Opinion
No. 35572-8-II.
June 24, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02303-3, Serjio Armijo, J., entered November 3, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton and Hunt, JJ.
Gregory Robinson appeals his convictions of first degree robbery, first degree burglary, unlawful imprisonment, second degree theft, and second degree possession of stolen property. He argues that (1) his counsel was ineffective for not objecting to the admission of telephone records as hearsay, (2) the trial court should have analyzed his California convictions for their comparability under Washington law before calculating his offender score at sentencing, (3) his attorney was ineffective in conceding his California convictions and their classifications, and (4) the prosecutor committed misconduct in failing to correct the trial court's misunderstanding of its duty to conduct a comparability analysis. In a statement of additional grounds for review (SAG), Robinson argues, among other things, that the trial court's instruction to the jury to continue deliberating impermissibly suggested that it needed to reach agreement and that deadlock was not an option. Finding no reversible error, we affirm.
RAP 10.10.
FACTS
Janice Copeland lived alone in an apartment in Sumner, Washington. At 4:00 am one morning, Copeland was sleeping when a knock at her front door woke her up. She looked out the window and saw Robinson outside. She recognized him as the maintenance man who had come to her apartment to fix the faucets in her bathtub a few weeks earlier. Robinson explained that he needed to come in because a leak in her apartment was flooding the apartment below.
When Copeland opened the door, Robinson grabbed her, got behind her, and held his hand over her mouth. He told Copeland that he would not rape her, but he wanted money for drugs. He took her into the bedroom, tied her up, and gagged her. He then took her personal and business debit cards, cell phone, and keys to her car, apartment, and post office box.
A. Trial
Despite Copeland's unequivocal identification of Robinson as her attacker at trial, identity was the major issue in the case. The jury in Robinson's first trial was unable to reach a verdict.
At the second trial, the State supported Copeland's testimony with additional circumstantial evidence. First, it offered video surveillance tapes from the automated teller machines (ATMs) where Copeland's debit cards were used to obtain $300 in cash after the robbery; one of the videos was detailed enough to show some facial features that the State argued resembled Robinson. Second, Verndeleao Banks, who lived at the Golden Lion Motel, testified that Robinson purchased cocaine from her with $300 cash on the day after the robbery. Robinson also gave her some credit cards in a woman's name to use when the cash ran out.
Third, the State sought to establish that Copeland's cell phone was used to call a man named Kirby Christopher after the robbery and that Robinson knew Christopher through mutual association with the Golden Lion Motel. It offered Copeland's cell phone bill as an exhibit during Copeland's testimony to establish that the phone was used to call Christopher; Copeland identified the calls on the bill that she had not made, then read the phone numbers and times of those calls into the record. The State offered no testimony from the phone company establishing that the bill was a business record for purposes of the hearsay exception, and defense counsel did not object.
Christopher was not a witness at trial, but Banks testified that she knew him and he spent time at the Golden Lion Motel selling drugs.
At the end of the second trial, the jury found Robinson guilty of unlawful imprisonment, first degree burglary, first degree robbery, second degree theft, second degree possession of stolen property, and harassment.
B. Sentencing
At sentencing, defense counsel agreed with the standard ranges calculated by the prosecutor for Robinson's sentences because they both agreed that his offender score was higher than the statutory maximum score of nine points. Robinson's relevant criminal history consisted of (1) a 1981 attempted burglary conviction from California, (2) a 1989 robbery conviction from California, (3) four 1989 rape convictions (rape, oral copulation by force, sodomy by force, and sexual penetration with a foreign object by force) that the State agreed to count as same criminal conduct, and (4) the five current felony convictions. Nowhere in the record did the State identify any comparable Washington crimes by which to classify the California crimes for offender score purposes. Both counsel agreed that Robinson's offender score for the violent offenses was twelve, consisting of two points for the 1981 attempted burglary, four points for the 1989 robbery and rape convictions, one point for having committed the current offenses while on community custody, and five points for the current offenses.
Robinson disagreed with this calculation, arguing that his offender score was only seven points. His attorney acknowledged Robinson's disagreement and argued his objections "on his behalf." Report of Proceedings (RP) at 836. She stated that Robinson was asking the court to conduct a "[c]omparability [t]est" with regard to his 1981 attempted burglary conviction in California, but that he still counted the 1989 convictions as four points. RP at 836. Neither Robinson nor his counsel compared the 1981 California burglary statute with any Washington crime because defense counsel could not find the California statute at issue. The State agreed, however, to exclude the 1981 conviction from Robinson's offender score, resulting in an offender score of ten (still above the statutory maximum).
