Opinion
No. 30782-1-II
Filed: April 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-04593-8. Judgment or order under review. Date filed: 07/29/2003. Judge signing: Hon. Vicki Hogan.
Counsel for Appellant(s), Linda J. King, Attorney at Law, 9 St Helens Ave, Tacoma, WA 98402-2600.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
A jury convicted Thurman Sherrill of first degree assault with a firearm enhancement and first degree unlawful possession of a firearm. On appeal, he argues numerous errors, both through counsel and in a Statement of Additional Grounds (SAG). We affirm.
RAP 10.10.
FACTS
On September 10, 2002, Warren Blockman lived in the Sunrise Apartments in Tacoma. Around midnight, as Blockman spoke with Robert Smith in the apartment parking lot, they became suspicious of a white Jeep Cherokee that twice entered and left the parking lot. Blockman retrieved a gun out of his car, a Ford Navigator.
The Jeep returned to the parking lot, and Christopher Parker got out of it. As Blockman and Parker were long-time friends, Blockman initially relaxed. The three men started talking. Parker told Blockman and Smith that a Mexican man had run through the parking lot with his money.
Blockman then heard movement in the bushes and watched Sherrill emerge holding a gun. Pointing his gun at Blockman, Sherrill asked him, "Why you hate me over a female?" V Report of Proceedings (RP) at 27. Parker also pointed his gun at Blockman. When Blockman realized that he had two guns on him, he dropped his weapon. Smith ran away.
Sherrill told Blockman to get into the Jeep, but Blockman refused and backed away. Sherrill shot Blockman once as Blockman walked backwards and then another four or five times as he ran up Portland Avenue.
Police arrived at approximately 1:35 a.m. Officer Jennifer Kramer arrived first at the scene. In her trial testimony, she described Blockman's injuries:
Kramer testified that Blockman did not come forth with information. She described his demeanor as 'uncooperative,' noting that he refused to identify his assailant and provided the false name of 'Jabbar Thomas.' III RP at 70, 71.
He was bare chested and he had — his pants were wrapped down around his ankles, and they were soaked in blood and he had a bloody towel wrapped around his waist.
. . . .
He had what appeared to be a through and through bullet wound. So it would have entered and exited, and you could see the enter [sic] and exit wound[s] to the upper right bycep [sic] area. He had two like grazing wounds, they were like furrows, fairly parallel, and they were on the right side of his rib cage, and then there was an entrance wound to his lower left hip or buttock area, but no exit wound.
III RP at 68-69. Blockman later identified Sherrill as his assailant.
On October 4, 2002, the State charged Sherrill with first degree assault with a firearm enhancement (count I) and first degree unlawful possession of a firearm (count II).
The matter proceeded to trial, where the State introduced a surveillance video recorded by the apartment manager. It showed portions of the parking lot.
Additionally, the State called Alicia Brookshire. Brookshire testified that she was married to Leonard Masten and that Masten owned a white Jeep Cherokee. She further stated that Sherrill and Masten were 'associates.' V RP at 75. When the State asked if she was 'aware whether or not there had been exchanges of vehicles between your husband and the defendant,' she responded, 'I didn't see that, so I can't really say that I — that I knew or I didn't know.' V RP at 70.
The State questioned Brookshire about her interview with Detective John Ringer. She responded that she could not remember. Later, the State called Ringer to the stand. Over defense counsel's objection, the trial court allowed the detective to testify about a vehicle registration check on Masten. His investigation revealed that Masten owned a white Jeep Cherokee. Ringer spoke with Masten several times.
The trial court gave a limiting instruction on Ringer's testimony, stating that the jury 'may consider this testimony for the purpose of showing what the officer did during the course of the investigation.' VI RP at 21.
Ringer also testified that he served Masten with a subpoena to appear at trial but he failed to appear.
Again over defense counsel's objection, the detective testified about his interview with Brookshire. She informed him that on September 7, 2002, she and her husband had a fight. Masten left the house in the Jeep Cherokee but returned in Sherrill's red Mustang. Brookshire believed that Masten exchanged the Mustang for the Jeep on either September 11 or September 12, 2002, 'sometime in the morning hours.' VI RP at 34-35. Finally, Brookshire said that 'it was real common for Leonard Masten and Thurman Sherrill to trade vehicles during the previous year.' VI RP at 35.
