Opinion
No. 34697-4-II.
September 18, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-04403-2, Thomas P. Larkin, J., entered March 10, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
Paul I. Nunn appeals his conviction for first degree assault and attempted first degree robbery, arguing that the trial court erred in (1) admitting his statements about his reputation as an aggressive drug dealer, (2) imposing a 60-month firearm enhancement for his attempted robbery conviction, (3) including his juvenile convictions in his offender score, and (4) imposing restitution to the crime victims' compensation fund. We agree with Nunn that the trial court erred by imposing a 60-month firearm enhancement; otherwise, we find no error. We affirm Nunn's convictions, vacate the 60-month firearm enhancement, and remand for resentencing with a 36-month firearm enhancement.
FACTS
On September 3, 2004, Shaun Parker was shot in an alley behind a club in Tacoma. The police identified Paul Nunn as a suspect and arrested him in May 2005.
Nunn initially denied to the police that he was at the club on the night of the shooting. He explained that people were accusing him of the shooting because of his reputation as an aggressive drug dealer. When police told Nunn that a surveillance video showed him at the club on the night of the shooting, Nunn admitted that he had been there that night. He said he had some drinks and left before the shooting.
When the police then told Nunn that the surveillance video showed that he had contacted Parker shortly before the shooting, Nunn admitted that he had sold drugs to Parker. Nunn said that he acted as the middleman for a friend in the transaction, delivering drugs to Parker in exchange for cash. When he realized that Parker had given him only half the amount owed, Nunn told his friend and his friend then shot Parker. After the shooting, Nunn left the scene in another friend's car. He again said that he thought people were accusing him of the shooting because of his reputation for being aggressive.
Parker, however, denied that he was involved in any drug transaction that night. He testified that Nunn approached him, drew a weapon, and told him it was a robbery. Nunn shot Parker when Parker turned and ran away.
The State charged Nunn with first degree assault and attempted first degree robbery. Each charge included a firearm allegation. The jury convicted Nunn of both charges and found that he was armed with a firearm at the time he committed the crimes. The trial court imposed standard range sentences and 60-month firearm enhancements for each charge. The trial court also ordered Nunn to pay restitution to the crime victims' compensation fund.
ANALYSIS I. Nunn's Reputation Statements
Nunn contends that the trial court erred in admitting his statements that he believed people were linking him to the shooting because of his reputation as an aggressive drug dealer. He asserts that the statements were not relevant to any element of the charged crimes and were unfairly prejudicial.
We review a trial court's decision to admit evidence for an abuse of discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999) (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 482 P.2d 775 (1971)). Evidence is relevant if it has any tendency to make any fact at issue more or less probable than it would be without the evidence. ER 401. But a trial court must exclude even relevant evidence if its potential for prejudice substantially outweighs its probative value. ER 403.
The trial court admitted these statements because they showed how Nunn first denied being at the scene and attempted to explain why people connected him to the shooting.
False information a defendant gives to police is admissible as evidence of the defendant's consciousness of guilt. State v. Clark, 143 Wn.2d 731, 765, 24 P.3d 1006 (2001) (citing State v. Allen, 57 Wn. App. 134, 143, 788 P.2d 1084 (1990)). The challenged statements were part of Nunn's attempt to create a believable story that he was not involved in the shooting. Several witnesses, including Parker, identified Nunn as the shooter or placed him at the scene. Nunn tried to bolster his denial of the shooting by explaining that the witnesses named him because of his reputation as an aggressive drug dealer. Because the explanation completes the context of Nunn's denial, the trial court did not err in finding the statements relevant. Cf. State v. Demery, 144 Wn.2d 753, 761-62, 30 P.3d 1278 (2001) (plurality) (permitting introduction of third party statements made during interview to provide context to defendant's responses).
Nunn relies on State v. Perrett, 86 Wn. App. 312, 936 P.2d 426 (1997). In that case, the trial court admitted a defendant's statement about the police confiscating his guns on a prior occasion to show his demeanor on arrest. Perrett, 86 Wn. App. at 319. We held that the trial court abused its discretion in admitting the statement because the defendant's demeanor on arrest was not relevant to any element of the charged offense. Perrett, 86 Wn. App. at 319. But here, unlike in Perrett, Nunn's statements about his reputation were part of the false information he gave police and were therefore relevant to his consciousness of guilt. Clark, 143 Wn.2d at 765.
The trial court also considered the potential for prejudice from Nunn's statements. The statements were exculpatory when Nunn gave them, and the trial court excluded other witnesses' statements that the "word on the street" was that Nunn was the shooter. 1 Report of Proceedings (RP) at 80-81. And the detective did not testify that he personally thought Nunn was a dangerous or aggressive person; he merely recounted Nunn's own statements about his reputation. The trial court concluded that the probative value of the statements outweighed any possible prejudice to Nunn. We find no error.