During Robinson's allocution, he repeated that he was "asking the Court to do a Comparability Test on the out-of-state crimes," but then stated, "I am giving myself the high end for the points I committed in 89, which would be four points." RP at 845. Robinson also asked the court to treat all of his current convictions as the same criminal conduct.
The court ruled that it did not need to perform a comparability analysis, applied the maximum offender score for Robinson's robbery and burglary charges, and sentenced Robinson to the statutory maximum prison sentence on each charge, a total of 171 months.
ANALYSIS I. Admission of Cell Phone Records
Robinson faults his counsel for not objecting to the admission of the cell phone bill on the grounds that the State failed to lay a foundation for the business records exception to the hearsay rule.
To show that counsel ineffectively represented him, an appellant must show that (1) the attorney's performance was so deficient that it "fell below an objective standard of reasonableness" and (2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Brockob, 159 Wn.2d 311, 344-45, 150 P.3d 59 (2006). In analyzing the first prong, we grant considerable deference to counsel and presume that counsel's representation was reasonable. Brockob, 159 Wn.2d at 345. We will find prejudice only if the record shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have differed. Strickland, 466 U.S. at 694.
Where the defendant claims that counsel was ineffective for failing to object, the defendant must demonstrate not only meritorious grounds for the objection but, also, that the verdict would have differed had counsel objected. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). The State argues that Robinson has not demonstrated either prong because telephone bills do not constitute hearsay and there was overwhelming additional evidence of guilt presented at trial.
We need not decide the merits of an objection because Robinson cannot show prejudice. Copeland identified Robinson as her attacker and Banks testified that Robinson came to the Golden Lion Motel the day after the robbery with $300 cash and two credit cards in a woman's name to buy crack cocaine. Additionally, video surveillance tapes showed a man resembling Robinson withdrawing cash from Copeland's bank accounts with her stolen debit cards. Considering this evidence, Robinson cannot show a reasonable probability that the trial outcome would have differed had his counsel objected to the cell phone records.
II. Comparability Analysis
Robinson argues that the trial court should have conducted a comparability analysis of his 1989 California convictions in calculating his offender score.
Where a defendant's criminal history includes out-of-state convictions, the Sentencing Reform Act (SRA), chapter 9.94A RCW, requires the sentencing court to classify these convictions "according to the comparable offense definitions and sentences provided by Washington law." RCW 9.94A.525(3). To properly classify an out-of-state conviction according to Washington law, the sentencing court must compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999). The State bears the burden of proving a defendant's criminal history by a preponderance of the evidence. Ford, 137 Wn.2d at 479-80; see RCW 9.94A.500(1), .530(2).
The State argues that the trial court was entitled to rely on defense counsel's acquiescence to including Robinson's California offenses in his offender score even though Robinson disagreed. It cites State v. Romero, 95 Wn. App. 323, 326, 975 P.2d 564 (1999), and State v. Hightower, 36 Wn. App. 536, 541, 676 P.2d 1016 (1984), for the proposition that the right to self-representation in a criminal matter is an "all-or-nothing process," so the trial court could rely only on those arguments made by defense counsel. But the legal arguments at issue here were not made solely by Robinson on his own behalf; his attorney made them as well. The trial judge was bound to consider requests made by defense counsel, and he did in fact consider them when he declined to compare the California convictions to Washington crimes.
But, defendants who affirmatively agree with the allocation of points for their out-of-state convictions waive any challenge to the comparability of those convictions on appeal. State v. Ross, 152 Wn.2d 220, 230, 95 P.3d 1225 (2004); State v. Lucero, 140 Wn. App. 782, 788, 167 P.3d 1188 (2007). Here, Robinson stated on the record that he was "giving [him]self" four points for the out-of-state 1989 convictions. RP at 845. Robinson argues that Lucero and Ross are not controlling because he explicitly asked the court to conduct a comparability analysis. But the record shows that he requested a comparability analysis for only the 1981 attempted burglary conviction, which the State agreed not to count in the offender score. Given his unequivocal acknowledgment of the four points attributable to the 1989 convictions, Robinson waived any objection on appeal. See Ross, 152 Wn.2d at 226 (when defendant challenged the comparability of one of his out-of-state convictions at sentencing but conceded the other, he waived comparability of second conviction on appeal).
