendant to trial within 60 days of arraignment; if not, the trial court will dismiss the case with prejudice. CrR 3.3(b)(1)(i),(h). The threshold for a constitutional speedy trial violation, however, is higher than that for a violation of CrR 3.3. State v. Fladebo, 113 Wash.2d 388, 393, 779 P.2d 707 (1989); see also U.S. Const. amend. VI; Wash. Const. art. I, § 22. The constitutional right to a speedy trial is not violated by passage of a fixed time but, rather, at the expiration of a reasonable time. State v. Monson, 84 Wash.App. 703, 711, 929 P.2d 1186 (1997). Courts consider four factors in determining whether a delay in bringing a defendant to trial impairs the constitutional right to the prompt adjudication of criminal charges: “the ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ ” In re Pers. Restraint of Benn, 134 Wash.2d 868, 920, 952 P.2d 116 (1998) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).
Mental incompetence at the time of trial is a bar to trial. RCW 10.77.050. If the trial court has reason to doubt the defendant’s competency to stand trial, the court must order an expert evaluation of the defendant’s mental condition. RCW 10.77.060(1)(a). The “reason to doubt” language “vests a large measure of discretion in the trial judge.” City of Seattle v. Gordon, 39 Wash.App. 437, 441, 693 P.2d 741 (1985). “Defense counsel’s opinion as to the defendant’s competence is a factor that carries considerable weight with the court.” State v. Harris, 122 Wash.App. 498, 505, 94 P.3d 379 (2004). An order for evaluation under RCW 10.77.060(1)(a) automatically stays the criminal proceedings until the court determines that the defendant is competent to stand trial. CrR 3.3(g)(1).
Once initiated, Mr. Hyde’s competency proceedings tolled the time calculations until the trial judge was satisfied Mr. Hyde was competent. Based on the unchallenged findings of fact, on January 18, 2006, Mr. Hyde’s initial attorney secured an agreed competency determination order for Mr. Hyde’s competency evaluation at ESH. ESH’s evaluation was filed on August 30, 2006. During the interim time, neither party requested a hearing for a new trial date. On September 27, 2006, another proposed agreed order was presented by defense counsel, who “represented that he indeed felt his client lacked competency to stand trial.” CP at 733. In December 2006, three competency reports were filed. Defense counsel was replaced and yet another evaluation was requested.
On March 26, 2007, “after making inquiry of counsel and the defendant himself as to defendant’s competency, and being satisfied of defendant’s competency to stand trial, the undersigned [trial judge] entered an Order on Competency.” CP at 738. It was determined that the new expiration date for speedy trial under CrR 3.3 was April 16, 2007. The trial judge then entered an order setting the trial date for April 16, 2007. The matter was stayed per order of this court. Trial promptly commenced once discretionary review was denied.
Based on our record, speedy trial time was tolled to determine whether Mr. Hyde was deemed competent to stand trial. While competency was not initially checked on the evaluation order that oversight was corrected in a subsequent order per the court’s unchallenged findings of fact. The delay was necessary to ensure Mr. Hyde understood the nature of the charges and was competent to stand trial and assist in the nature of his defense as required by our State. State v. Hahn, 106 Wash.2d 885, 894, 726 P.2d 25 (1986). It is clear from the trial court’s unchallenged findings of fact that the court correctly concluded that Mr. Hyde’s right to speedy trial had not been violated under either CrR 3.3 or the United States or Washington Constitutions. “The constitution guarantees a fair trial, not a perfect trial.” State v. Ingle, 64 Wash.2d 491, 499, 392 P.2d 442 (1964). The facts in the record show that occurred here.

B. Attorney-Client Privilege

The issue is whether the trial court erred in denying Mr. Hyde’s CrR 8.3(b) motion to dismiss for violation of the attorney-client privilege. Mr. Hyde contends the kites to his attorney were privileged communication that should not have been provided to ESH and the prosecutor.
We review a trial court’s denial of a motion to dismiss under CrR 8.3(b) for an abuse of discretion. State v. Michielli, 132 Wash.2d 229, 240, 937 P.2d 587 (1997). An abuse of discretion occurs when the trial court’s order or decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. Ryan v. State, 112 Wash.App. 896, 899, 51 P.3d 175 (2002) (citing State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971)).
CrR 8.3(b) provides, “The court, in the furtherance of justice, after notice and hearing, 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.” This rule requires a defendant seeking dismissal to show both (1) that the government entity engaged in arbitrary action or misconduct and (2) that this misconduct “materially affected” the outcome of the case. The trial court found Mr. Hyde met neither prerequisite.
Mr. Hyde relies unsuccessfully on State v. Cory, 62 Wash.2d 371, 382 P.2d 1019 (1963) and State v. Garza, 99 Wash.App. 291, 994 P.2d 868 (2000) to support his argument the trial court abused its discretion in failing to grant his motion to dismiss. In Cory, the Washington State Supreme Court analyzed government intrusion into the attorney-client relationship. Mr. Cory met with his attorney to discuss his case in a private jail room, where the sheriff had secretly installed a microphone. Cory, 62 Wash.2d at 372, 382 P.2d 1019. Ultimately, the Supreme Court set aside the judgment and sentence, and dismissed the charges based on clear prejudice from eavesdropping on confidential information about Mr. Cory’s case and defense strategy. Id. at 377-78, 382 P.2d 1019.
Unlike the facts in Cory, the unchallenged findings of fact show Mr. Hyde knew he could write to his attorney in a confidential manner by sending his communication in a sealed envelope. He chose instead to use the kite method. He then requested the kites be copied by jail staff. And, defense counsel later gave permission for the kites to be provided to ESH and subsequently the prosecutor. Thus, Mr. Hyde has failed to establish governmental misconduct entitling him to dismissal under CrR 8.3(b).
Moreover, to prevail on a CrR 8.3(b) motion to dismiss, a defendant must show how the alleged prejudice “materially affected his or her rights to a fair trial.” Garza, 99 Wash.App. at 295, 994 P.2d 868 (citing City of Seattle v. Orwick, 113 Wash.2d 823, 830, 784 P.2d 161 (1989)). Because Mr. Hyde failed to establish governmental misconduct, we do not elaborate on whether prejudice resulted, but note he fails to show how use of the kites “materially affected” his right to a fair trial. In sum, the trial court did not abuse its discretion in denying Mr. Hyde’s motion for dismissal under CrR 8.3(b).

C. Continuance

The issue is whether the trial court erred in denying Mr. Simeone’s request for a trial continuance. Mr. Hyde contends the court denied him his right to effective assistance of counsel by refusing to grant a continuance on the day of trial.FN1

FN1. Mr. Hyde contends he was denied effective assistance of counsel during Mr. Wasson’s representation as well. To the extent this argument is outside his assignment of error that the court erred in denying Mr. Simeone’s motion for a continuance, we do not reach this contention. See RAP 10.3(a)(4) (an appellant’s assignment of error should be a “concise statement of each error a party contends was made”).