The court also gave a limiting instruction, stating that Ringer could testify about this interview as '[i]ndication of what the officer did in the course of investigation and for the purposes of impeachment.' VI RP at 33.
On June 27, 2003, the jury convicted Sherrill on both counts. He appeals.
ANALYSIS Brookshire Testimony
Sherrill first contends that the trial court erred in allowing Ringer to testify about his interview with Brookshire 'under the improper guise of impeachment.' Appellant's Br. at 22.
The admission and exclusion of evidence are within the sound discretion of the trial court and, thus, we review for abuse of discretion. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004). A court abuses its discretion when no reasonable person would take the position the trial court adopted. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992), review denied, 120 Wn.2d 1022, cert. denied, 508 U.S. 953 (1993).
To preserve an error in admitting or excluding evidence, a party must assert a proper objection at trial. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). When asserting a nonconstitutional error, a party may appeal on only those grounds asserted below. State v. Thetford, 109 Wn.2d 392, 397, 745 P.2d 496 (1987); RAP 2.5(a).
The relevant portion of RAP 2.5(a) provides: 'The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: . . . (3) manifest error affecting a constitutional right.'
In objecting, defense counsel asserted hearsay, not improper impeachment, grounds:
Q. [The State] Did Ms. Brookshire provide you any information about the whereabouts on Saturday the 7th of September?
A. [Detective Ringer] She did.
Q. What did she say to you?
[Defense Counsel]: Objection. Hearsay.
THE COURT: [State's counsel]?
[The State]: It's not being offered for the truth of the matter, Your Honor. It's impeachment.
[Defense Counsel]: Your Honor, I would guess if that is the case that the jury be instructed, you know, as to limitations for the use of this kind of testimony, that it's not substantive. That it's simply impeachment.
VI RP at 33 (emphasis added). Defense counsel did not dispute using Ringer's testimony for impeachment purposes. As this evidentiary issue is not one of constitutional magnitude, Sherrill has waived any error. Prosecutorial Misconduct
Sherrill further contends that cumulative instances of prosecutorial misconduct denied him a fair trial where the prosecutor (1) improperly vouched for the credibility of witnesses, (2) misstated the law, and (3) referred to evidence outside the record.
To prevail on grounds of prosecutorial misconduct, a defendant must show improper conduct resulting in prejudice. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). We examine purportedly improper statements 'in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.' State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). Prejudice exists if there is a substantial likelihood that the prosecutorial misconduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). A defendant establishes prejudicial error when it is clear and unmistakable that the prosecutor expressed a personal opinion. State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985).
Generally, a defendant's failure to object to improper statements constitutes waiver unless the improper statements are '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.' Brown, 132 Wn.2d at 561; see also State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). We do not reverse when any prejudice might have been cured through an instruction that the defendant failed to lodge. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
Vouching Testimony
Sherrill first asserts that the prosecutor improperly vouched for the credibility of the State's witnesses during rebuttal argument. We disagree.
In closing, prosecutors may argue facts in evidence and draw reasonable inferences there from, but may not state a personal belief about the defendant's guilt or innocence or witness credibility. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). Nevertheless, 'prosecutorial remarks, even if they are improper, are not grounds for reversal if they were invited or provoked by defense counsel, are a pertinent reply to his or her arguments, and are not so prejudicial that a curative instruction would be ineffective.' State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004).
During closing argument, defense counsel attacked Blockman's and Parker's credibility. To rebut, the State argued:
[Defense counsel is] insinuating that [the victim is] out there dealing drugs and doing all these things, so therefore, I guess we shouldn't give him all the rights that we give everybody else.
Is he any less of a victim because of who he is, because of his life? Absolutely not. The State of Washington doesn't come in, call MGM and say, 'Can you give me' — 'Let's see. I need a victim . . . with these characteristics.'
Witnesses come to the stand as people. They come for who they are. They don't get coached. They don't make up things. You have them come up here, you give them an oath and you say, 'You know what? Tell the truth.' That's what the witnesses in this case did.
VI RP at 193 (emphasis added).
In light of defense counsel's closing argument, the State merely rebutted defense counsel's suggestion that Blockman and Parker did not provide credible testimony. Sherrill's argument fails.