A. Ineffective Assistance of Counsel
Robinson argues that he received ineffective assistance of counsel when his attorney failed to object to the trial court's failure to conduct a comparability analysis on the record and conceded to the State's classification of his California convictions.
In order to show prejudice, Robinson must show that the legal grounds for a comparability challenge were meritorious, i.e., that his California crimes are not comparable to any Washington crime. See Kimmelman, 477 U.S. at 375. Robinson does not attempt to make this showing; his ineffective assistance claim therefore fails.
B. Prosecutorial Misconduct
Robinson also argues that the prosecutor committed misconduct by failing to correct the trial court's mistaken understanding of the comparability requirement for counting out-of-state convictions toward an offender score.
To prevail on his claim of prosecutorial misconduct, Robinson bears the burden of showing that the prosecutor's conduct was both improper and prejudicial. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359, 392 (2007). As we have discussed above, Robinson has made no showing of prejudice, so his claim fails.
III. Statement of Additional Grounds (SAG)
A. Instruction to Continue Deliberation
Robinson argues that the trial court's instruction to the jury to continue deliberating violated his right to an impartial jury free from coercive pressure by the court.
At the end of its first day of deliberations, the jury sent the following question to the judge: "We reached a verdict on two counts[.] We are split on 4 counts — W[h]ere do we go? [C]an we have it this way?" Clerk's Papers (CP) at 61. The trial court told the attorneys that it was thinking of bringing the jury in to discuss whether there was a reasonable probability of reaching a verdict. See 11 Washington Practice: Washington Pattern Jury Instructions Criminal (WPIC) 4.70, at 116 (2d ed. 1994). The trial court said, "If they answer 'no' then I will probably stop. If they say 'yes,' I'll send them back to deliberations." RP at 815.
But both the State and defense counsel agreed that the jury's question did not indicate that it was deadlocked and the trial court should simply instruct the jury to continue deliberating. The trial court said, "I guess I read too much into it. I'll do as you both indicate." RP at 817. The following exchange ensued:
[DEFENSE COUNSEL]: Your Honor, my client has a legitimate concern. He indicated the way it was written by the juror, "Where do we go; Can we have it this way," the response is, "Yes, you can have it this way," and we're not answering the question that's being asked. I guess that is legitimate.
[PROSECUTOR]: I don't think it's appropriate to tell the jurors that they can take certain action in regard to the verdict. I would just ask that they continue to deliberate on those remaining four counts. . . . The Court is not required to answer every question that they have.
THE COURT: I think the important thing is that they have not indicated that they are deadlocked, which I was reading that much into it. I agree with both counsels at this point that they are not deadlocked, they just want to know what to do. We're telling them continue with your deliberations on the remaining four counts. That's all I'm going to do.
RP at 817-18. The trial court sent back to the jury the notation, "Continue your deliberations on the remaining 4 counts." CP at 61.
The jury returned the next day with guilty verdicts on all counts. The question on appeal is whether by instructing the jury to continue deliberating in response to its question, the trial court improperly suggested that it was required to reach a verdict or deliberate for a certain length of time.
For one of the counts, the jury convicted Robinson of a lesser included offense, unlawful imprisonment, instead of the first degree kidnapping charged.
CrR 6.15(f)(2) provides that "[a]fter jury deliberations have begun, the court shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate." See also State v. Boogaard, 90 Wn.2d 733, 736, 585 P.2d 789 (1978). The trial court did not violate CrR 6.15(f)(2). Its failure to answer the jury's questions did not suggest the need to agree, the consequences of not agreeing, or the time the court would require it to deliberate.
But we also must consider whether the trial court's conduct coerced a verdict by the "broader principle that the jury must be free from judicial pressure in reaching its verdict." State v. Watkins, 99 Wn.2d 166, 176, 660 P.2d 1117 (1983) (citing Boogaard, 90 Wn.2d at 736-37). To show judicial coercion of the verdict, Robinson must establish a "reasonably substantial possibility that the verdict was improperly influenced by the trial court's intervention." Watkins, 99 Wn.2d at 178. He has failed to do so.
