Opinion
Nos. 26469-6-III; 27011-4-III.
November 20, 2008.
Appeals from a judgment of the Superior Court for Benton County, No. 07-1-00052-0, Robert G. Swisher, J., entered September 5, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Korsmo, JJ.
Michael Allen Pourier appeals his convictions for two counts of first degree assault and one count of first degree burglary. He contends that (1) the evidence was insufficient to support the burglary conviction, (2) the trial court erred in holding trial in his absence, (3) the first degree assault to-convict instruction and special verdict forms were improper judicial comments, and (4) the trial court erred in imposing a 60-month firearm enhancement. In his statement of additional grounds, Mr. Pourier contends instructional error deprived him of a fair trial and the evidence was insufficient to support his convictions. We affirm the convictions, but vacate the firearm sentencing enhancement.
FACTS
During the early morning of January 9, 2007, Mr. Pourier and two others broke down the door to Jeramie Vannauker's and Wendy Gray's bedroom. Mr. Pourier hit Mr. Vannauker with a club and another person stabbed him with a broken beer bottle. Mr. Pourier was later taken to an emergency room where he was treated for life threatening injuries. The State charged Mr. Pourier with two counts of first degree assault and one count of first degree burglary, which included special allegations of being armed with deadly weapons and a firearm.
On the second day of trial, Mr. Pourier failed to appear for court. The court recessed to give law enforcement an opportunity to investigate Mr. Pourier's absence. When court reconvened, Detective Lee Cantu reported that he had checked local jails and hospitals and questioned some of Mr. Pourier's friends and family, but had not been able to locate him. The court made a preliminary finding that Mr. Pourier's absence was voluntary and continued the trial without him.
Mr. Vannauker and Ms. Gray described the events leading to the attack. They testified that a few days before the attack, they had moved to a mobile home where they rented a bedroom. Another person also rented space in the mobile home. Ms. Gray testified that she had recently broken up with Shannon Younger and that he was angry she was dating Mr. Vannauker.
According to her, Mr. Younger was telling people that she had stolen one of his guns. The day before the attack, Mr. Pourier told her that Mr. Younger wanted his gun returned.
During the evening of January 8, the other tenant had a party at the mobile home. Mr. Vannauker and Ms. Gray overheard comments directed at them about somebody being hurt or shot. They barricaded themselves in their bedroom and fell asleep around 2:00 a.m. A few hours later, they awoke to the bedroom door being smashed in. Mr. Pourier, who was wielding a club, was the first person through the door. Two others followed. Mr. Vannauker testified that Mr. Pourier hit him with the club while another person stabbed him with a broken beer bottle. He stated, "I knew that I was dying . . . because my ears were ringing, and I wasn't able to breathe." I Report of Proceedings (RP) at 81. Ms. Gray testified that during the attack, Mr. Pourier kept asking where the gun was located. He eventually found it under the bed and took it with him when he left.
Dr. Kevin Gurney treated Mr. Vannauker in the emergency room. He testified that Mr. Vannauker had multiple stab wounds and a collapsed lung. He testified that if left untreated, Mr. Vannauker could have died. He also stated that a broken bottle or a club can cause fatal injuries.
The to-convict instruction for count II stated that the assault was "committed with a club, which was a deadly weapon." Clerk's Papers (CP) at 39 (Instruction 11). The court defined a deadly weapon as "any weapon, device, or instrument, which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm." CP at 42 (Instruction 14). The court also gave the following special verdict instruction:
For purposes of a special verdict . . .
. . . .
A deadly weapon is an implement or instrument that has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are examples of deadly weapons: blackjack, sling shot, billy, sand club.
CP at 51 (Instruction 23).
It also instructed the jury that: "For purposes of a special verdict a pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded." CP at 52 (Instruction 24).
The special verdict forms pertaining to the first degree assault charges asked the jury whether the defendant or an accomplice were "armed with a club, a deadly weapon" and "armed with a bottle, a deadly weapon" during the commission of the crimes. CP at 21, 22. The special verdict form pertaining to the burglary charge asked whether the defendant was armed with "a .32 caliber pistol, a deadly weapon" during the commission of the burglary. CP at 20. The jury found Mr. Pourier guilty on all counts and special verdicts.
Mr. Pourier was eventually apprehended. Before sentencing, the court gave him an opportunity to explain his absence. Mr. Pourier elected not to respond. The court imposed maximum standard range sentences on each count plus deadly weapon sentence enhancements of 24 months and 60 months for the use of a firearm. Mr. Pourier appeals.