We review the decision whether to grant a continuance for abuse of discretion. State v. Flinn, 154 Wash.2d 193, 199, 110 P.3d 748 (2005). As set forth above, a trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. Id. But, “ ‘[b]ecause claims of ineffective assistance of counsel present mixed questions of law and fact, we review them de novo.’ ” State v. A.N.J., 168 Wash.2d 91, —-, 225 P.3d 956 (2010 WL 314512 at *8) (Jan. 28, 2010) (quoting In re Pers. Restraint of Fleming, 142 Wash.2d 853, 865, 16 P.3d 610 (2001)).
The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to professional standards. Counsel’s failure to live up to those standards will require a new trial when the client has been prejudiced by counsel’s failure. State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995).
Relying on State v. Hartwig, 36 Wash.2d 598, 219 P.2d 564 (1950), Mr. Hyde contends the court should have continued the trial date due to Mr. Simeone’s late appointment. In Hartwig, unlike here, defense counsel only had a few hours to consult with his client in preparing his defense. Mr. Simeone was appointed on January 16, 2007. Trial did not commence until May 10, 2007, almost four months to prepare.
Mr. Hyde argues Mr. Simeone’s unpreparedness resulted in his failure to timely designate an expert witness as a defense witness and to object to hearsay and damaging testimony. Yet, matters that go to trial strategy or tactics do not show deficient performance, and Mr. Hyde bears the burden of establishing there were no legitimate strategic or tactical reasons behind his counsel’s choices. State v. Rainey, 107 Wash.App. 129, 135-36, 28 P.3d 10 (2001). Mr. Hyde must further show his counsel’s deficient performance resulted in prejudice such that “there is a reasonable probability that, but for counsel’s errors, the result of the trial would have been different.” State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996). Courts employ a strong presumption that counsel’s representation was effective. State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). Further, we need not address both prongs if the defendant makes an insufficient showing on one prong. State v. Fredrick, 45 Wash.App. 916, 923, 729 P.2d 56 (1986).
Counsel’s choice of whether to object “is a classic example of trial tactics.” State v. Madison, 53 Wash.App. 754, 763, 770 P.2d 662 (1989). Mr. Hyde fails to show where in the record hearsay and damaging testimony occurred that should have been objected to by defense counsel. Turning to counsel’s alleged failure to timely designate a defense witness, Mr. Hyde fails to persuade this court that the outcome of the trial would have been any different given the evidence of guilt against Mr. Hyde. Given all, Mr. Hyde has failed to show he was denied effective assistance of counsel based on the trial court’s refusal to grant a defense-requested continuance.

D. Additional Grounds

In his statement of additional grounds for review, Mr. Hyde argues pro se that he did not consent to a sanity/competency evaluation and therefore did not waive his right to a speedy trial.
A situation where a defendant may be forced to waive his speedy trial rights is not a trivial event. Michielli, 132 Wash.2d at 245, 937 P.2d 587. Our Supreme Court, “ ‘as a matter of public policy has chosen to establish speedy trial time limits by court rule and to provide that failure to comply therewith requires dismissal of the charge with prejudice.’ ” Michielli, 132 Wash.2d at 245, 937 P.2d 587 (quoting State v. Duggins, 68 Wash.App. 396, 399-400, 844 P.2d 441, aff’d, 121 Wash.2d 524, 852 P.2d 294 (1993)).
The unchallenged findings of fact show defense counsel presented a proposed agreed order for a competency examination. Several months later, another agreed order for evaluation was presented by defense counsel. And, following Mr. Simeone’s appointment another competency evaluation was requested. Based on our record, Mr. Hyde consented to these evaluations which tolled the expiration of the speedy trial time. If Mr. Hyde has information outside this court’s record showing defense counsel acted against his wishes, the appropriate procedure for review would be a personal restraint petition. McFarland, 127 Wash.2d at 335, 899 P.2d 1251.
Affirmed.

WE CONCUR: KULIK, C.J., and KORSMO, J.

See Case HERE

Prosecutor’s Note*  Mr. Hyde appeals this ruling to the Supreme Court of Washington.  The Supreme Court denied review of this case.  Mr. Hyde will remain in prison for the duration of his prison sentence for first-degree kidnapping and rape.

State v. Young [Solicitation to Commit Manslaughter]

STATE of Washington, Respondent,
v.
Charles David Young, Appellant.

Court of Appeals of Washington,

Division III

No. 27188-9-III.

Jan. 14, 2010.

Shadan Kapri, Senior Deputy Prosecuting Attorney, Stevens County Prosecuting Attorney’s Office Representing State of Washington.  

Donald G. Miller, Attorney at Law, Spokane, WA, for Appellant.

Appeal from Stevens Superior Court; Honorable Allen C. Nielson, J.

JUDICIAL OPINION

KULIK, C.J.

Charles Young pleaded guilty to one count of solicitation to commit manslaughter in the first degree-unborn quick child, after attempting to hire someone to kill his unborn child. Mr. Young appeals, asserting that his sentence is unlawful because the terms of confinement and community custody exceed the statutory maximum. We affirm Mr. Young’s conviction.

FACTS

Charles Young had a relationship with S.R.A., a 17-year-old female, for approximately 10 months. S.R.A. became pregnant. Mr. Young told S.R.A. that he did not want to have anything to do with her and the baby. Mr. Young spoke with C.Y. about making his problem “disappear.” Clerk’s Papers (CP) at 6.

C.Y. contacted law enforcement and agreed to introduce Mr. Young to a “hit man” who was actually an undercover police officer. CP at 7. Mr. Young met with the undercover police officer and stated that he did not care what happened to S.R.A., but that he wanted the unborn baby killed. Mr. Young provided the hit man with a photograph of S.R.A., a map to S.R.A.’s house, and a down payment of $1,620. S.R.A. was eight months pregnant at the time Mr. Young planned the attack.
On April 3, 2007, Mr. Young pleaded guilty to one count of solicitation to commit manslaughter in the first degree-unborn quick child. The court sentenced Mr. Young to 76.5 months of incarceration, the high end of the standard range. The court also sentenced Mr. Young to 24 to 48 months of community custody. On December 10, Mr. Young moved the trial court to modify his judgment and sentence on the grounds that his sentence violated Blakely FN1 and Apprendi.FN2 The trial court found that Blakely and Apprendi did not apply to Mr. Young’s sentence, but that it was possible that Mr. Young’s total amount of time spent in incarceration and in community custody could exceed the statutory maximum. The statutory maximum for solicitation to commit first degree manslaughter is 120 months. RCW 9A.20.021(1)(b). To ensure Mr. Young’s sentence did not exceed the statutory maximum, the trial court amended Mr. Young’s judgment and sentence as follows:

FN1. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

FN2. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Defendant shall be on community custody after release from prison for a period of 24 to 48 months, or for the period of earned early release, whichever is longer, provided that the total of the time defendant is incarcerated on this conviction plus any community custody ordered by [the Department of Corrections] shall not exceed 120 months. If necessary to accomplish this, the period of community custody, rather than the period of incarceration, shall be shortened.
CP at 143-44.

On appeal, Mr. Young asserts that his sentence is unlawful because the terms of confinement and community custody exceed the statutory maximum, which he claims is the high end of the standard range per Blakely. Mr. Young also asserts numerous errors in his statement of additional grounds for review.

Mr. Young asserts the trial court misinterpreted the statutory maximum when imposing his sentence. We review questions of law de novo. In re Pers. Restraint of Brooks, 166 Wn.2d 664, 667, 211 P.3d 1023 (2009).
The Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, prohibits a court from imposing a sentence when the term of confinement and the term of community custody exceed the statutory maximum for the defendant’s crime. RCW 9.94A.505(5).
Mr. Young asserts that, according to Blakely, the relevant statutory maximum is the high end of the standard range. He contends that his sentence of 76.5 months of confinement, plus 24 to 48 months of community custody, exceeds the high end of the standard range and, therefore, his sentence should be remanded for resentencing.
State v. Toney rejected Mr. Young’s argument. State v. Toney, 149 Wn.App. 787, 796, 205 P.3d 944 (2009). The statutory maximum is determined by RCW 9A.20.021. Solicitation to commit manslaughter in the first degree-unborn quick child is a class B felony, carrying a maximum sentence of 10 years. RCW 9A.20.021(1)(b). The standard range for Mr. Young’s crime is 58.5 months to 76.5 months. RCW 9.94A.510.
Community placement is not included in presumptive sentence ranges. In re Pers. Restraint of Caudle, 71 Wn.App. 679, 680, 863 P.2d 570 (1993). There is no sentencing error as long as the period of confinement and the period of community custody do not exceed the statutory maximum sentence. Here, the court sentenced Mr. Young to 76.5 months of confinement, the high end of the standard range. In addition, the court imposed community custody for 24 to 48 months, or the period of earned early release, whichever is longer. However, in the order modifying the judgment and sentence, the court specified that the total time spent in confinement and in community custody could not exceed 120 months.
The trial court imposed a term of confinement within the standard range and stated that the combined terms of confinement and community custody could not exceed the statutory maximum. The trial court did not err.