First, Robinson waived to some extent his argument that the jury was deadlocked and reached a verdict only because the court instructed it to continue deliberating. The trial court offered to call the jury into the courtroom and inquire whether there was a reasonable probability of reaching a verdict. It also explained that if the jurors said "no," it would probably stop the deliberations. And, contrary to Robinson's present argument, his counsel agreed that the jury's question did not suggest a deadlock. Moreover, the jury did not say it was deadlocked, only that it was split on four counts. If defense counsel had asked for the jurors to be questioned, the court could have determined whether they were truly deadlocked. If they were not, the court would have been obligated to send them back to deliberations without instructing on the need to agree, the consequences of not agreeing, or the time it would have to deliberate. CrR 6.15(f)(2). If they were hopelessly deadlocked, the court could have declared a mistrial. See State v. Fish, 99 Wn. App. 86, 90, 992 P.2d 505 (1999) (citing State v. Jones, 97 Wn.2d 159, 163, 641 P.2d 708 (1982)). In either event, the issue Robinson raises would not exist.
Moreover, without a discussion as to how the jurors stood, the court could not answer their questions: "Where do we go?" and "Can we have it this way?" But Robinson agreed that the jurors did not appear to be deadlocked and rejected the court's suggestion to question the jurors. Under these circumstances, Robinson waived the claim he now makes that the jury would not have reached a verdict had the trial court not refused to answer its questions. See Wilburn v. Cranor, 40 Wn.2d 38, 39, 240 P.2d 563 (1952) ("Where parties, even in a criminal case, knowingly and deliberately adopt a course of procedure which at the time appears to be to their best interest, they cannot be permitted at a later time, after a decision has been rendered adverse to them, obtain a retrial according to procedure which they have voluntarily discarded and waived") (quotations omitted).
Robinson's coercion argument fails on its merits. In Boogaard, 90 Wn.2d at 735, the jury began deliberations in mid-afternoon. At 9:30 pm, a judge who had not presided over the trial sent the bailiff to inquire how the jury stood. The bailiff reported the vote as 10 to 2. The trial court then questioned the jurors, asking the presiding juror to explain the voting history. The court asked each juror whether he or she thought the jury could reach a verdict within a half hour. All except one thought they could. The court then sent the jurors back to deliberate for another half hour, at the end of which all the jurors voted to convict. Boogaard, 90 Wn.2d at 735. The Supreme Court held this procedure coercive, emphasizing that the court's setting of half-an-hour inevitably caused the minority jurors to "feel the pressure of judicial influence." Boogaard, 90 Wn.2d at 739.
In Watkins, after deliberating five hours, the jury sent the court a message that: "We have reached a deadlock. Is there any chance of adjourning until Monday? Some people have urgent business over the weekend. What is the normal procedure in this instance?" Watkins, 99 Wn.2d at 170. The trial court instructed the jury to keep deliberating. More than an hour later, the jury wrote: "We must be deadlocked. We're not even talking." Watkins, 99 Wn.2d at 170. The trial court then gave the jury new verdict forms that allowed it to convict of second degree assault without first finding the defendant not guilty of first degree assault. Watkins, 99 Wn.2d at 171. The Supreme Court held that the court's procedure did not violate CrR 6.15(f)(2) and that the defendant had not shown "a reasonably substantial possibility that the verdict was improperly influenced by the trial court's intervention." Watkins, 99 Wn.2d at 178. The court noted that the supplemental instructions were "neutral" and contained nothing that would cause jurors to "abandon conscientiously held opinions." Watkins, 99 Wn.2d at 178.
Here, unlike Boogaard, the trial court placed no time limits on the jury's deliberations. And, as in Watkins, Robinson has not persuaded us that the trial court's failure to answer the jury's question caused the non-convicting jurors to abandon their honestly held beliefs. An equally reasonable conclusion is that the jury understood that it was to simply continue deliberating and attempt to reach a verdict. Thus, at best, Robinson has shown no more than a "mere tendency to influence the jury"; he has not demonstrated a reasonably substantial possibility that the trial court's failure to answer the jury's questions influenced the verdict. Watkins, 99 Wn.2d at 177-78.
B. Same Criminal Conduct for Current Offenses
Robinson argues that the trial court erred in denying his motion to treat all five of the current offenses as the same criminal conduct for purposes of his offender score.
"Same criminal conduct" for offender score purposes 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). We review the trial court's determination of whether offenses encompass the same criminal conduct for abuse of discretion or misapplication of the law. State v. French, 157 Wn.2d 593, 613, 141 P.3d 54 (2006).