II. Firearm Enhancement
Nunn next challenges the trial court's imposition of a 60-month firearm enhancement for his attempted first degree robbery conviction, arguing that the proper enhancement for the attempted crime is 36 months.
First degree robbery is a class A felony. RCW 9A.56.200(2). An attempt to commit a class A felony is a class B felony unless otherwise specified. RCW 9A.28.020(3)(a), (b). Because RCW 9A.28.020(3)(a) does not specify that attempted first degree robbery is a class A felony, it is a class B felony. RCW 9A.28.020(3)(b).
RCW 9.94A.533(3) governs firearm enhancements. The statute's first sentence provides:
The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010 and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any firearm enhancements based on the classification of the completed felony crime.
CW 9.94A.533(3). Its third sentence provides:
[I]f the offender is being sentenced for an anticipatory offense under chapter 9A.28 RCW to commit one of the crimes listed in this subsection as eligible for any firearm enhancements, the following additional times shall be added to the standard sentence range determined under subsection (2) of this section based on the felony crime of conviction as classified under RCW 9A.28.020.
Subsection (2) provides that the standard range sentence for an anticipatory offense is 75 percent of the standard range for the completed offense. RCW 9.94A.533(2).
RCW 9.94A.533(3). The firearm enhancement for a class A felony is 60 months. RCW 9.94A.533(3)(a). The firearm enhancement for a class B felony is 36 months. RCW 9.94A.533(3)(b).
At Nunn's sentencing hearing, the State presented a judgment and sentence that erroneously listed Nunn's conviction as first degree robbery, not attempted first degree robbery. Nunn pointed out the mistake and the trial court corrected the error, reducing the standard range for that count. But when Nunn pointed out that the attempted crime was a class B felony, not a class A felony, and the firearm enhancement should be less than 60 months, the State asserted that it believed the enhancement was the same for both crimes. The trial court imposed a 60-month firearm enhancement for Nunn's attempted first degree robbery conviction.
The State now maintains that the trial court correctly imposed a 60-month firearm enhancement for Nunn's attempted first degree robbery conviction because the first and third sentences of RCW 9.94A.533(3) are contradictory and we should give effect to the legislature's intent to impose increased penalties for offenders who use firearms in their crimes. The State contends that the first sentence of RCW 9.94A.533(3) bases the length of a firearm enhancement on the completed crime's classification, thus conflicting with the third sentence's requirement that the length of a firearm enhancement for an anticipatory crime is based on the anticipatory crime's classification.
Statutory interpretation is a question of law that we review de novo. State v. J.P., 149 Wn.2d 444, 449, 69 P.3d 318 (2003). If a statute's meaning is plain on its face, we follow that plain meaning without resorting to statutory construction. State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003). If, however, a statute is subject to more than one reasonable interpretation, the statute is ambiguous and we construe the statute to reach the legislature's intent. Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546-47, 909 P.2d 1303 (1996).
RCW 9.94A.533(3) is not ambiguous. The first sentence of the statute identifies which offenses are eligible for firearm enhancements; the third sentence establishes the length of an enhancement for an anticipatory offense. The first sentence provides that firearm enhancements apply only when a court sentences an offender for an offense eligible for a firearm enhancement. Contrary to the State's assertion, the language "based on the classification of the completed felony crime" at the end of that sentence does not state the basis for the length of a firearm enhancement. Rather, that language directs a court to look at the completed crime to determine if a crime is eligible for firearm enhancements. For example, RCW 9.94A.533(3)(f) excludes theft of a firearm from firearm enhancements. The first sentence of the statute clarifies that attempted theft of a firearm is also ineligible for firearm enhancements.
The State's proposed reading would have this court ignore most of the first sentence, reading it as: "The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, . . . based on the classification of the completed felony crime." But we must give effect to all the language of a statute. J.P., 149 Wn.2d at 450. And unless a contrary intention appears in a statute, qualifying words and phrases refer only to the last antecedent. In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 781-82, 903 P.2d 443 (1995). The language "based on the classification of the completed felony crime" qualifies only the immediately preceding phrase: "the offender is being sentenced for one of the crimes listed in this subsection as eligible for any firearm enhancements." There is no evidence that the legislature intended the phrase "based on the classification of the completed felony crime" to qualify the first clause of the sentence. Read as a whole, the sentence does not conflict with the plain meaning of the third sentence, which clearly provides that the length of a firearm enhancement for an anticipatory crime is based on that crime's classification under RCW 9A.28.020.
Because Nunn was convicted of attempted first degree robbery, a class B felony, the proper firearm enhancement was 36 months, not 60 months. RCW 9.94A.533(3)(b); RCW 9A.28.020(3). Accordingly, we remand for resentencing with the proper firearm enhancement.