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

Mr. Young asserts: (1) his judgment and sentence is invalid on its face because it subjects him to an indeterminate sentence; (2) community custody ordered by the trial court reflects multiple punishment for the same offense; (3) further definition and clarification of the term “confinement” is necessary; (4) clarification of section 4.6 of his judgment and sentence is necessary; and (5) the trial court’s improper delegation of authority violated the separation of powers doctrine.
Indeterminate Sentence. Mr. Young asserts that his judgment and sentence is invalid on its face because it fails to clarify the exact periods of confinement and community custody. The Washington Supreme Court recently addressed this issue, stating that the exact amount of time served can almost never be determined at the time of sentencing because of the possibility of earned early release. Brooks, 166 Wn.2d at 674. The maximum term of confinement and the maximum time an offender may serve in totality can only be determined at sentencing. Id. In Brooks, Jeffrey Brooks was sentenced to confinement within the standard range, with a term of community custody following. If Mr. Brooks were to serve the entire sentence, it would have exceeded the statutory maximum, but the sentencing court added language to his judgment and sentence limiting his total sentence to the statutory maximum. The Supreme Court upheld Mr. Brooks’s sentence. Id.
Mr. Young’s situation is virtually identical to Mr. Brooks’s. Mr. Young was sentenced to confinement within the standard sentencing range, with a period of community custody following his confinement. If Mr. Young were to serve the maximum of his community custody time, his sentence would exceed the statutory maximum. Therefore, the court added language stating that the totality of time served must not exceed 120 months. The Supreme Court found that Mr. Brooks’s sentence was determinate. Likewise, here, Mr. Young’s sentence is determinate and does not exceed the statutory maximum.
Double Jeopardy. Mr. Young asserts that the court violated double jeopardy by imposing both a term of confinement and a term of community custody. The United States Constitution and the Washington Constitution prohibit multiple punishments for the same offense. U.S. Const. amend. V; Const. art I, § 9. Mr. Young’s assertion is without merit because the SRA not only permits sentences that combine confinement and community custody, but actually requires a term of community custody, in addition to confinement, for committing violent offenses. Former RCW 9.94A.715(1) (2006). Mr. Young did not receive two punishments for the same offense, he received one punishment with two parts. FN3

FN3. Mr. Young also asserts that the fact that an offender can be sanctioned while in community custody, and sent back to confinement, violates double jeopardy. However, Mr. Young’s argument is premature because he has not been sanctioned while in community custody. Thus, this issue is not ripe for review.

Clarification of “Confinement.” Mr. Young asserts that the court should clarify the meaning of “confinement.” He appears to argue that community custody is confinement. This issue was addressed by State v. Gartrell, 138 Wn.App. 787, 790, 158 P.3d 636 (2007) where the court found that “[c]ommunity custody is plainly not confinement.” Therefore, Mr. Young’s argument is without merit.
Clarification of Judgment and Sentence. Mr. Young contends that this court should clarify section 4.6 of his judgment and sentence. In this section, the court sentenced Mr. Young to community custody for 24 to 48 months, or for the period of earned release, whichever is longer. Mr. Young asserts that, at most, he can earn 7.65 months of early release, and it is obvious that 24 to 48 months is longer than 7.65 months. While Mr. Young’s calculations appear to be correct, he fails to explain how and why section 4.6 needs clarification.
Separation of Powers. Lastly, Mr. Young asserts that the trial court violated the separation of powers doctrine by placing the burden on the Department of Corrections (DOC) to determine the length of his sentence. Separation of powers principles are violated when “ ‘the activity of one branch threatens the independence or integrity or invades the prerogatives of another.’ “ Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994) (quoting Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975)). The Washington Supreme Court recently stated “[i]t is the SRA itself that gave courts the power to impose sentences and the DOC the responsibility to set the amount of community custody to be served within that sentence.” Brooks, 166 Wn.2d at 674. The legislature has delegated power to the courts and the DOC through the SRA and, therefore, no branch is threatening or invading the prerogatives of the other. No separation of powers issue exists here.
We affirm Mr. Young’s conviction.
WE CONCUR: SWEENEY, and KORSMO, JJ.                       See Case HERE

Supreme Court of Washington, State v. Bashaw

FULL CASE FOUND HERE at FindLaw

SUPREME COURT OF WASHINGTON

State of Washington, Respondent,
v.
Bertha Iola Bashaw, Petitioner.

No. 81633-6.

Argued Sept. 17, 2009.
Decided July 1, 2010.

Shadan Kapri, Stevens County Prosecutor’s Office, Colville, WA, for Respondent.

David N. Gasch, Gasch Law Office, Spokane, WA, for Petitioner.

Background: Defendant was convicted in a jury trial in the Superior Court, Ferry County, Rebecca M. Baker, J., of three counts of delivery of a controlled substance, and was found to have committed each offense within 1,000 feet of a school-bus stop, as a sentence enhancement. Defendant appealed. The Court of Appeals, 144 Wash.App. 196, 182 P.3d 451, affirmed. Defendant appealed.

Holdings: The Supreme Court, en banc, Owens, J., held that:(1) court improperly admitted evidence from distance measuring device;(2) admission was harmless error with respect to two of three counts;(3) admission was not harmless error with respect to remaining charge;(4) instruction as to unanimity requirement for special sentencing finding was erroneous; and(5) error was not harmless error. Reversed and remanded.Barbara A. Madsen, C.J., dissented and filed opinion in which Gerry L. Alexander and James M. Johnson, JJ., joined.

OWENS, J.

Bertha Bashaw was convicted of three counts of delivery of a controlled substance. Because the jury determined that each offense occurred within 1,000 feet of a school bus route stop, her maximum sentence was doubled by statute. Bashaw argues that distance measurements of a mechanical device were improperly admitted because the State failed to demonstrate that the device functioned reliably. Bashaw further contends that the jury instructions incorrectly required unanimity for a finding that her actions did not take place within 1,000 feet of the school bus route stop. We agree with both of Bashaw’s arguments, though we find the improper admission of the results harmless with respect to two of the sentence enhancements. Because the instructional error was not harmless, however, we reverse all three sentence enhancements and remand the case to the trial court for further proceedings consistent with this opinion.
FACTS
In July 2007, the State charged Bashaw with three counts of delivery of a controlled substance based on three separate sales to a police informant. The State also sought a sentence enhancement, pursuant to RCW 69.50.435(1)(c), based on its allegation that each sale took place within 1,000 feet of a school bus route stop. That enhancement allows for imprisonment of up to twice the period otherwise authorized. Count I was alleged to have occurred on May 11, 2006, some distance south of the former Vaagen Mill’s parking lot. Counts II and III were alleged to have occurred on May 23 and May 31, 2006, respectively, in the parking lot of the former mill.
At trial, witness testimony established the locations of the school bus route stops and the drug transactions. Dan Chaplik, superintendent of the Republic School District, testified to the locations of two school bus route stops in the area. One was in the “main driveway” of the old mill site, which was located in the parking lot, while the other was across the street and slightly to the south of the parking lot. 1 Transcript of Trial (TR) at 53, 56. Detective Jan Lewis testified that he returned to the locations of the transactions and measured the distance from each location to the nearest school bus route stop. All three drug transactions took place in the vicinity of the same two school bus route stops. To measure the distances, Detective Lewis used what he described as “[o]ne of those rolling wheel measurers you can zero out and roll along ahead of you and it counts out feet.” 2 TR at 176. Detective Lewis further testified that he borrowed the particular device from the Republic Police Department and that he had not used it before, though he had used similar devices. Such devices, according to Detective Lewis, are commonly used by law enforcement. After Detective Lewis pressed a button to zero out the numbers, he measured the distance from each transaction location to the school bus route stop.FN1 At trial, Bashaw objected to the admission of the results of the measuring device based on a lack of foundation. The trial judge overruled the objection, and Detective Lewis testified that, based on his measurements, the distance from the location of the first sale to the school bus route stop was 924 feet and the distances from the locations of the second and third transactions to the school bus route stop were each 100 to 150 feet. This was the only testimony directly addressing the distance between the transactions and the school bus route stop.