ANALYSIS
Mr. Pourier first contends that the evidence was insufficient to convict him of first degree burglary because there was no evidence that he unlawfully entered or remained in the mobile home. He also argues that the bedroom where the assault occurred was not a separate building under the burglary statute.
The test for sufficiency of the evidence is whether, when viewed in the light most favorable to the State, a rational trier of fact could find that the State proved the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
"A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and . . . (a) is armed with a deadly weapon, or (b) assaults any person." RCW 9A.52.020(1). "A person 'enters or remains unlawfully' in or upon premises when he is not then licensed, invited, or otherwise privileged to so enter or remain." RCW 9A.52.010(3).
We first address Mr. Pourier's contention that the bedroom in the mobile home was not a "building" under RCW 9A.04.110(5). He argues that the mobile home was akin to a single family residence where each family member has a privacy interest in the entire house, as opposed to a multi-unit building where each tenant has a distinct interest in his or her own room.
RCW 9A.04.110(5) defines a "building" as "any dwelling, fenced area . . . or any other structure used for lodging of persons or for carrying on business therein . . .; each unit of a building consisting of two or more units separately secured or occupied is a separate building." (Emphasis added.) In a multi-unit structure, each tenant has a privacy interest in his room or apartment that is separate and distinct from the interests of the other tenants. State v. Thomson, 71 Wn. App. 634, 644-45, 861 P.2d 492 (1993). This is because the law of burglary was designed to protect a dweller; thus, the controlling question is occupancy rather than ownership. See State v. Schneider, 36 Wn. App. 237, 241, 673 P.2d 200 (1983) (finding a landlord guilty of burglarizing the premises of her tenant); State v. Deitchler, 75 Wn. App. 134, 876 P.2d 970 (1994) (evidence locker within a larger police station not a building because police station was occupied by a single tenant and the locker was not separately occupied).
We reject Mr. Pourier's assertion that the mobile home was the equivalent of a single family dwelling. The record shows that Mr. Vannauker and Ms. Gray shared occupancy of the home with another tenant. Mr. Vannauker and Ms. Gray rented a bedroom that was separately secured and occupied. As such, their interest in that space was separate from their cotenant's. Accordingly, we find that their bedroom was a separate building for purposes of burglary.
We next address whether Mr. Pourier's entry was unlawful. To establish unlawful entry, the State must provide evidence that the entrant was "not then licensed, invited, or otherwise privileged to so enter or remain." RCW 9A.52.010(3). In this case, the record is unclear whether Mr. Pourier was invited to the party. Thus, we cannot say that his initial presence in the mobile home was unlawful. Therefore we must ask whether Mr. Pourier's remaining on the premises was unlawful.
Unlawful remaining occurs "when (1) a person has lawfully entered a building pursuant to invitation, license or privilege; (2) the invitation, license or privilege is expressly or impliedly limited; (3) the person's conduct violates such limits; and (4) the person's conduct is accompanied by intent to commit a crime in the building." Thomson, 71 Wn. App. at 640-41. Limitation or revocation of a privilege to be on the premises may be inferred from the circumstances. State v. Collins, 110 Wn.2d 253, 261, 751 P.2d 837 (1988).
Mr. Pourier contends that because "Mr. Vannauker was not the person who permitted Mr. Pourier's lawful entry, . . . his natural concern for his own safety does not evidence any implied limitation on Mr. Pourier's activities with in [sic] the residence." Br. of Appellant at 8. This argument is entirely without merit. Mr. Vannauker and Ms. Gray had closed their bedroom door and fully barricaded themselves inside their bedroom, placing a table and a speaker box between their bed and the door. Mr. Pourier and his codefendants physically forced their way into the bedroom, shattering the door in the process. The barricaded door was obvious evidence that there was an implied restriction to the bedroom. Under these circumstances, the only conclusion is that Mr. Pourier's entry into the barricaded bedroom was unlawful under the burglary statute. See Schneider, 36 Wn. App. at 241 ("the method of entry — breaking the door latch — is inconsistent with any kind of permissive entry"). We conclude the evidence was sufficient to establish first degree burglary.
Next, Mr. Pourier contends that the court abused its discretion when it found him to be voluntarily absent from trial. He argues that he was denied the opportunity to explain his absence and rebut the court's preliminary finding that his absence was voluntary.