III. Offender Score
Nunn further asserts that the trial court violated his jury trial and due process rights when it included his juvenile offenses in his offender score. He maintains that, because a jury does not find guilt beyond a reasonable doubt for juvenile offenses, they are not "prior convictions" for purposes of Apprendi and that Blakely therefore requires a jury finding that they occurred beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").
Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (holding that the relevant "statutory maximum" for Apprendi purposes "is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant ").
Since Nunn filed his brief, however, the Washington Supreme Court has held that juvenile adjudications fall within the prior conviction exception of Apprendi and are not facts that a jury must find under Blakely. State v. Weber, 159 Wn.2d 252, 255, 149 P.3d 646 (2006). Nunn's argument therefore fails. The trial court did not err in including his juvenile offenses in his offender score.
IV. Restitution
Finally, Nunn assigns error to the trial court's restitution order, arguing that the State failed to prove that his criminal conduct caused Parker's damages.
At Nunn's sentencing hearing, the State presented documentation from the Department of Labor and Industries requesting $26,857.27 in restitution for amounts it paid to Parker from the crime victims' compensation fund. Over Nunn's objection, the court admitted a "restitution worksheet" as an exhibit at Nunn's sentencing hearing. This exhibit is not part of the record on appeal, although the State included it as an appendix to its brief. Nunn objected to the sufficiency of the State's evidence, and the trial court set a restitution hearing.
At the restitution hearing, the State requested $29,793.92 in restitution. Nunn again objected to the sufficiency of the State's evidence, arguing that the State's documentation did not prove that his assault caused Parker's injuries. The trial court admitted no exhibits and the State has not provided us with a copy of the documentation it presented at this hearing. The trial court continued the hearing to allow the State to provide further documentation, but Nunn's counsel did not appear at the later hearing. The court did not make a record of any additional evidence the State may have had at that time. It ordered Nunn to pay $299.98 to Parker for the clothing he was wearing at the time of the shooting and $29,493.94 to the crime victims' compensation fund for the amount it paid to Parker.
Nunn had waived his right to be present at the restitution hearing.
We review a trial court's restitution order for an abuse of discretion. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Enstone, 137 Wn.2d at 679-80. The State bears the burden of proving the restitution amount by a preponderance of the evidence. State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350 (2005).
In general, a trial court may order restitution in an amount "based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury." RCW 9.94A.753(3). In such a case, the State must prove that the defendant's criminal conduct caused the victim's damages. Enstone, 137 Wn.2d at 682. But "[r]egardless of the provisions of subsections (1) through (6) of [the restitution statute], the court shall order restitution in all cases where the victim is entitled to benefits under the [C]rime [V]ictims' [C]ompensation [A]ct, chapter 7.68 RCW." RCW 9.94A.753(7) (emphasis added).
The Crime Victims' Compensation Act established a program to provide benefits to innocent victims of criminal acts. RCW 7.68.030. The Act defines a "victim" to include "a person who suffers bodily injury or death as a proximate result of a criminal act of another person." RCW 7.68.020(3) (emphasis added). Payment of benefits to a victim "creates a debt due and owing to the department [of Labor and Industries] by any person found to have committed the criminal act in either a civil or criminal court proceeding in which he or she is a party." RCW 7.68.120(1).
Here, the State presented evidence that the crime victims' compensation fund paid benefits to Parker as the result of Nunn's assault. Thus, the plain language of RCW 9.94A.753(7) required the trial court to order Nunn to pay restitution to the fund.
Nevertheless, Nunn relies on State v. Dedonado, 99 Wn. App. 251, 257, 991 P.2d 1226 (2000), and State v. Dennis, 101 Wn. App. 223, 227, 6 P.3d 1173 (2000), for the proposition that the State does not establish a causal connection when a victim or insurer simply submits proof of expenditures. Those cases, however, did not involve payments from the crime victims' compensation fund. Dennis, 101 Wn. App. at 226; Dedonado, 99 Wn. App. at 253-55. RCW 9.94A.753(7) and RCW 7.68.120(1) entitle the Department of Labor and Industries to restitution for the funds it paid Parker as a result of Nunn's assault. And RCW 9.94A.753(7) directs the trial court to bypass the procedures of RCW 9.94A.753(1)-(6) when the crime victims' compensation fund has made payments.
The trial court did not abuse its discretion in ordering Nunn to pay restitution to the crime victims' compensation fund for the benefits it paid Parker as the result of Nunn's assault.
V. Statement of Additional Grounds
A. Peremptory Challenge
In his pro se statement of additional grounds (SAG), Nunn asserts that the prosecutor violated his rights by using a peremptory challenge to remove the only African American juror in the jury pool. He also maintains that because the jury did not contain a cross-section of the community, it was not a jury of his peers and was not impartial.