FN1. The State has conceded on appeal that all three distances were the result of measurement with the same device. Wash. State Supreme Court oral argument, State v. Bashaw, No. 81633-6 (Sept. 17, 2009), at 21 min., 18 sec., video recording by TVW, Washington State’s Public Affairs Network, available at http:// www. tvw. org; Resp’t’s Br. at 3 (adopting Bashaw’s statement of the case, including her assertion that all three distances were measured, Appellant’s Br. at 5).

The transcript also reveals additional testimony about the relevant locations from which distance might be inferred. Detective Lewis estimated that the distance from the parking lot entrance to the end of the former mill’s parking lot was no more than 150 feet. Additionally, four other witnesses, including the confidential informant and three other law enforcement personnel, testified to the locations of the drug transactions and the distance from the parking lot to the location of the transaction alleged in count I. As to this distance, Detective Donald Redfield estimated the distance to be one-tenth of a mile (528 feet) while Detectives Steve Brown and Armondo Moralez, as well as the confidential informant, estimated the distance to be one-quarter of a mile (1,320 feet).
Because the State sought a sentence enhancement, the jury was given a special verdict form for each charge. The form asked the jury to make a special finding of whether each charged delivery took place within 1,000 feet of a school bus route stop. In the jury instruction explaining the special verdict forms, jurors were instructed: “Since this is a criminal case, all twelve of you must agree on the answer to the special verdict.” Clerk’s Papers at 95. On appeal, Bashaw challenges this instruction as contrary to precedent from this court.
The jury found Bashaw guilty of all three counts of delivery of a controlled substance and found that each had taken place within 1,000 feet of a school bus route stop. The latter finding increased Bashaw’s maximum sentence from 24 months to 48 months. The trial judge sentenced Bashaw to 36 months’ imprisonment. Bashaw appealed the sentence but not the underlying conviction. The Court of Appeals affirmed the sentence, and Bashaw filed a petition for review with this court, which we granted. State v. Bashaw, 144 Wash.App. 196, 182 P.3d 451, review granted, 165 Wash.2d 1002, 198 P.3d 512 (2008).

ISSUES

Did the trial court abuse its discretion by admitting testimony about the results of a measuring device without any showing of reliability?
Did the trial court correctly instruct the jury that its special finding had to be unanimous?

STANDARD OF REVIEW

This court reviews challenged jury instructions de novo. State v. Bennett, 161 Wash.2d 303, 307, 165 P.3d 1241 (2007). We review the admission of evidence for abuse of discretion. City of Auburn v. Hedlund, 165 Wash.2d 645, 654, 201 P.3d 315 (2009). “Abuse of discretion exists ‘[w]hen a trial court’s exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons.’ ” State v. Magers, 164 Wash.2d 174, 181, 189 P.3d 126 (2008) (alteration in original) (quoting State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995)).

ANALYSIS

I. The Trial Court Abused Its Discretion by Admitting Testimony about the Results of a Measuring Device without Any Showing of Reliability

The first issue in this case concerns the showing of reliability necessary for a trial court to admit testimony about the results of a measuring device. In accordance with analogous precedent, we hold that admission of results from a distance measuring device requires a showing that the particular device was functioning properly and produced accurate results. Because the State produced no evidence that the distance measuring device here produced accurate results, its admission was error and an abuse of discretion. That error, however, was harmless as to counts II and III but not as to count I. Accordingly, we vacate the sentence enhancement with respect to count I on this basis.

A. Evidence Must Be Authenticated Prior to Admission

It is fundamental that evidence must be authenticated before it is admitted. See ER 901(a). Authentication requires that the proponent produce proof “sufficient to support a finding that the matter in question is what its proponent claims.” Id. The party offering the evidence must make a prima facie showing consisting of proof that is sufficient “to permit a reasonable juror to find in favor of authenticity or identification.” State v. Payne, 117 Wash.App. 99, 106, 69 P.3d 889 (2003); see also Judicial Council Cmt. 901, cited in 5C Karl B. Tegland, Washington Practice: Evidence Law and Practice § 901.1, at 283 n. 3 (5th ed.2007).
Conceptually, authentication is a process of establishing conditional relevance. See Judicial Council Cmt. 901, cited in 5C Tegland, supra, § 901.1, at 283 n. 3; see also Robert H. Aronson, The Law of Evidence in Washington § 901.05(1), at 901-12 (4th ed. 2008) (“Unless evidence is in fact what it purports to be, it is not relevant”). As observed in Washington Practice, “a photograph might be relevant, but only if it accurately depicts the subject”; “[an audio] recording might be relevant, but only if the sounds were recorded faithfully and the voices are accurately identified.” 5C Tegland, supra, § 901.1, at 283. Likewise, a distance measurement may be relevant, but only if it is accurately measured.
In a line of cases analogous to the present one, the courts of this state have held that, under ER 901, speed measuring devices, such as radar devices, must be authenticated in order for their results to be admissible. See City of Bellevue v. Mociulski, 51 Wash.App. 855, 859-60, 756 P.2d 1320 (1988); see also City of Bellevue v. Hellenthal, 144 Wash.2d 425, 431-32, 28 P.3d 744 (2001) (citing Mociulski, 51 Wash.App. at 860-61, 756 P.2d 1320, with approval); City of Bellevue v. Lightfoot, 75 Wash.App. 214, 221, 877 P.2d 247 (1994) (“police traffic radar results are not admissible unless the particular radar device used is shown to be reliable”); City of Seattle v. Peterson, 39 Wash.App. 524, 527, 693 P.2d 757 (1985) (holding that evidence of a machine’s reliability is a prerequisite to admission of the machine’s results). Authentication of such devices requires a showing that the particular unit “was functioning properly and produced accurate *142 results” at the time it was employed. Lightfoot, 75 Wash.App. at 221, 877 P.2d 247.FN2

FN2. For speed measuring devices, this showing is now governed by CrRLJ 6.13 and IRLJ 6.6. No comparable rule exists for distance measuring devices.

We agree with the formulation of the Court of Appeals, as expressed in the speed measuring device line of cases, regarding the authentication required prior to admission of measurements made by mechanical devices.FN3 The rules of evidence, analogous case law, and common sense all dictate that before the State introduces evidence that will result in a mandatory penalty enhancement, the State must show that the evidence it relies upon is accurate. Simply put, results of a mechanical device are not relevant, and therefore are inadmissible, until the party offering the results makes a prima facie showing that the device was functioning properly and produced accurate results. This is consistent with the rationale underlying the requirement of authentication. See 5C Tegland, supra, § 901.1, at 283. As such, we hold that the principle articulated in the context of speed measuring devices also applies to distance measuring devices: a showing that the device is functioning properly and producing accurate results is, under ER 901(a), a prerequisite to admission of the results.

FN3. For devices relying on complex scientific principles, authentication is actually a compound determination, first involving the qualifications of a witness under ER 702 and then whether the mechanical device operated reliably. Hellenthal, 144 Wash.2d at 432, 28 P.3d 744. No ER 702 question is before the court in this case.