Three of Robinson's five convictions may be separated easily. First, the burglary may be treated separately by statute. RCW 9A.52.050; see State v. Lessley, 118 Wn.2d 773, 781, 827 P.2d 996 (1992). Second, while the victim for four of the crimes was the same, i.e., Copeland, the victim for the theft charge was Bank of America. Similarly, the possession of stolen property occurred at a different time from the remaining three crimes, i.e., in the hours after the robbery when Robinson was withdrawing cash at ATMs. Therefore, the burglary, theft, and possession of stolen property convictions must be counted separately toward Robinson's offender score.
RCW 9A.52.050 provides: "Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately."
The two remaining charges, unlawful imprisonment and robbery, were against the same victim, Copeland, and occurred at the same time, so the dispositive question is whether they required the same criminal intent. See RCW 9.94A.589(1)(a). The test for whether Robinson had the same criminal intent for all the crimes is the extent to which his intent, objectively viewed, changed from one crime to the next. State v. Williams, 135 Wn.2d 365, 368, 957 P.2d 216 (1998) (quoting State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994)). In this inquiry, we look to multiple factors: how intimately related the crimes are, whether the criminal objective changed substantially between the crimes, and whether one crime furthered the other. State v. Burns, 114 Wn.2d 314, 318, 788 P.2d 531 (1990).
Here, the trial court did not abuse its discretion in finding that the unlawful imprisonment and robbery were not the same criminal conduct. This case is analogous to State v. Vermillion, 66 Wn. App. 332, 337, 832 P.2d 95 (1992), in which the defendant molested a woman by force, then took her to a utility room where he tied her up and told her to remain for 15 minutes while he escaped. He was convicted of indecent liberties and unlawful imprisonment, and the court held that the crimes did not constitute the same criminal conduct because the unlawful imprisonment did not further the indecent liberties crime. Vermillion, 66 Wn. App. at 344. Similarly, in this case Robinson took Copeland's property by force, then tied her up in a room to facilitate his escape. The trial court did not abuse its discretion in finding that the robbery and unlawful imprisonment convictions were not the same criminal conduct.
C. Robinson's In-Custody Status
Robinson argues that the prosecutor committed misconduct by eliciting testimony regarding his in-custody status at trial. Specifically, corrections officer Steven Berry testified that Robinson had been in custody since his booking date, May 15, 2005; the date of that testimony was September 18, 2006.
The State asserted that this testimony was relevant to explain why Robinson did not look the same as his photographs, making Copeland's identification more difficult. Specifically, because Robinson had been in jail for a significant amount of time, "away from the street elements, if you will, . . . that could easily account for the change in his body type." RP at 413.
Robinson waived the issue because the prosecutor asked permission from the trial court before offering the evidence, and defense counsel did not oppose this request or object when the testimony was given. Cf. State v. Elmore, 139 Wn.2d 250, 273, 985 P.2d 289 (1999) (defense counsel not relieved of obligation to object or request a curative instruction regarding shackling of defendant in front of jury). Robinson does not allege ineffective assistance of counsel, so we need not consider this argument.
D. Speedy Trial
Robinson argues that his Sixth Amendment right to a speedy trial was violated by repeated continuances that eventually resulted in a delay of about 15 months. He contends that because it was more than a year, we should conduct a full analysis under Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
We consider four factors in evaluating a constitutional speedy trial claim: the length 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 Wn.2d 868, 920, 952 P.2d 116 (1998) (quoting Barker, 407 U.S. at 530). The length of delay is principally a triggering factor, and delays of over a year have been considered sufficient to invoke the full Barker analysis. United States v. Beamon, 992 F.2d 1009, 1013 (9th Cir. 1993).
In considering the reasons for the delay, we generally look for the State's culpability. 12 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice Procedure § 1204, at 253 (3d ed. 2004). Purposeful delay by the prosecution to gain an advantage weighs heavily against the government, while prosecutorial negligence or institutional delays such as crowded dockets are weighed less heavily. Barker, 407 U.S. at 531; 12 Ferguson, Washington Practice: Criminal Practice Procedure § 1204, at 253.
Here, the record contains nine orders continuing the trial date, but notations on them indicate that there were at least twelve orders overall. As in United States v. DiFrancesco,
the government bears the responsibility for some of the delay, including that caused by 'institutional factors' such as overcrowding of the district court's docket, [but] there is no suggestion in the record of any 'deliberate attempt (by the government) to delay the trial in order to hamper the defense,' and it is apparent that [the defendant] was responsible for a substantial portion of the delay.