RAP 10.10.
A prosecutor violates a defendant's right to equal protection by exercising a peremptory challenge on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). To contest a peremptory challenge, the defendant must first make out a prima facie case of racial motivation. Batson, 476 U.S. at 96-97. The burden then shifts to the State to articulate a race-neutral explanation for the exercise of the peremptory challenge. Batson, 476 U.S. at 97-98.
The trial court then decides if the defendant has established purposeful discrimination. Batson, 476 U.S. at 98. We give considerable deference to the trial court's determination and will uphold it unless clearly erroneous. State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991)).
At the conclusion of voir dire, Nunn objected to the State's exercise of a peremptory challenge against juror 27, who would have been the second alternate juror and who was the only African American in the jury pool. The trial court overruled Nunn's objection, finding that he did not establish a prima facie case of racial motivation and, even if he had, the prosecutor articulated a satisfactory race-neutral explanation for use of the peremptory challenge.
Nunn offered nothing to support a prima facie finding of racial motivation other than the fact that Nunn is African American and juror 27 was the only African American in the jury pool. The prosecutor listed seven reasons why he exercised a peremptory challenge against juror 27. The trial court found that juror 27's prior arrest, that he had heard about the case and was familiar with the club where the assault took place, and that he referred to the trial court as "the big kahuna" were valid race-neutral reasons for exercising the peremptory challenge. 4 RP at 19-20.
These reasons support the trial court's determination that the prosecutor's motive was race-neutral. We find no abuse of discretion.
Additionally, while a criminal defendant has the right to a jury that is representative of his community, he is not entitled to exact cross-representation in the jury pool. State v. Hilliard, 89 Wn.2d 430, 440-42, 573 P.2d 22 (1977). The defendant bears the burden of showing that a jury pool selection method does not obtain a fair cross-section of his community or that it systematically excludes a segment of the population. Hilliard, 89 Wn.2d at 440. Nunn does not identify any defects in the jury pool selection method used in his case, nor does he explain how the jury was not impartial. And to the extent that Nunn bases his argument on matters outside the record, he must present the arguments with supporting materials in a personal restraint petition. B. Prosecutorial Misconduct
Nunn also asserts that the prosecutor committed misconduct when he said in his closing argument that Nunn and his family had "powerful influence" over where a witness for the State, Solange Williams, chose to live. SAG at 1.
Williams testified that she was in the alley behind the club when the shooting occurred but that she did not see shots fired; she denied telling detectives that she saw Nunn shoot Parker. But Detective Dan Davis testified that Williams told him the day after the shooting that she had seen Nunn confront Parker in what looked like a robbery, that Parker and Nunn had engaged in a struggle, and that she saw Nunn shoot Parker. Williams also testified that people on the streets considered her to be a "snitch." 5 RP at 99-100. She said that, although she had planned to move anyway, she moved from Tacoma in part because she could not "live comfortably" when people were daily confronting her about the case. 5 RP at 115-17. She criticized the detectives for interviewing her at the scene of the assault where she worked because people at the club would label her a snitch if they saw her talking to the police.
In his closing, the prosecutor stated:
Think about the context of where [Williams is] coming from as she testifies in here. She's in this court. She's in the presence of a guy who shot a guy a couple times. She's in the presence of the rest of the people in this court, and she's being asked to say who did it. And she also talked a little bit about just talking to the police, just giving a statement to the police. What did it cause her to do? She had to leave her home; she had to move to Fife and then out to Lakewood. That's some pretty powerful influence. Is there any surprise that she comes in here and displays what Shaun Parker didn't, an extreme reluctance to finger the defendant.
10 RP at 64.
Prosecutorial misconduct requires a showing that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)). The defendant bears the burden of showing both prongs of prosecutorial misconduct. Hughes, 118 Wn. App. at 727. Prejudice exists if there is a substantial likelihood that the prosecutorial misconduct affected the verdict. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). If a defendant does not object or request a curative instruction, the defendant has waived the error unless we find the remark "so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997) (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)).
Because Nunn did not object to the prosecutor's statement, he must show that it was so flagrant and ill-intentioned that a curative instruction could not have neutralized the resulting prejudice. See Brown, 132 Wn.2d at 561. The prosecutor perhaps overstated the influence of this case on Williams' decision to move away from Tacoma. But this misstatement was not so flagrant that a curative instruction would have failed to neutralize any resulting prejudice. The prosecutor did not commit misconduct in his closing.
We affirm the convictions, vacate the 60-month firearm enhancement, and remand for resentencing with a 36-month firearm enhancement.
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.
VAN DEREN, A.C.J. and PENOYAR, J., concur.