It is true, of course, that electronic instruments differ from standard rolling wheel measuring devices in complexity. That difference, however, is properly addressed through what prima facie showing is required rather than whether a prima facie showing is required.FN4 In the present case, the State failed to make a prima facie showing that the rolling wheel measuring device produced accurate results. Though we know that the device displayed numbers and that it “click[ed] off feet and inches” while Detective Lewis pushed it, no testimony or evidence even suggested that those numbers were accurate. 2 TR at 181. No comparison of results generated by the device to a known distance was made nor was there any evidence that it had ever been inspected or calibrated. The trial court abused its discretion by admitting the results of the rolling wheel measuring device with no showing whatsoever that those results were accurate.

FN4. Some devices operate in a manner such that any failure by the device to produce accurate results would be immediately obvious to the user (e.g., measuring tapes, yard sticks, or rulers). In such cases, it may be inferred from testimony by the user about measurements with the device that the results are accurate. This contrasts with rolling wheel measuring devices for which, like speed measuring devices, the internal workings are not observable by the user.

B. Improper Admission of Evidence Was Harmless as to Counts II and III but Not as to Count I

The improper admission of evidence to support a criminal conviction may be harmless error. State v. Flores, 164 Wash.2d 1, 18, 186 P.3d 1038 (2008). An evidentiary error is not harmless “if, ‘within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.’ ” State v. Neal, 144 Wash.2d 600, 611, 30 P.3d 1255 (2001) (quoting State v. Smith, 106 Wash.2d 772, 780, 725 P.2d 951 (1986)). The record allows us to conclude that the improper admission of the results of the rolling wheel measuring device would not have materially affected the jury’s special verdicts with respect to counts II and III. The outcome of the special verdict with respect to count I, however, might well have been different had the court excluded the results.
Apart from the measurements made by the rolling wheel measuring device, testimony at trial also addressed the relevant locations and distances between the drug transactions and a school bus route stop. Superintendent Chaplik testified, and, based on the jury’s verdicts, it must have believed, that the school bus stopped in “the driveway area of the Vaagen’s Mill site,” also referred to as the parking lot. 1 TR at 53. Numerous witnesses, including law enforcement officers and the confidential informant, testified that the transactions that were the basis for counts II and III took place in the parking lot. Id. at 110, 136; 3 TR at 275-77, 284-86, 322, 344-45, 358-60; 4 TR at 400, 405. Again, to reach its conclusions, the jury must necessarily have found the testimony about these locations credible. Detective Lewis estimated that the parking lot, in which the bus stopped and the transactions occurred, is no more than 150 feet long. 2 TR at 183. In the presence of such extensive testimony, much of which this jury would necessarily have found credible to reach its verdict, we conclude that there is no reasonable probability that this jury, as instructed, would have concluded that the special verdicts relating to counts II and III did not take place within 1,000 feet of a school bus route stop if the results of the rolling wheel measuring device had been excluded.
As to count I, there is a reasonable possibility that the jury would have reached a different conclusion on the special verdict if the improperly admitted results had been excluded. After meeting at the parking lot of the mill, Bashaw and the confidential informant traveled some distance south to conduct the transaction. One detective estimated the distance was one-tenth of a mile, or 528 feet, from the parking lot entrance, 3 TR at 275, while two other detectives and the confidential informant estimated the distance was one-quarter of a mile, or 1,320 feet, id. at 314, 339; 4 TR at 391. Thus, the testimony was conflicting but weighed in favor of finding that the distance was over 1,000 feet from the parking lot. Though an aerial photograph of the area was entered into evidence, it contained no scale or other method of accurately determining distance. The photograph does not establish that the transaction occurred within 1,000 feet of a school bus route stop. As to the special verdict on count I, then, there is at least a reasonable probability that excluding the results of the rolling wheel measuring device would have materially affected the outcome. As such, the improper admission of the results of the rolling wheel measuring device was not harmless and the special verdict with respect to count I must be vacated.

II. The Trial Court Incorrectly Instructed the Jury That Its Special Finding Had To Be Unanimous.

The jury instruction issue in this case is a narrow one: when a jury has unanimously found a defendant guilty of a substantive crime and proceeds to make an additional finding that would increase the defendant’s sentence beyond the maximum penalty allowed by the guidelines, must the jury’s answer be unanimous in order to be final? We answered this question in State v. Goldberg, 149 Wash.2d 888, 72 P.3d 1083 (2003), and the answer is no. A nonunanimous jury decision on such a special finding is a final determination that the State has not proved that finding beyond a reasonable doubt.FN5

FN5. General verdicts in criminal cases, of course, must still be unanimous to convict or acquit. See Wash. Const. art. I, § 21; State v. Stephens, 93 Wash.2d 186, 190, 607 P.2d 304 (1980).

In Goldberg, the defendant was charged with first degree murder, pursuant to RCW 9A.32.030, with an aggravating circumstance enumerated in RCW 10.95.020. 149 Wash.2d at 893, 72 P.3d 1083. The finding of an aggravating circumstance would have increased the maximum penalty to “life imprisonment without possibility of release or parole.” RCW 10.95.030(1). The jury in Goldberg initially returned a verdict finding the defendant guilty of first degree murder but answered “no” on the special verdict form asking whether the aggravating circumstance was present. 149 Wash.2d at 891, 72 P.3d 1083. The judge polled the jury and **202 found that one juror had voted “no” on the aggravating factor.FN6 Id. The presiding juror informed the judge that there was no reasonable probability of the jury reaching a unanimous agreement within a reasonable time. Id. Despite that, the judge ordered the jury to continue deliberations the next day and the jury subsequently returned a unanimous finding that the State had proved the aggravating factor. Id. at 891-92, 72 P.3d 1083.

FN6. In fact, three jurors had voted “no” but only one juror raised a hand when asked. Goldberg, 149 Wash.2d at 891, 72 P.3d 1083.

In resolving the appeal in Goldberg, we rejected the parties’ framing of the issue as one of jury coercion. Id. at 893, 72 P.3d 1083. Instead, the issue we addressed was “whether … unanimity is required” for a special finding increasing the maximum penalty and we held that “it is not.” Id. We went on to hold that the “jury’s [nonunanimous] judgment should have been accepted” and that it was error to order continued deliberations. Id. at 894, 72 P.3d 1083. We concluded by stating, “[i]n sum, special verdicts do not need to be unanimous in order to be final.” Id. at 895, 72 P.3d 1083. The rule from Goldberg, then, is that a unanimous jury decision is not required to find that the State has failed to prove the presence of a special finding increasing the defendant’s maximum allowable sentence. A nonunanimous jury decision is a final determination that the State has not proved the special finding beyond a reasonable doubt.FN7

FN7. This rule is not compelled by constitutional protections against double jeopardy, cf. State v. Eggleston, 164 Wash.2d 61, 70-71, 187 P.3d 233 (stating that double jeopardy protections do not extend to retrial of noncapital sentencing aggravators), cert. denied, — U.S. —-, 129 S.Ct. 735, 172 L.Ed.2d 736 (2008), but rather by the common law precedent of this court, as articulated in Goldberg.

The rule we adopted in Goldberg and reaffirm today serves several important policies. First, we have previously noted that “[a] second trial exacts a heavy toll on both society and defendants by helping to drain state treasuries, crowding court dockets, and delaying other cases while also jeopardizing the interests of defendants due to the emotional and financial strain of successive defenses.” State v. Labanowski, 117 Wash.2d 405, 420, 816 P.2d 26 (1991). The costs and burdens of a new trial, even if limited to the determination of a special finding, are substantial. We have also recognized a defendant’s “ ‘valued right’ to have the charges resolved by a particular tribunal.” State v. Wright, 165 Wash.2d 783, 792-93, 203 P.3d 1027 (2009) (internal quotation marks omitted) (quoting Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). Retrial of a defendant implicates core concerns of judicial economy and finality. Where, as here, a defendant is already subject to a penalty for the underlying substantive *147 offense, the prospect of an additional penalty is strongly outweighed by the countervailing policies of judicial economy and finality.