We review a judge's decision to proceed with trial in the absence of a criminal defendant for abuse of discretion. State v. Garza, 150 Wn.2d 360, 365-66, 77 P.3d 347 (2003). A criminal defendant has a fundamental right to be present at trial, but this right may be knowingly and voluntarily waived. Id. at 367. A waiver is implied where a defendant is voluntarily absent from trial after proceedings commence. Id.; CrR 3.4(b).
CR 3.4(b) provides: "The defendant's voluntary absence after the trial has commenced in his or her presence shall not prevent continuing the trial to and including the return of the verdict."
However, before trial proceeds, the trial court must (1) inquire into the circumstances of a defendant's disappearance to determine whether the absence was voluntary, (2) make a preliminary finding of voluntariness, and (3) give the defendant an opportunity to explain his absence before sentencing. State v. Thomson, 123 Wn.2d 877, 881, 872 P.2d 1097 (1994). In determining voluntariness, the trial court must indulge every reasonable presumption against a voluntary waiver. Garza, 150 Wn.2d at 367.
Here, Mr. Pourier took off after the first day of trial. The record shows that Mr. Pourier asked defense counsel what would happen if he failed to show up for the second day of trial. Defense counsel advised Mr. Pourier to "Get it together." II RP at 108. Mr. Pourier failed to show for trial at 8:30 a.m. the next day. The trial court recessed until 9:30. At 9:45 a.m., it ordered law enforcement to contact all the local jails and hospitals. When court reconvened at 11:30, a detective informed the court that the U.S. Marshall Service was assisting with the search and that his calls to jails and hospitals had been fruitless. The court then called a recess until 2:30 p.m. and ordered law enforcement to try to contact Mr. Pourier's family for information they might have on his whereabouts.
When court reconvened on the matter, a detective testified that he had contacted Mr. Pourier's close friend and a sister. Neither had heard from Mr. Pourier, but his sister guessed that he had fled to Yakima where his children lived. Based on this information, the court made a preliminary finding that Mr. Pourier's absence was voluntary. The trial proceeded in his absence.
The court reconvened after Mr. Pourier was apprehended. The trial court gave Mr. Pourier the opportunity to rebut its preliminary finding that his absence was voluntary, but he declined to give a reason for his absence. The matter was continued one week and Mr. Pourier was given another opportunity to explain his absence. Mr. Pourier's new attorney informed the court that Mr. Pourier wished to remain silent and had been advised that his silence would be likely to result in a finding that his absence was voluntary. When specifically questioned on the matter by the court, Mr. Pourier elected not to speak.
In view of this record, Mr. Pourier's argument that the court failed to afford him the opportunity to explain his absence is meritless. The trial court did not abuse its discretion in permitting the trial to continue in Mr. Pourier's absence.
Mr. Pourier next contends that the to-convict instruction for count II, stating "the assault was committed with a club, which was a deadly weapon," CP at 39, constituted a judicial comment on the evidence and effectively instructed the jury that the club was a deadly weapon as a matter of law. He contends that "by specifically telling the jury that the club 'was a deadly weapon' the court relieved the State of its burden of proving this essential fact." Supp. Br. of Appellant at 10.
He also assigns error to the special verdict forms that asked: "Was the defendant or an accomplice armed with a club, a deadly weapon" and "Was the defendant or an accomplice armed with a bottle, a deadly weapon." CP at 21, 22. He asserts that the special verdict forms are judicial comments on the evidence.
Mr. Pourier did not object to the instruction or special interrogatories at trial. But error may be raised for the first time on appeal if it invades a fundamental right of the accused such as the right to a jury free from judicial comment on the facts. State v. Levy, 156 Wn.2d 709, 719, 132 P.3d 1076 (2006). We therefore review the instruction and special verdict forms at issue here. Jury instructions are reviewed de novo within the context of the jury instructions as a whole. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
"Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Wash. Const. art. IV, §§ 16. "The purpose of prohibiting judicial comments on the evidence is to prevent the trial judge's opinion from influencing the jury." State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). It is thus error for a judge to "instruct the jury that matters of fact have been established as a matter of law." State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997).
A long line of cases has addressed instructions using language similar to those at issue here. See, e.g., Levy, 156 Wn.2d 709; State v. Jones, 106 Wn. App. 40, 21 P.3d 1172 (2001); Becker, 132 Wn.2d 54. For example, in Levy, the court reviewed a to-convict instruction that referenced a crowbar as a deadly weapon. A crowbar qualifies as a deadly weapon only "if it 'has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death.'" Levy, 156 Wn.2d at 721-22 (quoting RCW 9.94A.602). The court held that the instruction effectively told the jury that the crowbar was a deadly weapon and "was likely a judicial comment because the jury need not consider whether the State proved that its use caused it to be qualified as a deadly weapon." Id. at 722.
