Opinion
No. 30253-5-II.
Filed: April 27, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 03-1-00010-8. Judgment or order under review. Date filed: 04/03/2003. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Rodney Dean Chappell appeals his convictions of first degree burglary — domestic violence, second degree assault — domestic violence, and felony harassment — domestic violence. He argues that the jury was improperly instructed, that the evidence was insufficient to prove first degree burglary, and that his convictions for second degree assault and felony harassment are barred by double jeopardy and should have counted as one offense under the `same criminal conduct' rule. We affirm.
Facts
Chappell moved out of the rental house he shared with his wife, Karri Moran, on December 26, 2002. His name remained on the lease with Moran's. Moran let him back into the house a few times afterward to retrieve his belongings and to spend the night, but when he approached the house on January 7, 2003, she refused him entry because he was so angry. Chappell had thrown a hammer through the back window of a truck Moran used earlier in the day because he was upset with her.
Chappell tried to enter through the front door and became infuriated when he discovered that it was locked. Moran told him to go away, but he went around to the back door, which was also locked, and broke through the outside door and then through the kitchen door. By that time, Moran was on the phone calling 911. Chappell struck Moran on the head with an aerosol can and tried to smother her, disconnecting the 911 call. He then went into the bedroom and took a knife from the wall. Returning to the living room where Moran was on the couch, he threatened to kill her. After Moran covered herself with a pillow, Chappell struck her several times with the knife and left.
The police officer who responded to the 911 call entered the house to find Moran hysterical and bleeding from the forehead. The State charged Chappell with first degree burglary — domestic violence, second degree assault — domestic violence, and felony harassment — domestic violence.
Moran testified to the events described above as a witness for the State, and then was called by the defense to testify about Chappell's ongoing permission to enter the house after the couple separated. After her latter testimony, the State proposed the following instruction on unlawful entry, without objection from Chappell:
A person enters or remains unlawfully in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain.
With a charge of burglary, the controlling question is one of occupancy or possession, rather than title or ownership, at the time the offense was committed.
Clerk's Papers at 60. The court gave the proposed instruction to the jury.
After the jury found Chappell guilty as charged, the court imposed a standard range sentence. The defense did not dispute the offender score on which that sentence was based or argue that any of Chappell's offenses should count as one under the `same criminal conduct' rule.
Chappell now appeals, arguing that the court's instruction on unlawful entry was an unlawful comment on the evidence as well as a misstatement of the law, that the State produced insufficient evidence to convict him of first degree burglary, that his convictions for second degree assault and felony harassment are barred by double jeopardy and merger, and that those two offenses should count as one for sentencing purposes.
I. Instruction 10 — Unlawful Entry
As stated, Chappell argues that the court's instruction defining unlawful entry violated the constitutional prohibition against judicial comments on the evidence. Wash. Const. art. IV, sec. 16; State v. Hansen, 46 Wn. App. 292, 300, 730 P.2d 706, 737 P.2d 670 (1986). He also contends that the instruction inaccurately stated the law and violated his right to a fair trial. See State v. Fesser, 23 Wn. App. 422, 423-24, 595 P.2d 955, review denied, 92 Wn.2d 1030 (1979). Because Chappell's attacks on instruction 10 are based on constitutional grounds, he may raise them on appeal despite his failure to except to the instruction at trial. See State v. Deal, 128 Wn.2d 693, 698, 911 P.2d 996 (1996).
Trial judges are prohibited from commenting upon the evidence presented at trial. Wash. Const. art. IV, sec. 16; Deal, 128 Wn.2d at 703. `An impermissible comment is one which conveys to the jury a judge's personal attitudes toward the merits of the case or allows the jury to infer from what the judge said or did not say that the judge personally believed the testimony in question.' State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991). A jury instruction that does no more than accurately state the law pertaining to an issue does not constitute an impermissible comment on the evidence by the trial judge. State v. Woods, 143 Wn.2d 561, 591, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001). Our examination of whether instruction 10 constitutes a comment on the evidence thus implicates Chappell's second challenge to the instruction — that it also is a misstatement of the law.