Applying the Goldberg rule to the present case, the jury instruction stating that all 12 jurors must agree on an answer to the special verdict was an incorrect statement of the law. Though unanimity is required to find the presence of a special finding increasing the maximum penalty, see Goldberg, 149 Wash.2d at 893, 72 P.3d 1083, it is not required to find the absence of such a special finding. The jury instruction here stated that unanimity was required for either determination. That was error.
In order to hold that a jury instruction error was harmless, “we must ‘conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.’ ” State v. Brown, 147 Wash.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). The State argues, and the Court of Appeals agreed, that any error in the instruction was harmless because the trial court polled the jury and the jurors affirmed the verdict, demonstrating it was unanimous. This argument misses the point. The error here was the procedure by which unanimity would be inappropriately achieved. In Goldberg, the error reversed by this court was the trial court’s instruction to a nonunanimous jury to reach unanimity. **203 149 Wash.2d at 893, 72 P.3d 1083. The error here is identical except for the fact that that direction to reach unanimity was given preemptively.
The result of the flawed deliberative process tells us little about what result the jury would have reached had it been given a correct instruction. Goldberg is illustrative. There, the jury initially answered “no” to the special verdict, based on a lack of unanimity, until told it must reach a unanimous verdict, at which point it answered “yes.” Id. at 891-93, 72 P.3d 1083. Given different instructions, the jury returned different verdicts. We can only speculate as to why this might be so. For instance, when unanimity is required, jurors with reservations might not hold to their positions or may not raise additional questions that would lead to a different result. We cannot say with any confidence what might have occurred had the jury been properly instructed. We therefore cannot conclude beyond a reasonable doubt that the jury instruction error was harmless. As such, we vacate the remaining sentence enhancements and remand for further proceedings consistent with this opinion.

CONCLUSION

We reach two conclusions in this case. First, testimony about the results of a mechanical device is admissible only if there is some showing that the particular measuring device was functioning properly and producing accurate results. Second, a nonunanimous special finding by a jury is a final decision by the jury that the State has not proved its case beyond a reasonable doubt. Because there was no showing that the distance measuring device employed here produced accurate results and that error was not harmless as to the special verdict on count I, and because the trial court erred in instructing the jury on the unanimity requirements for special findings, we reverse all three sentence enhancements and remand the case to the trial court for further proceedings consistent with this opinion.

WE CONCUR: CHARLES W. JOHNSON, RICHARD B. SANDERS, TOM CHAMBERS, MARY E. FAIRHURST, and DEBRA L. STEPHENS, Justices.

MADSEN, C.J. (dissenting).

Although I have concerns about the majority’s comparison of a measuring wheel to radar devices, my greater concern is with the majority’s treatment of the jury instructions and its conclusion that instructional error regarding jury unanimity was not harmless.
First, with regard to the majority’s conclusion that a measuring wheel is analogous to radar devices and thus similar authentication requirements apply before evidence of the wheels’ measurements may be admitted, the analogy is inapposite. Radar measuring devices are complex machines whose operation is not within the common understanding of jurors. Further, where complicated radar devices used to measure speed and breath testing equipment used to measure blood or breath alcohol levels are concerned, state statutes and regulations set forth the standards and requirements for admission of test results. RCW 46.61.506; CrRLJ 6.13(c), (d); IRLJ 6.6; Title 448 WAC. In contrast, there is no protocol for calibrating a measuring wheel and no rule or statute dictating testing prior to use.
This is logical, since, unlike a radar device or breath testing equipment, a measuring wheel does not rely for its result on complex scientific theory or complicated mechanical operation; a measuring wheel is no more than a round ruler. Its operation is within the common understanding of jurors. The accuracy of the device’s result is a question of weight to be given the evidence and not admissibility. I disagree with the majority’s conclusion that a measuring wheel is subject to the same authentication requirements as radar devices.
My greater concern, however, is that the majority concludes that error in instructing the jury on the unanimity requirements for special findings on whether Bertha Bashaw distributed a controlled substance within 1,000 feet of a school bus route stop was not harmless error. I disagree.
This case is unlike State v. Goldberg, 149 Wash.2d 888, 72 P.3d 1083 (2003), upon which the majority bases this conclusion. In Goldberg, an aggravated murder prosecution, the jury initially returned a verdict and answered “no” on the special verdict form for the aggravating factor that the State alleged. Id. at 891, 894, 72 P.3d 1083. The jury was polled. One juror raised a hand to confirm a “no” vote, although evidently three jurors actually voted “no.” As the court explained in Goldberg, the judge then proceeded as if the jury was deadlocked and instructed the jury to continue deliberating to see if unanimity could be reached. Id.
At the time the jury returned its original verdict, it was close to 5:00 p.m. and the jury had been deliberating since 11:00 a.m. that day. Id. at 891, 72 P.3d 1083. The jury was instructed to resume deliberations the next day. Id. The next day, after deliberating three more hours, the jury returned a unanimous finding that the State had proved the aggravating factor. Id. at 891-92, 72 P.3d 1083.
This court concluded in Goldberg that unanimity is not required for a special verdict and there was no error in the jury’s original verdict. Id. at 894, 72 P.3d 1083. The court further held that it was error for the trial court to order continued deliberations. Id.
In the present case, however, the jury returned one verdict and there is nothing to indicate there was any error in the jury’s original and only verdict. Unlike in Goldberg, the jury was not advised, after returning a verdict, that it must continue to deliberate. Unlike in Goldberg, the polling of the jury showed no disagreement on the question whether the state had proved that delivery of controlled substances occurred within 1,000 feet of a school bus route stop.
Moreover, the jury here was advised as to what it must find to return a finding that delivery took place within 1,000 feet of a school bus route stop. Jury instruction 19 instructed the jury, as to each count of delivery of a controlled substance, that if it found the defendant guilty, it would then complete a special verdict form. This instruction also correctly told the jury with respect to each count:  If you find from the evidence that the state has proved beyond a reasonable doubt that the defendant delivered the controlled substance to a person within one thousand feet of a school bus stop route stop designated by a school district, it will be your duty to answer the special verdict form [A][B][C] “yes.”
Clerk’s Papers at 95-96 (Jury Instruction 19). A jury is presumed to follow the jury instructions. State v. Gamble, 168 Wash.2d 161, 178, 225 P.3d 973 (2010); State v. Kirkman, 159 Wash.2d 918, 937, 155 P.3d 125 (2007). Nothing indicates that the jury did not do so.
The majority suggests that a different outcome might have resulted under proper instructions. The majority is therefore either suggesting that the jury might not have followed the jury instructions when it returned its unanimous findings-which would be antithetical to the presumption that juries follow the instructions they are given, or the majority is suggesting that the jury was coerced or influenced by the unanimity instruction into reaching a conclusion it would not otherwise have reached-which is equally unacceptable given that unanimity is required for guilty verdicts. We certainly do not infer from a unanimous verdict on guilt that the jury was coerced or improperly influenced by an instruction on unanimity. Why does the majority doubt the unanimous verdict here?
Goldberg is not the same as this case, contrary to the majority’s belief. Because unanimity is not required, the original verdict form in Goldberg stated the jury’s true, legally permissible finding. The judge rejected this true initial verdict on impermissible grounds and instead accepted a legally erroneous verdict, which was erroneous because it was arrived at only after the judge informed the jury that its initial verdict was not acceptable. We know all of this because we know what the original verdict form said; we know that the results of the jury polling confirmed the original verdict; we know what then occurred, including the judge’s instruction ordering the jury to return the next day and continue deliberation with the goal to achieve unanimity; and we know that **205 the second verdict was unanimous and contrary to the first verdict.
None of these circumstances exist in the present case. All that exists is the majority’s speculation that a proper instruction might have resulted in a different verdict. That speculation does not accord with the jury instructions given and the presumption that the jury would not have returned its unanimous verdict unless each of the jurors was persuaded that the State proved that the offenses occurred within 1,000 feet of a school bus route stop, as instructed.
For the reasons stated, I dissent. As I have noted, I am most concerned about the majority’s ill-considered conclusion that the instructional error was not harmless error.