Misstatement of the Law
Sherrill next asserts that the prosecutor made several misstatements of the law in closing argument.
The law grants counsel wide latitude to argue facts in evidence and draw reasonable inferences during closing argument. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). A prosecutor may not, however, mislead the jury through misstatement of the law or the evidence. State v. Reeder, 46 Wn.2d 888, 892, 285 P.2d 884 (1955).
Sherrill asserts three instances of prosecutorial misconduct during closing argument: the prosecutor (1) invited the jury to disregard instructions, (2) disregarded the trial court's limiting instruction, and (3) made an improper objection during defense counsel's closing argument. These arguments fail.
In his SAG, Sherrill further asserts that the State incorrectly defined 'intent' and 'assault' during closing argument. SAG at 24-25. Because Sherrill failed to object, he waived any error. Thetford, 109 Wn.2d at 397.
Sherrill argues that the prosecutor invited the jury to disregard instruction 9, which required jurors to 'decide each count separately.' Clerk's Papers (CP) at 128. Specifically, Sherrill contends that the following statement during closing argument was improper:
So the only question on the firearm charge is was he in possession? You'll see constructive possession in that instruction. This isn't a constructive possession case. This is an actual possession case. If you begin your deliberations and you start on Count 1, assault in the first degree, I submit to you if you find the defendant guilty of assault in the first degree with a firearm, you have answered Special Verdict Form A.
Instruction 16, the 'to convict' instruction for first degree assault, provided in part:
To convict the defendant of the crime of Assault in the First Degree as charged in Count One, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about [the] 10th day of September, 2002, THURMAN FINLEY SHERRILL intentionally assaulted Warren Blockman;
(2) That the assault was committed with a firearm;
(3) That THURMAN FINLEY SHERRILL acted with intent to inflict great bodily harm; and
(4) That the acts occurred in the State of Washington. CP at 135.
Special Verdict Form A read:
We, the jury, return a special verdict by answering as follows:
Was the defendant THURMAN FINLEY SHERRILL armed with a firearm at the time of the commission of the crime of Assault in the first degree.
ANSWER: Yes (Yes or No) /s/ Christopher Ball PRESIDING JUROR
CP at 111.
Was the defendant armed with a firearm? Yes, he was. They go lock, stock and barrel together, folks. You can't really separate them. So I'd submit that there is ample and sufficient evidence on that basis to establish that he is also guilty of that crime.
VI RP at 176 (emphasis added). Sherrill points to evidence of jury confusion stemming from the prosecutor's statement. During deliberations, the jury sent the following note:
If we find the Defendant guilty on the charge of Assault in the first Degree, do we need to fill out Special Verdict form A?
If so, do we then still need to fill out Verdict Form Count 2? (i.e. if we find Guilty on both counts, we are filling out 3 forms, correct?)
In response, the trial court instructed the jury to 're-read your jury instructions.' CP at 117.
CP at 116.
Here, the prosecutor committed no misconduct. According to instruction 16, the jury could not convict Sherrill of first degree assault unless it determined that he assaulted Blockman with a firearm. As the State counters, '[a]lthough the jury had to reach an independent determination, the point of the argument was that there was no rational basis for finding liability on the crime but not the enhancement.' Respondent's Br. at 14. Rather than encouraging the jury to not 'decide each count separately,' the prosecutor noted the inherent connection between the two charges. CP at 128. Sherrill's argument fails.
Sherrill next asserts that the prosecutor disregarded the trial court's limiting instruction.
During direct examination, the State asked Ringer whether, '[i]n doing your background had you verified through records any particular vehicles registered to Leonard Masten?' VI RP at 21. After defense counsel's objection, the court said, 'I'll advise the jurors that you may consider this testimony for the purpose of showing what the officer did during the course of the investigation.' VI RP at 21.
In closing, the State made the following comments about the Jeep and Mustang:
Leonard Masten reaches out to law enforcement. Says, "Well, you know, I need to talk to you all."
Shows up, lo and behold here's his Jeep. A Jeep that has been traded with the defendant repeatedly over the years. Traded for the red Mustang that is also in the name of the defendant. Those are the two vehicles that when the defendant places a call to Masten to come pick him up, they exchange, he takes Masten back to his place where the Jeep is. Comes back in the Mustang.
VI RP at 171.