Similarly here, the effect of instruction 11 and the special verdict forms was to tell the jury that the club and broken bottle were deadly weapons. Under Levy, these references to the club and bottle as deadly weapons were comments on the evidence and are presumed prejudicial. Id. at 725.
The burden is on the State to show there was no prejudice. Id. The State argues that there was never any dispute that the club and bottle were deadly weapons and that when the jury instructions are read as a whole "it is clear that the State had to prove and the jury had to find that the club and bottle were deadly weapons beyond a reasonable doubt." Br. of Resp't at 35.
We find ample evidence that the club and bottle were deadly weapons. Mr. Pourier and a codefendant repeatedly hit and stabbed Mr. Vannauker with a broken beer bottle and a club. Mr. Vannauker testified that he was hit in the head and back with what he described as a "billy" club. I RP at 77. Ms. Gray saw Mr. Pourier hit Mr. Vannauker on his head and neck with what she called a "baton." II RP at 185. Dr. Gurney testified that Mr. Vannauker's injuries, including a collapsed lung, were life threatening. He also stated a beer bottle and club, used as they were here, could cause death or serious injury. No one could realistically conclude that the club and broken bottle, used as they were here, were not deadly weapons. Levy, 156 Wn.2d at 727.
We next address whether the trial court erred in imposing a firearm enhancement. This issue implicates Mr. Pourier's Sixth Amendment rights to have a jury decide a sentence enhancement. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). As a constitutional challenge, it is reviewed de novo. State v. Cubias, 155 Wn.2d 549, 552, 120 P.3d 929 (2005).
Mr. Pourier argues that the court was without authority to impose the enhancement because although the legislature created a procedure for the imposition of a deadly weapon enhancement under RCW 9.94A.602, it did not create a comparable one for imposition of a firearm enhancement. We recently rejected this argument in another case, noting that the deadly weapon special verdict statute supplies the court's authority to impose a firearm enhancement, inasmuch as a firearm is a type of deadly weapon expressly included in the statutory definition. State v. Anderson, 144 Wn. App. 85, 90-91, 180 P.3d 885 (2008) (citing State v. Nguyen, 134 Wn. App. 863, 870, 142 P.3d 1117 (2006)).
Next, relying on State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008), Mr. Pourier argues that imposition of the firearm enhancement is improper because the State failed to properly charge the firearm enhancement or correctly instruct the jury regarding the definition of a firearm and the elements of being armed with a firearm for sentence enhancement purposes. Mr. Pourier is correct.
In Recuenco, the Washington Supreme Court held that sentencing enhancements must be included in the information. Recuenco, 163 Wn.2d at 434. It stated,
When the term "sentence enhancement" describes an increase beyond the maximum authorized statutory sentence, it becomes the equivalent of an "element" of a greater offense than the one covered by the jury's guilty verdict. . . . Washington law requires the State to allege in the information the crime which it seeks to establish. This includes sentencing enhancements.
Id. (footnote and citation omitted) (internal quotation marks omitted) (citing State v. Crawford, 159 Wn.2d 86, 94, 147 P.3d 1288 (2006)). Because the State failed to notify Mr. Recuenco that it was seeking a firearm enhancement, the court held that he could not be sentenced under the enhancement and vacated the firearm sentence. Id. at 440.
In this case, the amended information did not allege a firearm sentencing enhancement under RCW 9.94A.533(3). It simply charged Mr. Pourier with a "NOTICE OF DEADLY WEAPON FIREARM ALLEGATION" under RCW 9.94A.602. CP at 60. This was inadequate. RCW 9.94A.602 defines the elements of a deadly weapon special verdict, but this did not give Mr. Pourier notice of a firearm sentencing enhancement.
Further, as in Recuenco, the jury in this case was not given the special verdict firearm instruction under 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 2.10.01 (2d ed. Supp. 2005) (WPIC), which provides:
For purposes of a special verdict, the State must prove beyond a reasonable doubt that the defendant was armed with a firearm at the time of the commission of the crime [in Count].