WE CONCUR: GERRY L. ALEXANDER and JAMES M. JOHNSON, Justices.

Wash.,2010.
State v. Bashaw
169 Wash.2d 133, 234 P.3d 195

 

State v. Curley [Assault with a Firearm]

STATE of Washington, Respondent,
v.
Christopher Thomas Curley, Appellant.

Court of Appeals of Washington

Division II

No. 27444-6-III

Jan. 7, 2010.

Shadan Kapri, Stevens County Senior Deputy Prosecuting Attorney, Colville, WA, for Respondent.

Robert R. Cossey, Robert R. Cossey & Associates PS, Spokane, WA, for Appellant.

JUDICIAL OPINION

KORSMO, J.

Christopher Curley challenges his Stevens County convictions for second degree assault and second degree unlawful possession of a firearm. He alleges that the trial court erred by limiting testimony and instructing the jury, and that his counsel erred by not raising a challenge to the unlawful possession charge. We find no error and affirm.

BACKGROUND

        The charges arose after Mr. Curley fired three shots from a .45 handgun at a neighbor, Tim Moore, who was riding a motorcycle on Curley’s property in rural Stevens County. There was bad blood between the neighbors. Moore had previously accused Curley of stealing firewood. Curley believed that Moore and his father were trying to run him off his property. He also believed that the younger Moore had vandalized his bulldozer and had threatened to burn down Curley’s cabin. Curley also alleged that in 2006, Moore had dragged him from a pickup truck and beaten him. None of these incidents, all of which Moore denied, were reported to the police.
         When he heard the motorcycle, Mr. Curley went outdoors with the handgun at his side. According to Curley, Moore saw the gun and said, “Oh yeah.” Curley believed Moore had the same look in his eye as he did when he had dragged Curley from the truck. Curley fired three shots in Moore’s direction; Moore left the area. Both men called for law enforcement assistance. After questioning both men, deputies arrested Mr. Curley.
         The charges were tried to a jury. In the course of his testimony, Mr. Curley told jurors that he was not aware that his firearm rights had been revoked by his 1994 domestic violence conviction for assaulting his wife. He had purchased guns without challenge despite the conviction.
          The court refused to let the defense call attorney Robert Simeone to testify about an easement dispute between Curley and the Moores. Simeone would have testified that Curley had an easement across the Moore property, but the Moores did not have an easement across Curley’s land. The trial court found the evidence was redundant and not helpful to the trier of fact.
          The trial court also refused to give a self-defense instruction. The jury convicted Mr. Curley as charged. He was sentenced to 42 months in prison. He timely appealed to this court.

ANALYSIS

This appeal challenges the trial court’s rulings on Mr. Simeone’s testimony and the self-defense instruction. Mr. Curley also argues that his due process rights were violated by the unlawful possession charge and that his attorney erred by not moving to dismiss that count.FN1 We will address the arguments in the order stated.

FN1. Mr. Curley also filed a Statement of Additional Grounds. We find those arguments to be without merit and will not further address them.

Excluded Testimony

          The trial court excluded the testimony of attorney Simeone on the basis that it was redundant to Mr. Curley’s testimony and was not helpful to the jury. A trial court has broad discretion in deciding whether or not to admit evidence. Kappelman v. Lutz, 167 Wash.2d 1, 6, 217 P.3d 286 (2009); State v. Swan, 114 Wash.2d 613, 658, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991). A trial court abuses its discretion when it acts on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).
          Here, the trial court concluded that evidence of the easement dispute between the Moores and Mr. Curley was not helpful to the jury. That was a tenable basis for excluding the evidence. Mr. Curley testified that there was a dispute. Additional evidence was not necessary, particularly where the issue for the jury to decide was whether or not Mr. Curley assaulted Mr. Moore. The status of the land was not relevant.
          The trial court did not abuse its considerable discretion in this area.

Self-Defense Instruction

           Mr. Curley also challenges the decision not to give a self-defense instruction. Jury instructions are sufficient if they correctly state the law, are not misleading, and allow the parties to argue their respective theories of the case. State v. Dana, 73 Wash.2d 533, 536-537, 439 P.2d 403 (1968). The trial court also is granted broad discretion in determining the wording and number of jury instructions. Petersen v. State, 100 Wash.2d 421, 440, 671 P.2d 230 (1983).
           Instructions on self-defense are required when there is evidence that a reasonable person in the defendant’s circumstances would be justified in using force to prevent harm to himself, others, or his property. RCW 9A.16.020(3). There must be evidence to support a subjective, good-faith belief that force was necessary, and the force used must have been objectively reasonable. State v. Walker, 136 Wash.2d 767, 773, 966 P.2d 883 (1998).
            The trial court concluded here that there was no history of use of weapons between the parties and therefore Mr. Curley did not have a reasonable belief that he was in danger, nor was use of deadly force necessary. We agree.
            There was no evidence that Mr. Moore’s trespass on a motorcycle presented an immediate threat justifying the use of force, let alone potentially deadly force. There was no evidence that Mr. Moore was trying to run Mr. Curley down with the motorcycle or otherwise was threatening his physical safety. Mr. Curley justified defending himself by the “look” in Mr. Moore’s eyes. The look in one’s eyes does not objectively justify the use of force.
            Nor was the need to defend the property from trespass sufficient justification to shoot at the intruder. This court has previously determined that deadly force is not justified to eject a nonviolent trespasser. State v. Murphy, 7 Wash.App. 505, 514, 500 P.2d 1276, review denied, 81 Wash.2d 1008 (1972). There simply was no evidence presented here that any force was necessary to prevent a malicious trespass. There most certainly was no evidence justifying use of deadly force.
             The trial court correctly concluded that there was no basis for any self-defense instruction.

Due Process

          Mr. Curley next argues that his due process rights were violated when he was charged with unlawful possession of a firearm. He contends that he was not given required notice that his 1994 misdemeanor conviction precluded him from possessing firearms. This issue was never presented to the trial court and, unsurprisingly, the record is inadequate to resolve the claim.
          RCW 9.41.040(2)(a)(i) provides that a person convicted of fourth degree assault against a family member is ineligible to possess a firearm. RCW 9.41.047(1) requires a judge to notify an offender orally and in writing that he may not possess a firearm until a court restores the right to do so. When a trial court fails to notify an offender of the firearms disqualification and the offender was misled and prejudiced by the error, Washington courts have found that the offender’s due process rights have been violated. The typical remedy is to dismiss a prosecution for unlawful possession of a firearm. E.g., State v. Moore, 121 Wash.App. 889, 91 P.3d 136 (2004), review denied, 154 Wash.2d 1012, 114 P.3d 657 (2005); State v. Leavitt, 107 Wash.App. 361, 27 P.3d 622 (2001).
          Mr. Curley argues that his testimony puts this case within those fact patterns. It does not. First, there is no evidence that Mr. Curley was not advised that he was prohibited from possessing guns. He simply says he did not know that he could not possess guns. While it may be possible to infer the court did not advise him, that is not the only inference possible from his testimony. Furthermore, no written documents from the 1994 proceeding are before this court. We do not know what those documents may have said. There also is no record of the actual sentencing proceedings in that case, so we have no record of what the trial court may have told Mr. Curley. We do not even know the date of the 1994 offense. The notification requirement did not exist before July 1, 1994. See Laws of 1994, 1st Spec. Sess., ch. 7, § 404. It is possible that Mr. Curley was not entitled to notification. There also is no evidence that Mr. Curley was misled by the trial court. He has not alleged that he would have forsaken gun ownership if he had known of the prohibition.
           For all of these reasons, there is simply no factual basis for any court to have found Mr. Curley’s due process rights were violated in 1994.FN2 The argument is without merit. FN2. This court is not empowered to find facts on appeal. E.g., Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 572, 575, 343 P.2d 183 (1959). The failure to present this issue to the trial court essentially left this issue unreviewable on appeal because there is no factual determination from which to render a legal ruling.