Sherrill argues that the prosecutor's statement 'inferred that the jury could consider Ringer's testimony for its truth regarding ownership of these vehicles, rather than for the scope of his investigation.' Appellant's Br. at 39. But Sherrill's counsel failed to object on this basis during closing argument. Assuming error, the statement was not 'so flagrant and ill-intentioned that it cause[d] an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.' Brown, 132 Wn.2d at 561. As such, Sherrill's failure to object or request a curative instruction constitutes waiver.
Sherrill further asserts that the prosecutor misstated the law when he objected during defense counsel's closing argument. But Sherrill's argument is misplaced. If any error existed, it occurred when the trial court sustained the prosecution's objection. Because Sherrill failed to assign error to the trial court's action, we decline to address the issue further.
Reference to Evidence Outside the Record
Sherrill further asserts that the State committed prosecutorial misconduct by referring to evidence outside the record. He asserts that the State improperly referred to 'other filed documents.' Appellant's Br. at 42 (quoting V RP at 75-76).
Reference to evidence outside the record is improper. State v. Jones, 71 Wn. App. 798, 807, 863 P.2d 85 (1993), review denied, 124 Wn.2d 1018 (1994). But he did not object or request a curative instruction. V RP at 76. And the reference to other filed documents is not so inflammatory that no curative instruction could have neutralized any prejudice. Thus, his argument fails. Russell, 125 Wn.2d at 85.
Cumulative Error Based on Prosecutorial Misconduct
Finally, Sherrill argues that cumulative instances of prosecutorial misconduct violated his right to a fair trial. We disagree.
The cumulative error doctrine applies when several errors occurred at the trial court, but none alone warrants reversal. State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004). Rather, the combined effect of these errors denied the defendant a fair trial. Hodges, 118 Wn. App. at 673-74. 'Absent prejudicial error, there can be no cumulative error that deprived the defendant of a fair trial.' State v. Saunders, 120 Wn. App. 800, 826, 86 P.3d 232 (2004).
Because we discern no prosecutorial misconduct, the cumulative error doctrine does not apply.
Firearm Enhancement Instruction
Sherrill next contends that the firearm enhancement must be vacated and dismissed because the relevant jury instruction omitted the nexus element, citing State v. Holt, 119 Wn. App. 712, 82 P.3d 688 (2004).
We recently addressed this issue in State v. Easterlin, Wn. App., 107 P.3d 773 (2005). There, we held that 'the State need not prove a nexus between the defendant, the weapon, and the crime when the defendant actually possesses the firearm.' Easterlin, 107 P.3d at 775.
Here, Sherrill actually possessed the firearm. The jury instructions provided that '[a] person commits the crime of Assault in the first Degree when, with intent to inflict great bodily harm, he assaults another with a firearm.' CP at 129. Thus, when the jury convicted Sherrill of first degree assault, it found that he actually possessed the firearm. Under Easterlin, the nexus requirement does not apply. As such, Sherrill's argument fails.
Sherrill also contends that due to prosecutorial misconduct, constructive possession became the law of the case and Holt applies. Because we find no prosecutorial misconduct, Sherrill's argument fails and State v. Willis, 153 Wn.2d 366, 103 P.3d 1213 (2005), which implicitly overruled Holt, applies. Willis, 153 Wn.2d at 374 (holding that '[e]xpress 'nexus' language is not required' in the jury instructions).
STATEMENT OF ADDITIONAL GROUNDS Speedy Trial
Sherrill raises further issues in his SAG. First, he argues that the trial court erred when it denied his motion to dismiss due to prosecutorial mismanagement and failure to provide discovery in a timely manner. He asserts that the trial court's error forced him to choose between adequately prepared counsel and his right to a speedy trial. We disagree.
Under CrR 8.3(b), a trial court may dismiss a case for prosecutorial mismanagement. See State v. Flinn, 119 Wn. App. 232, 247, 80 P.3d 171 (2003), review granted, 152 Wn.2d 1013 (2004). We review a trial court's decision under CrR 8.3(b) for a manifest abuse of discretion. State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997).
CrR 8.3(b) provides: 'The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.'