United States v. DiFrancesco, 604 F.2d 769, 777 (2d Cir. 1979) (quoting Barker, 407 U.S. at 531) (citations omitted), judgment reversed on other grounds by 449 U.S. 117 (1980). Not only were four of the continuances the result of defense motions, but Robinson's own objections to them were few and sporadic; the record reflects that he objected to only three of the twelve continuances.
Robinson does not entirely fail to allege prejudice; he asserts that he was unable to obtain the testimony of an alibi witness, Shannon Garcia, because of the time delay, and that the memories of several other key witnesses had faded at trial. But the record does not reflect either what Garcia or the other witness would have testified had trial occurred sooner. Robinson's claim fails both because he cannot substantiate his assertion of prejudice and because the State was not primarily at fault for the delay.
E. In-Court Witness Identification
Robinson argues that the trial court erred in denying his motion to suppress any in-court identification by Copeland. He argued at trial that Copeland's identification was tainted by improper police procedures: when Copeland was initially unable to identify her attacker from a photomontage, the police came back again several weeks later to "clarify" her answer. Robinson also argues that it was suggestive for the police to (1) use an outdated photograph of him and (2) select the other men in the montage by their similarities to Robinson, even as to characteristics Copeland had not specified.
An out-of-court photographic identification procedure violates due process if it is so impermissibly suggestive as to give rise to a substantial likelihood or irreparable misidentification. State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002). A suggestive identification procedure is one that directs undue attention to a particular photo. State v. Kinard, 109 Wn. App. 428, 433, 36 P.3d 573 (2001). Here, none of the circumstances that Robinson cites draws undue attention to his photograph; indeed, using an outdated photograph and surrounding it with men with similar features would make it more difficult for Copeland to single him out, not less. More persuasive, however, is that Copeland did not identify Robinson in the photomontage process. We find no improper suggestion in the police identification process. Thus, the trial court did not err in denying Robinson's motion to suppress.
F. Contact With Jurors During Deliberations
Robinson argues that defense counsel was ineffective for failing to object to sending a video exhibit into the jury room during its deliberations. Robinson's claim fails because he is unable to show how allowing the jury to view the video prejudiced him, i.e., showing a reasonable probability the verdict would have differed otherwise. See Strickland, 466 U.S. at 694. The video consisted of surveillance from the ATMs where Robinson used Copeland's debit cards to obtain cash. This evidence is distinguishable from the videotaped testimony at issue in United States v. Binder, 769 F.2d 595 (9th Cir. 1985); allowing testimony to be reread or replayed is disfavored when it unduly emphasizes that testimony. See Binder, 769 F.2d at 600-01. Here, the video is more analogous to photographs or other documentary exhibits, which juries are entitled to review at their leisure. Cf. CR 51(h). Defense counsel's acquiescence to allowing the jury to view the video in the jury room was not deficient performance.
G. Prosecutorial Misconduct
Robinson argues next that the prosecutor committed misconduct by misstating the standard of proof through various analogies that he contends do not illustrate the degree of certainty required. Defense counsel did not object to any of Robinson's asserted instances of misconduct.
A defendant who fails to object to possible misconduct waives the issue on appeal unless the misconduct was so flagrant or ill-intentioned that it evinces an enduring and resulting prejudice that could not be neutralized by an admonition to the jury. State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646 (2006) (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)). Robinson has not persuaded us that the challenged comments meet this extremely high standard.
H. Vouching for Banks's Credibility
Robinson argues that the prosecutor impermissibly vouched for Banks's credibility when he argued that: the jury should believe her because she came forward voluntarily with information about the case, she had no reason to lie because the police agreed not to charge her because of anything she said, her testimony made sense, and she did not "sugarcoat "anything about her own involvement. RP at 782. To the extent that defense counsel did not object to these comments, Robinson asserts that she was ineffective.
A prosecutor may not vouch for the credibility of a witness. State v. Horton, 116 Wn. App. 909, 921, 68 P.3d 1145 (2003) (quoting State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995)). But a prosecutor does not vouch for a witness's credibility by arguing inferences from the evidence, as opposed to expressing a personal opinion as to the witness's credibility. Brett, 126 Wn.2d at 175. A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and may freely comment on the credibility of the witnesses based on the evidence. Stenson, 132 Wn.2d at 727.
Here, the prosecutor argued that Banks's testimony was credible based on specific details she testified to at trial. Because the prosecutor's argument was based on the evidence presented at trial, it was not misconduct.