A person is armed with a firearm if, at the time of the commission of the crime, the firearm is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there was a connection between the firearm and the defendant [or an accomplice]. The State must also prove beyond a reasonable doubt that there was a connection between the firearm and the crime. In determining whether this connection existed, you should consider the nature of the crime, the type of firearm, and the circumstances under which the firearm was found.
. . . .
A "firearm" is a weapon or device from which a projectile may be fired by an explosive such as gunpowder.
Recuenco held that the jury must be given this instruction to properly evaluate whether the facts support a firearm enhancement and that in the absence of such an evaluation, the trial court lacked the authority to impose the firearm enhancement. Recuenco, 163 Wn.2d at 439.
Here, the jury returned a special verdict that Mr. Pourier was "armed with a .32 caliber pistol, a deadly weapon," but it was not given the special verdict firearm instruction under WPIC 2.10.01. CP at 20. The court's failure to properly instruct the jury on the law requires us to vacate the enhancement. See Recuenco, 163 Wn.2d at 442 ("[I]t can never be harmless to sentence someone for a crime not charged, not sought at trial, and not found by a jury. In this situation, harmless error analysis does not apply.").
Pro Se Additional Grounds
Mr. Pourier raises additional grounds for our review. First, he argues that the jury instructions and special verdict forms referencing the club and bottle as deadly weapons relieved the State of its burden of proving the bottle and club were deadly weapons. We have already held that these instructions constitute improper judicial comments on the evidence, but that the error is harmless.
Next, Mr. Pourier contends that the evidence was insufficient to support his convictions for first degree assault. "A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm . . . [a]ssaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death." RCW 9A.36.011(1)(a).
As to count II (assault with a club), Mr. Pourier argues there was insufficient evidence to prove that he used force to produce great bodily harm or death, that he acted with intent to inflict great bodily harm, or that he was armed with a deadly weapon. He claims that the evidence fails to establish that the club was used in a manner readily capable of causing death or great bodily harm. Regarding count I (assault with a broken bottle), Mr. Pourier contends that there was no evidence he intended to cause great bodily harm and that Mr. Vannauker's injuries were merely superficial.
A deadly weapon is defined as any "weapon, device, instrument, article, or substance . . . which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm." RCW 9A.04.110(6). Washington courts have found blunt objects to be "deadly weapons." See, e.g., In re Pers. Restraint of Tran, 154 Wn.2d 323, 111 P.3d 1168 (2005) (use of a baseball bat led to charges of first degree assault with a deadly weapon); State v. Ross, 20 Wn. App. 448, 449 n. 1, 580 P.2d 1110 (1978) ("'[t]he words "deadly weapon," as used in this section include, but are not limited to, any instrument known as a . . . billy, sand club, . . . and any metal pipe or bar used or intended to be used as a club'" (quoting RCW 9.95.040(2)). The circumstances of a weapon's use include the intent and present ability of the use, the degree of force, the part of the body to which it was applied, and the physical injuries inflicted. State v. Shilling, 77 Wn. App. 166, 171, 889 P.2d 948 (1995).
Viewed in the light most favorable to the State, the evidence shows that Mr. Pourier shattered a closed bedroom door, barged into the room, and was the first to strike Mr. Vannauker. Mr. Vannauker testified that Mr. Pourier hit him in the head and back with a hard "billy" club. I RP at 77. He thought he was dying because of the ringing in his ears.
Ms. Gray saw Mr. Pourier hit Mr. Vannauker on the head and neck with the club. Dr. Gurney testified to Mr. Vannauker's life threatening injuries and testified that a club could cause death or serious injury. A jury could reasonably infer from these facts that Mr. Pourier assaulted Mr. Vannauker with a deadly weapon. These facts are also sufficient to establish that Mr. Pourier acted with intent to inflict great bodily harm and in a manner likely to do so.
As to count I, the evidence shows that a codefendant repeatedly stabbed Mr. Vannauker with a broken beer bottle. After the attack, Mr. Vannauker was bleeding profusely and suffered multiple stab wounds and a collapsed lung as a result of the attack. Dr. Gurney testified that the injuries were life threatening. These facts amply establish first degree assault.
Finally, Mr. Pourier contends that the evidence was insufficient to support the burglary conviction because the bedroom was not a separate building under the burglary statute. He also contends that the trial court erred in holding the trial in his absence. We have previously addressed these issues.
CONCLUSION
The convictions are affirmed. We vacate the firearm enhancement and remand for correction of the sentence.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Sweeney, J.
Korsmo, J.