To prevail under CrR 8.3(b), a defendant must establish (1) arbitrary action or governmental misconduct and (2) prejudice materially affecting his right to a fair trial. Michielli, 132 Wn.2d 239-40. Failure to provide timely access to witnesses forms one basis of prosecutorial mismanagement. State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980). The governmental misconduct 'need not be of an evil or dishonest nature; simple mismanagement is sufficient.' State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993). As an extraordinary remedy, dismissal is warranted in only truly egregious cases. Flinn, 119 Wn. App. at 247.
Here, Sherrill's counsel moved to dismiss, arguing that the State failed to produce Blockman for an interview. On June 4, 2003, the trial court denied Sherrill's motion to dismiss, noting that it did not 'find that the State has not used reasonable efforts to provide or make Mr. Blockman available.' I RP at 28. It ordered that the defense be allowed to interview Blockman or 'a warrant for his attorney and his client will be issued.' I RP at 27. On June 11, 2003, the court recessed until June 16, 2003, to allow transcription of witness interviews.
Even assuming, without so finding, mismanagement, Sherrill suffered no prejudice. The trial court took curative steps when it ordered access to Blockman and delayed trial to allow defense counsel sufficient time to prepare. Given the extraordinary nature of dismissal, the trial court did not abuse its discretion when it denied Sherrill's motion.
Confrontation Clause
Sherrill further contends that the trial court violated his right to confront witnesses when it limited his cross-examination of Blockman. SAG at 20.
After hearing argument, the trial court limited cross-examination of Blockman as follows:
The prior ruling that I made was that there would be no discussion about the transaction or drug transaction between Mr. Blockman and anyone else. I think the testimony has already come out about the smoking of the marijuana, and that's proper inquiry.
With regard to pending charges, . . . I don't want any reference to pending charges or pending matters that have not been charged, and certainly it is appropriate — if Mr. Blockman indicates that he is a reluctant witness, that's certainly proper inquiry, depending on the nature of his testimony and what he says. I think that is [the] proper scope of cross-examination.
VI RP at 7-8.
The Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution afford a defendant the right to confront and fully cross-examine witnesses testifying against him. State v. Clark, 139 Wn.2d 152, 157-58, 985 P.2d 377 (1999).
The confrontation clause of the Sixth Amendment provides: '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' The Sixth Amendment applies to the State. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
Article I, section 22 of the Washington Constitution states in relevant part: '[i]n criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face.'
But the scope of cross-examination is a matter within the trial court's sound discretion. State v. King, 113 Wn. App. 243, 289, 54 P.3d 1218 (2002), review denied, 149 Wn.2d 1015 (2003). A trial court 'may reject lines of questions that only remotely tend to show bias or prejudice.' State v. Kilgore, 107 Wn. App. 160, 185, 26 P.3d 308 (2001), aff'd, 147 Wn.2d 288 (2002). The trial court abuses its discretion if the decision is based on untenable grounds or untenable reasons. State v. Gallagher, 112 Wn. App. 601, 609, 51 P.3d 100 (2002), review denied, 148 Wn.2d 1023 (2003).
Sherrill argues that the trial court violated his constitutional right to confrontation when it limited his ability to cross-examine Blockman about his 'bias and motivation to prevaricate.' SAG at 22. Because Blockman provided the sole eyewitness testimony about the identity of the shooter, Sherrill argues that '[t]he consideration that he would receive on pending and potential State and Federal charges in exchange for his testimony was of great significant and concern in Sherrill's case.' SAG at 21-22.
Here, Blockman said that Sherrill shot him four to five times, causing him significant pain and injury. As the victim, any bias or prejudice Blockman held toward Sherrill could be exposed through examination regarding the incident. Further, if Blockman presented as a 'reluctant witness,' the trial court stated that questions about pending charges and matters constituted 'proper inquiry.' V RP at 8. Accordingly, the trial court did not abuse its discretion in restricting the scope of Sherrill's cross-examination of Blockman.
Admission of Evidence
Sherrill next contends that the surveillance video was not a fair or accurate representation of the incident and, thus, should have been excluded. Additionally, he argues that the trial court committed 'egregious cumulative error' when it permitted repeated showings of the videotape. SAG at 28.
Sherrill's argument fails as he did not object below. Thetford, 109 Wn.2d at 397.
Lesser Included Instruction
Sherrill next contends that the trial court erred when it refused to instruct the jury on third degree assault.