As Chappell acknowledges, the first paragraph of instruction 10 is based on pattern jury instruction 65.02, while the second paragraph comes from State v. Schneider, 36 Wn. App. 237, 673 P.2d 200 (1983). 11A Washington Pattern Jury Instructions: Criminal 65.02, at 33 (2d ed. 1994). In Schneider, the defendant asserted that the State had failed to prove that she entered her estranged husband's residence unlawfully because the house was community property. 36 Wn. App. at 240. The court held that she had misconstrued the offense of burglary, which is designed to protect the dweller. Schneider, 36 Wn. App. at 241. In charging burglary, the ownership or occupancy of the premises allegedly broken into must be alleged so as to negate the defendant's right to enter. State v. Klein, 195 Wn. 338, 341, 80 P.2d 825 (1938). Washington law has long held that the test for determining ownership is not one of legal title but one of occupancy or possession of the premises at the time the burglary was committed. Schneider, 36 Wn. App. at 241 (citing Klein, 195 Wash. at 342). To establish that an entry is unlawful, the State must introduce evidence that the entrant was `not then licensed, invited, or otherwise privileged to so enter or remain.' RCW 9A.52.010(3); Schneider, 36 Wn. App. at 241. The court found such evidence and concluded that the fact that the property burglarized was in community ownership does not by law preclude a burglary conviction of one of the owners. Schneider, 36 Wn. App. at 242.
This holding was cited in State v. Kilponen, 47 Wn. App. 912, 918, 737 P.2d 1024, review denied, 109 Wn.2d 1019 (1987), where the court affirmed the defendant's burglary conviction after he broke into the family home where his estranged wife resided. The Schneider holding was again cited in State v. Hummell, 68 Wn. App. 538, 539, 843 P.2d 1125 (1993), where an estranged husband hired the defendant to break into the family home and assault his wife. This court reversed the defendant's burglary conviction on a lesser included issue and declined to review his challenge to the instruction on unlawful entry. Hummell, 68 Wn. App. at 542. In doing so, however, we recommended that the trial court reconsider that instruction on remand and model it more closely on Schneider. Hummell, 68 Wn. App. at 542.
Chappell cites no law in arguing that the court's decision to add a paragraph to the unlawful entry instruction based on the holding in Schneider misstated the law, and we have found no criticism of that holding. Rather, it would appear that where the defendant in a burglary case is in a domestic relationship with the victim, and where the unlawful entry concerns the family home, the explanation that unlawful entry is based on occupancy rather than title or ownership is relevant and appropriate. Because Chappell does not succeed in showing that instruction 10 misstated the law, he also does not succeed in showing that it constituted a judicial comment on the evidence.
Having addressed the merits of Chappell's challenges to instruction 10, we need not address his alternative claim that he received ineffective assistance of counsel when his attorney failed to take exception to the instruction.
II. Sufficient Evidence of Burglary
Chappell argues here that the evidence was insufficient to sustain his conviction of first degree burglary.
Evidence is sufficient if, when viewed in the light most favorable to the prosecution, it permits a rational trier of fact to find each essential element of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Credibility determinations are for the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The trial court instructed the jury that to find Chappell guilty of first degree burglary, it had to find that he entered or remained unlawfully in a dwelling with the intent to commit a crime and that in doing so he was either armed with a deadly weapon or committed an assault. As stated, instruction 10 further informed the jury that a person enters premises unlawfully when he is not then licensed, invited, or otherwise privileged to so enter, and that the controlling question is one of occupancy or possession rather than title or ownership. Chappell argues that the State failed to prove that he entered the house or remained unlawfully therein because there was no evidence that he was prohibited from entering the home that he had temporarily left.
Moran testified that Chappell no longer had the right to live in the home the couple rented after she `kicked him out' the day after Christmas 2002. Report of Proceedings (RP) at 27. (Chappell told a police officer that he was living at an Olympia campsite at the time of the incident. RP at 45-46.) Moran added that Chappell had ongoing permission to enter the home to retrieve his belongings and even to spend the night a few times thereafter, but that she revoked that permission on January 7, 2003, by telling him to leave and by locking the doors because he was so angry with her. Thus, although Chappell had his wife's permission to enter the family home after he moved out, she withdrew that permission on January 7. Following that withdrawal, he entered the house by breaking through two doors.
In Schneider, the court observed that the defendant's method of entry — breaking the door latch — was inconsistent with any kind of permissive entry. 36 Wn. App. at 241. Chappell's actions in breaking through two locked doors were equally inconsistent with any kind of permissive entry. Viewed in the light most favorable to the prosecution, the evidence is sufficient to support the conclusion that Chappell entered the family home unlawfully on January 7, 2003, and to sustain his conviction of first degree burglary.
III. Double Jeopardy
Chappell argues here that his convictions for second degree assault and felony harassment are barred by double jeopardy and merger.
The guarantee against double jeopardy protects against multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). The double jeopardy clause is not violated, however, if the Legislature specifically authorizes multiple punishments. In the Matter of the Personal Restraint Petition of Burchfield, 111 Wn. App. 892, 895, 46 P.3d 840 (2002).
Because the second degree assault and felony harassment statutes do not address the issue of multiple punishments, we turn to the `same evidence' test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test examines `whether each provision requires proof of an additional fact which the other does not.' 284 U.S. at 304. If each offense includes elements not included in the other, double jeopardy does not prevent conviction for both. State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983).