I. Limiting Impeachment of Banks Based on Plea Agreement and Criminal History
Robinson argues that the trial court improperly limited his ability to impeach Banks for bias as a result of her plea deal with the State. Banks had been charged initially in another case with robbery, but she pleaded guilty to attempted first degree theft. After that plea but before her sentencing, the State approached her about testifying against Robinson. In exchange for that testimony, the State agreed to recommend a low-end sentence instead of the high-end sentence provided for in her initial plea agreement. At Robinson's trial, the trial court excluded any reference to the original robbery charges against Banks because the reduction and guilty plea took place before the arrangement for her testimony.
This exclusion was proper because Banks's original plea agreement was not relevant to show bias against Robinson, and her actual conduct fell within the scope of ER 404(b)'s exclusion of prior bad acts evidence. Robinson also challenges the prosecutor's comment in closing argument that Banks's conviction was only a property crime. This comment may have taken unfair advantage of the trial court's earlier exclusion of the true nature of Banks's crime, but it was harmless because there is no substantial likelihood that it affected the jury's verdict. See State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003).
Robinson also argues that the trial court limited his ability to impeach Banks on her full criminal history. This argument is not preserved because the record does not contain a full list of Banks's criminal history, and counsel for both sides agreed to the five prior crimes that could be used for impeachment under ER 609.
J. Presence of Witness in Courtroom
Robinson argues that the trial court erred when it overruled defense counsel's objection to allowing Banks's attorney, Leslie Tolzin, who was also a witness for the State, to be present during Banks's testimony. Even though the trial court had issued an order prohibiting witnesses from being in the courtroom when other witnesses testified, it allowed Tolzin to be present for Banks's testimony because he was her attorney and Robinson had not presented any reason why it would be a conflict of interest to do so. Robinson does not explain why this ruling was improper or how it prejudiced him; his claim fails.
K. Prior Drug Use
Robinson argues that the trial court violated ER 404(b) by allowing testimony about his prior drug use. But the State moved to admit it to show motive and identity, and defense counsel did not oppose the motion. The trial court's ruling was explicitly "[b]y agreement of both parties," CP at 45, and Robinson does not assert that defense counsel was ineffective in her acquiescence; we do not consider the argument.
ER 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
L. Kirby Christopher
Robinson argues that the trial court erred in excluding certain testimony by Detective Jason Temple regarding Christopher. Temple would have testified that (1) he spoke on the phone with Christopher, who said that he did not know Robinson and (2) he obtained an address for Christopher and went there, but a neighbor told him that Christopher no longer lived there. The record does not reflect the first of these two statements, and the trial court excluded the second as hearsay.
We review a trial court's evidentiary rulings for abuse of discretion. In re Pers. Restraint of Davis, 152 Wn.2d 647, 691, 101 P.3d 1 (2004). Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. ER 801(c). Hearsay is also inadmissible unless it comes within an exception established by statute, rule, or common law. ER 802; State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P.3d 990 (2007). The neighbor's statement that Christopher no longer lived at the house was hearsay; therefore, the trial court did not abuse its discretion in excluding it.
M. Possession of Stolen Propertym
Robinson argues that there was insufficient evidence to find him guilty of possession of stolen property and that the "to convict" instruction on that charge was erroneous. We cannot review Robinson's challenge to the instruction because the jury instructions are not part of the appeal record.
For a defendant to prevail on an insufficient evidence challenge, he must show that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Allen, 159 Wn.2d 1, 7, 147 P.3d 581 (2006). We view the evidence in the light most favorable to the State, drawing all reasonable inferences from the evidence in the State's favor. State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006).
The State's theory for this charge was that Robinson possessed stolen property when he used Copeland's debit cards at three ATMs to obtain cash, knowing that the cards were not his. There was no dispute at trial that the debit cards were access devices; the only dispute was whether it was Robinson who used them. But the State provided evidence that would allow a rational fact finder to resolve that dispute: surveillance video from the three institutions where the cards were accessed showed a person resembling Robinson coming and going from all three locations. This evidence is sufficient to support Robinson's conviction.
N. Aggregation of Thefts
Robinson argues that the jury instructions for aggregating the thefts of cash from the ATMs were erroneous. The instructions are not in the record, so we cannot review them.