Ineffective Assistance

           Mr. Curley also argues that his counsel was ineffective for failing to raise the due process argument at or before trial. This argument founders for the simple reason that the record does not reflect that counsel was aware of a factual basis for bringing the motion.
          The standards of review of a claim of ineffective assistance of counsel are well understood. The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to the standards of the profession. Counsel’s failure to live up to those standards will require a new trial when the client has been prejudiced by counsel’s failure. State v. McFarland, 127 Wash.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel’s decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance, the defendant must show both that his counsel erred and that the error was so significant, in light of the entire trial record, that it deprived him of a fair trial. Id. at 690-692.  Because we do not know if there was a factual basis for bringing the motion, let alone whether counsel knew of the necessary facts, there is no evidentiary basis for finding that counsel performed ineffectively. Accordingly, the ineffective assistance claim likewise is without merit.

Conclusion

The judgment is affirmed.
WE CONCUR: KULIK, A.C.J., and BROWN, J.

State v. Level [Possession with Intent to Deliver]

STATE of Washington, Respondent,
v.
Jacob Daniel Level, Appellant.

Court of Appeals of Washington

Division III 

No. 27729-1-III.

Oct. 12, 2010. 
 
Shadan Kapri, Stevens County Senior Deputy Prosecuting Attorney, Colville, WA, for Respondent.      
 
Donald G. Miller, Attorney at Law, Spokane, WA, for Appellant.
 
Appeal from Stevens Superior Court; Honorable Allen C. Nielson, J.
 
SUMMARY:  Defendant waived for appellate review his claim regarding the legality of the search since the defendant pled guilty. The defendant alleged that the probation officer lacked reasonable suspicion of criminal activity to justify the walk-through of the defendant’s home. However, this error was not assigned to a collateral matter, and the guilty plea waived or rendered irrelevant all constitutional violations that occurred before the guilty plea. U.S.C.A. Const.Amend. 4.
 
JUDICIAL OPINION

SIDDOWAY, J.

Jacob Level appeals his conviction of possession with intent to deliver marijuana, contending that evidence obtained in a probation officer’s walk-through of Level’s home should have been suppressed. In a statement of additional grounds, Level represents that he is allowed to possess medical marijuana under chapter 69.51A RCW. We need not address the claimed illegal seizure, because Level’s plea of guilty after losing his effort to suppress the evidence waives this issue. His claimed right to possess marijuana relates to matters outside the record that we cannot address on direct appeal. We affirm the trial court.

CONTROLLING FACTS AND PROCEDURAL HISTORY

As of March 2008, Level was serving community custody imposed for a 2005 conviction for assault. Between the 2005 conviction and a prior conviction for assaults, Level had been under active supervision by the Department of Corrections (DOC) for four years. In each case, community custody was imposed on “standard mandatory conditions.” Clerk’s Papers (CP) at 82, 96. Among conditions described in written instructions reviewed with Level by his probation officer, and signed by Level, were being subject to search of his residence if DOC had reasonable cause to believe he had violated the conditions of his community custody and consenting to DOC home visits to monitor compliance. Home visits were described as including “ ‘access for the purposes of visual inspection of all areas of residence in which the offender lives or has exclusive/joint control/access.’ ” CP at 171.

In early 2008, Level’s probation officer, Travis Hurst, became suspicious that Level was involved in illegal activity based on Level’s apparent increase in income. Suspecting that Level might be involved in thefts and dealing in stolen property, Hurst contacted a Stevens County detective and asked that the detective accompany him on a walk-through of Level’s new home, which Hurst had not yet visited.

During the course of the walk-through and after viewing the home, Level invited Hurst and the detective into the backyard, where Hurst noticed and inquired about a padlocked shed 30 to 35 feet behind the house. Level stated it was the landlord’s and that he did not have access to it, or any idea what it contained. Hurst circled the shed, looking for any openings or signs of the shed’s contents, and upon rounding the back of the shed noticed a duffel bag, in which Hurst could see surgical tubing, some bongs, and small bags of what appeared to be marijuana. On closer inspection, he found large bags of smaller bags of marijuana, a list of names and associated numbers, and a scale. As Hurst walked back into the main part of the yard from behind the shed, duffle bag in hand, Level immediately stated that it was his, but was only medical marijuana and supplies.

The State charged Level with possession of marijuana with intent to deliver. Level filed a motion to suppress the duffel bag and its contents, contending that the warrantless search was illegal on several grounds. His motion to suppress was denied. After losing his motion to suppress the evidence, Level was offered a plea agreement by which he would serve 12+ months’ confinement, 9-12 months’ community custody, and pay approximately $3,000 in fines and assessments; the standard range for his offender score was 12+ to 24 months, with a maximum penalty of five years and $10,000. CP at 123-29. Level accepted the agreement and entered a plea of guilty; in so doing, Level acknowledged that his lawyer had explained, and Level understood, the terms and consequences of his plea. CP at 130-39; Report of Proceedings (RP) at 139-52.

In a sentencing hearing a few weeks later, there was discussion among counsel, Level, and the trial judge of disagreement whether Level had been promised that his wife, who had reached a related plea agreement at the same time, would not be charged with a felony. During the course of that discussion, Level also raised a claimed understanding that he had reserved his right to appeal the outcome of the suppression hearing, to which the trial judge responded that he had not; the judge told Level, “When you enter a plea you waive, in effect, or give up that right of appeal, on the marijuana charge.” RP at 167. Neither Level nor his counsel took exception to the judge’s statement.

Level filed his notice of appeal pro se. CP at 157. His counsel on appeal assigns error to the trial court’s denial of Level’s motion to suppress evidence obtained in the walk-through on grounds that the probation officer lacked reasonable suspicion of criminal activity to justify the walk-through, that the walk-through was a pretext for a warrantless search in support of a burglary investigation, that the walk-through exceeded the permissible scope of a probationary home visit, and that the trial court improperly considered facts outside the record in denying his motion to suppress.

ANALYSIS

A threshold and controlling question is whether Level waived his right to challenge the suppression decision by pleading guilty.FN1 Ordinarily, a plea of guilty constitutes a waiver by the defendant of his right to appeal. While a defendant who pleads guilty preserves the right to challenge the judgment and sentence on collateral grounds, he waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or the government’s legal power to prosecute regardless of factual guilt. State v. Brandenburg, 153 Wash.App. 944, 947-48, 223 P.3d 1259 (2009) (citing State v. Majors, 94 Wash.2d 354, 356, 616 P.2d 1237 (1980)), review denied, 236 P.3d 207 (2010).

Level has not assigned error on appeal to any collateral matter. His assignments of error are based, instead, on the legality of the search and the conduct of the suppression hearing. Appellant’s Br. at 1-2. Appeal of these matters has been waived.

In a statement of additional grounds, Level represents that he is allowed to possess marijuana under the Washington State Medical Use of Marijuana Act, chapter 69.51A RCW, and asserts that Hurst was aware of this, yet harassed him for his marijuana use. Because these claims relate to matters outside the record, we cannot address them on direct appeal. State v. McFarland, 127 Wash.2d 322, 338 & n. 5, 899 P.2d 1251 (1995). If Level wishes to bring a claim based upon matters outside the record, he must do so through a personal restraint petition. Id.

Affirmed.

WE CONCUR: KULIK, C.J., and KORSMO, J.