When a trial court refuses to give a jury instruction, we review for abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998). A trial court's refusal to give a lesser included instruction will be reversed only if it prejudiced the defendant, such that there is a reasonable probability that the outcome would have differed had the instruction been given. Thomas, 110 Wn.2d 859, 862, 157 P.2d 572 (1988).
A party is entitled to a lesser included instruction when he meets both the legal and factual requirements. State v. McDonald, 123 Wn. App. 85, 88, 96 P.3d 468 (2004). To establish the legal prong, the proponent must establish that the lesser included instruction 'describes an offense that is an inferior degree of the charged offense, or, alternatively, that the proposed instruction describes an offense each element of which is included within the charged offense.' McDonald, 123 Wn. App. at 89 (footnotes omitted). Under the factual requirement, the proponent must establish that there is evidence to support the instruction, viewed in the light most favorable to the moving party. McDonald, 123 Wn. App. at 89; State v. Hoffman, 116 Wn.2d 51, 110-11, 804 P.2d 577 (1991).
Here, Sherrill proposed three relevant third degree assault instructions. Sherrill's proposed instruction 6 defined third degree assault as follows:
A person commits the crime of assault in the third degree when under circumstances not amounting to assault in either the first or second degree he or she with criminal negligence causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm or with criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering.
CP at 101.
Sherrill's proposed instruction 8 defined criminal negligence:
A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and the failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.
Criminal negligence is also established if a person acts intentionally or knowingly or recklessly.
CP at 103. Finally, Sherrill's proposed instruction 9 provided the 'to convict' instruction on third degree assault:
To convict the defendant of the crime of assault in the third degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 10th day of September, 2003 [sic], the defendant caused bodily harm to Warren Blockman;
(2) That the physical injury was caused by a weapon or other instrument or thing likely to produce bodily harm; or
(3) That the bodily harm was accompanied by substantial pain that extended for a period of time sufficient to cause considerable suffering;
(4) That the defendant acted with criminal negligence; and
(5) That the acts occurred in the State of Washington.
CP at 104.
The trial court heard arguments on the jury instructions just before the State rested. When refusing to instruct the jury on third degree assault, the court noted, 'I will reserve final ruling once I've heard all of the evidence that is being presented to the jury. But at this point I would not include [the instructions relating to third degree assault].' VI RP at 65.
Assuming Sherrill met the legal prong, no evidence established that he acted with mere criminal negligence. The State presented evidence that Sherrill acted with intent, and he did not present evidence on his own behalf. Even viewed in the light most favorable to Sherrill, he failed to establish the factual prong. Thus, the trial court did not abuse its discretion when it refused to instruct the jury on third degree assault.
Same Criminal Conduct
Sherrill also contends that the trial court erred in determining that his 1990 convictions of vehicular assault and hit and run were not the same criminal conduct. SAG at 26.
A trial court's determination as to whether prior offenses comprised the same criminal conduct will not be disturbed absent clear abuse of discretion or misapplication of the law. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440, cert. denied, 498 U.S. 838 (1990). Under the same criminal conduct test, two or more current offenses are counted as one crime only if they (1) have the same objective criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. State v. Tili, 139 Wn.2d 107, 123, 985 P.2d 365 (1999). Each element of the test must be satisfied for multiple offenses to encompass the same criminal conduct. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).
In the present case, there is little information about Sherrill's 1990 convictions. The judgment and sentence in the current matter states that he committed vehicular assault and hit and run on July 28, 1990. At sentencing, Sherrill's counsel argued that the trial court should count these prior convictions as one crime because '[t]hey were committed at the same time, same place. They were concurrent sentences.' IV RP at 146.
Insufficient evidence exists in the record to determine whether these offenses had the same criminal intent, were committed at the same time and place, and involved the same victim. Because Sherrill failed to provide such information, his SAG argument fails. See RAP 9.2(b).
RAP 9.2(b) provides, in relevant part: 'A party should arrange for the transcription of all those portions of the verbatim report of proceedings necessary to present the issues raised on review.'
Cumulative Error
In addition to having raised cumulative error based on multiple instances of prosecutorial misconduct, Sherrill also contends that other cumulative error denied him a fair trial. SAG at 32. Because we find no error, this argument fails.
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.
ARMSTRONG, J. and HUNT, J., concur.