O. Convictions of Both Theft and Possession of Stolen Property
Robinson argues that it was improper for him to be convicted of both theft and possession of stolen property under State v. Hancock, 44 Wn. App. 297, 301, 721 P.2d 1006 (1986), which held that "one cannot be both the principal thief and the receiver of stolen goods." But here, the "stolen goods" were not the same in the two charges. The possession charge was based on Robinson's possession of Copeland's debit cards after the robbery, and the theft charge was based on his unlawful withdrawal of cash from the ATMs. The Hancock doctrine was not violated. See also State v. Melick, 131 Wn. App. 835, 840-41, 129 P.3d 816 (2006) (doctrine applies where theft and possession arise out of the same act).
Robinson argues that the jury was instructed that it could convict on the theft charge if he stole an access device. Not having the jury instructions, we cannot review this.
P. Copeland's Contact with Black People
Robinson argues that the trial court erred when it precluded the defense from questioning Copeland about her prior contact with black people; he asserts that this information would have helped the jury assess her identification of him. But the court did not preclude the defense from bringing this issue up; rather, both counsel recognized before closing arguments that there had simply been no evidence offered on this issue. There was no error.
Q. Randy Hamilton's Photomontage Identification
Robinson argues that the trial court erred when it allowed inadmissible hearsay. Specifically, Detective Temple testified that Hamilton identified Robinson in a photomontage. This issue is waived because the defense did not object below. RAP 2.5(a).
R. Failing to Call Witnesses — Ineffective Assistance of Counsel
Robinson argues that his attorney provided ineffective assistance by failing to call certain witnesses that were on the defense witness list and that he had specifically requested. He asserts that his attorney should have called three witnesses: a handwriting expert, the manager of the Golden Lion Motel, and an alibi witness, Shannon Garcia.
The record provides no basis for us to review this argument. With the exception of Garcia, Robinson does not explain what these witnesses would have disclosed to or how their testimony would have made a difference in the trial result. Accordingly, he is unable to show the required prejudice for an ineffective assistance claim. See Strickland, 466 U.S. at 694. And with regard to Garcia, defense counsel told the court that she was "missing in action" and "[i]t appears she's trying to avoid this, so we've lost her." RP at 655. Robinson has not shown that his attorney was deficient in attempting to find Garcia.
S. Failing to Administer Jury Oath
Robinson argues that the trial court failed to swear in the jury by administering the oath required by RCW 4.44.260 and failed to give it the instructions contained in 11 Washington Practice: WPIC 1.01, at 2-5. The record belies this argument. It contains notations by the transcriber that the jury was sworn in and the instructions were given.
T. Comment on Silence
Robinson argues that the prosecutor elicited testimony from Detective Temple to the effect that he had gone to the jail to interview Robinson, but Robinson told him he did not want to speak to him without his attorney. We can find no testimony to support this in the record; thus, Robinson fails to support the issue.
U. Perjured Testimony
Robinson argues that the prosecutor deliberately deceived the court and jury by knowingly presenting perjured testimony from Banks and misrepresenting Christopher's place of residence.
With regard to Banks, Robinson argues that Banks changed her testimony several times between the first and second trial and the prosecutor could therefore not say that he was not aware of her perjury. But Robinson did not raise this argument below; he therefore waives it on appeal. RAP 2.5(a). Furthermore, defense counsel was as aware of any inconsistencies in Banks's testimony and had the opportunity to cross-examine her about those inconsistencies.
Robinson's second argument relates to a map that the State offered to show the location of Christopher's residence, even though it knew that Christopher no longer lived there. But Robinson overlooks that Christopher's residence at that address was relevant regardless of when he lived there. The State sought to prove only that Robinson knew Christopher and could have called him on the day of the robbery. The State used Banks's testimony to establish that both men spent time at the Golden Lion Motel, and it used the address to establish that Christopher at one time lived near that motel. The prosecutor did not commit misconduct.
V. Lay Opinion Regarding Identity from Video Evidence
Robinson argues that the State improperly elicited opinion testimony from Officer Baker outside the scope of his expertise. Baker testified as an expert in video forensic analysis but, upon later questioning by both the State and defense, gave a detailed description of the person in the surveillance videos. He did not, as Robinson asserts, opine as to any similarities between Robinson and the person in the video, and he did not identify the individual as the defendant. Furthermore, the State itself emphasized that it was the jury's duty to decide whether the individual in the video was the defendant. In this context, there was neither error nor prejudice.
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.
HOUGHTON, P.J. and HUNT, J., concur.