As instructed here, the elements of second degree assault are (1) an intentional assault with (2) a deadly weapon. The pertinent elements of felony harassment are (1) a threat to kill immediately or in the future and (2) the person threatened was in reasonable fear that the threat would be carried out.
The elements of these offenses are not the same. To convict Chappell of harassment, the State had to prove that he made an express threat to kill Moran. The State was not required to prove a similar threat to convict him of assault; rather, the State had to prove that Chappell assaulted Moran with a deadly weapon. Nor did the State have to prove the assault to convict Chappell of harassment. Because each offense contains an element that the other does not, double jeopardy does not preclude Chappell's convictions for second degree assault and felony harassment.
The Blockburger test, however, is not always dispositive. The common-law merger doctrine is another way to determine whether the Legislature intended to punish the same conduct under two different criminal provisions. State v. Frohs, 83 Wn. App. 803, 811, 924 P.2d 384 (1996). This doctrine applies only when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code. State v. Pastrana, 94 Wn. App. 463, 477-78, 972 P.2d 557, review denied, 138 Wn.2d 1007 (1999). In other words, where the State necessarily proves one offense in order to prove another offense, the Legislature could not have intended two convictions for a single act. Burchfield, 11 Wn. App. at 897.
Here, it was not necessary to prove felony harassment in order to prove second degree assault. The convictions were based on two separate acts — a threat and an assault — and proof of one crime did not affect proof of the other. Consequently, the convictions do not merge and do not violate double jeopardy.
IV. Same Criminal Conduct
Chappell argues here that the offender score on which his sentence is based was calculated erroneously because the trial court failed to count his assault and harassment convictions as one offense under the `same criminal conduct' rule. As Chappell recognizes, a defendant's failure to challenge his offender score and to make the `same criminal conduct' argument at sentencing bars him from raising this argument on appeal. State v. Wilson, 117 Wn. App. 1, 21, 75 P.3d 573, review denied, 150 Wn.2d 1016 (2003). Chappell thus argues in the alternative that he received ineffective assistance of counsel when his attorney failed to make a same criminal conduct argument at his sentencing hearing.
To prove a claim of ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Prejudice is established if there is a reasonable probability that, except for counsel's errors, the result of the proceedings would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Scrutiny of counsel's performance is highly deferential, and there is a strong presumption of reasonableness. State v. Day, 51 Wn. App. 544, 553, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (1988).
When a defendant is convicted of two or more crimes, current offenses are treated as prior offenses for determining the offender score unless the current offenses encompass the same criminal conduct, in which case the current offenses count as one crime. RCW 9.94A.589(1)(a). `Same criminal conduct' means `two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.' RCW 9.94A.589(1)(a).
There is no question that Chappell's assault and harassment offenses were committed at the same time against the same victim. The question here is whether they involved the same criminal intent. Where the crimes charged have different statutory mental elements, they do not involve the same criminal conduct. State v. Hernandez, 95 Wn. App. 480, 485, 976 P.2d 165 (1999) (citing State v. Williams, 135 Wn.2d 365, 368, 957 P.2d 216 (1998)).
An essential element of second degree assault is specific intent either to cause bodily harm or to create apprehension of bodily harm. State v. Eakins, 127 Wn.2d 490, 496, 902 P.2d 1236 (1995). Felony harassment requires proof that a defendant knows he is communicating a threat of intent to cause bodily injury. State v. J.M., 144 Wn.2d 472, 481, 28 P.3d 720 (2001).
Because these mental elements intersect somewhat, we look to whether Chappell's intent, viewed objectively, changed between the harassment and the assault. See State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994). If the facts, viewed objectively, can only support a finding that Chappell had the same criminal intent with respect to each count, then the counts constitute the same criminal conduct. See State v. Rodriguez, 61 Wn. App. 812, 816, 812 P.2d 868, review denied, 118 Wn.2d 1006 (1991).
The facts here do not establish that Chappell had the same criminal intent when he threatened Moran and when he hit her. Viewed objectively, the facts support an inference that Chappell intended to frighten Moran when he threatened her and that he intended to cause physical harm when he struck her. Because the facts support a finding that Chappell had different criminal intents with respect to each count, they did not constitute the same criminal conduct. Accordingly, Chappell's attorney was not deficient in failing to raise the same criminal conduct issue during sentencing.
Finally, Chappell asserts that because of the cumulative error that occurred during his trial, his convictions must be reversed and he must receive a new trial. Having rejected Chappell's claims of error, we find no basis for reversal.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J. and QUINN-BRINTNALL, C.J. concur.