STATE v. HARTZELL

a shell casing or expended shell. You must not consider this evidence for any other purpose.

¶30 Hartzell offered three variations of a limiting instruction, but ultimately proposed the following:

Evidence of unrelated alleged prior bad acts or crimes has been introduced from another county for the limited purpose of showing an alleged association to particular defendants to particular evidence. It may not be considered for any other purpose.

The State proposed an instruction that referred to the evidence from other counties as circumstantial evidence of an association between the defendants and the charged crime.

¶31 The court preferred to give a single limiting instruction applicable to both defendants to avoid confusion: "If it's impossible to do that, I would consider separate instructions for both of them, but I see that as somewhat problematic." The court proposed the following, which ultimately was given as instruction 27:

Report of Proceedings at 634.

Evidence from other jurisdictions has been admitted that you may consider as establishing an association of the defendants to the crimes charged. You must not consider this evidence for any other purpose.

The appellants contend that instruction 27 was a comment on the evidence.

¶32 Under article IV, section 16 of our constitution, a judge is prohibited from conveying to the jury his personal opinion about the merits of the case or from instructing the jury that a fact at issue has been established. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). Any remark "that has the potential effect of suggesting that the jury need not consider an element of an offense" could qualify as a judicial comment. Levy, 156 Wn.2d at 721. Impermissible judicial comments on the evidence are presumed to be prejudicial. Reversal is required unless the State shows that the defendant was not prejudiced or the record affirmatively shows that no prejudice could have resulted. Levy, 156 Wn.2d at 723.

¶33 At the same time, a trial court must give a limiting instruction where evidence is admitted for one purpose but not for another and the party against whom the evidence is admitted asks for a limiting instruction. ER 105; Gallagher, 112 Wn. App. at 611. The trial court is not obliged to give the instruction in the exact language proposed by the defendant. The court has broad discretion to fashion its own limitation on the use of the evidence. Gallagher, 112 Wn. App. at 611.

¶34 Tieskotter contends that instruction 27 told the jury that the two defendants were involved in each other's crimes in Kitsap County and Pierce County This is a strained reading. The evidence admitted was clear that Tieskotter was involved only in the Pierce County incident and was not part of the incident in Kitsap County. The trial court properly denied Tieskotter's motion for a new trial raising this argument.

¶35 Hartzell argues that by referring to evidence "from other jurisdictions," instruction 27 encouraged the jury to take all of the unfavorable evidence about him from the Kitsap County incident — the description of him as a "skinhead," the evidence that he lied about his name and birth date, the threats he made against his girl friend — and reason that a person who did all of those things likely committed the Thurston County shooting. But as the State points out, a limiting instruction "does not limit the evidence to be considered, but rather the purpose to which it can be put. The instruction here does just that; the jury could consider it only to determine whether it connected the defendants to the Thurston County crimes."

Br. of Resp't at 30.

¶36 Hartzell raises a closer issue when he argues that the instruction was equivalent to a directed verdict with its language that the jury "may consider" the evidence from the other counties "as establishing an association of the defendants to the crimes charged." Below, Hartzell asked the court to modify the instruction to say that the jury "may or may not" consider the evidence as establishing an association. The court rejected that request, explaining that "may" was permissive.

Report of Proceedings at 638.

¶37 A court may not 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). In Becker, the trial court imposed enhanced sentences on the defendants because they had delivered cocaine within 1,000 feet of the Youth Education Program, a general equivalency degree program administered by the Seattle School District. The statute authorizing the enhancement required that the delivery occur within 1,000 feet of "school grounds." The State claimed that the Youth Education Program was a school, but whether it was or not was the major issue at trial. A special verdict form asked the jury whether the defendants were "`within 1000 feet of the perimeter of school grounds, to-wit: Youth Employment Education Program School at the time of the commission of the crime?'" Becker, 132 Wn.2d at 64 (emphasis added). Our Supreme Court reversed the sentence enhancements, concluding that by identifying the program as a school in the special verdict form, the trial court "literally instructed the jury that [Youth Education Program] was a school." Becker, 132 Wn.2d at 65; see also State v. Jackman, 156 Wn.2d 736, 745, 132 P.3d 136 (2006) (court commented on the evidence by putting victims' dates of birth in the to-convict instructions, where their minority was an element the State had to prove).

¶38 Hartzell maintains that instruction 27 similarly instructed the jury that the defendants were associated with the crimes charged in Thurston County as a matter of law, instead of leaving it to the jury to decide that essential question as a factual matter. The State offers what it argues is a more reasonable reading of the instruction: "You may consider this evidence to decide whether it establishes a connection between the defendants and the charged crimes." In hindsight, the language the State now offers might have been preferable. Nevertheless, the language the trial court used was not comparable to the special verdict form in Becker or the birthdates provided by the court in Jackman. It did not explicitly direct a verdict or remove a factual issue from the jury's consideration.

Br. of Resp't at 31.

¶39 As the trial court correctly stated, "may" is generally viewed as a term that sufficiently communicates to a jury that it is permitted but not required to find a particular fact. Our Supreme Court faced a similar question when asked to decide whether the inference of intent instruction used in burglary cases created a mandatory or permissive inference. State v. Brunson, 128 Wn.2d 98, 905 P.2d 346 (1995). The instruction in that case stated, "`A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.'" Brunson, 128 Wn.2d at 101. The court concluded the language of the instruction was "clearly discretionary" and nothing in it suggested that the jury "must" infer criminal intent if it found unlawful entry. Brunson, 128 Wn.2d at 106. Similarly here, we conclude the use of the word "may" was permissive and nothing in the language of instruction 27 suggested that the jury "must" find that the evidence from other jurisdictions associated the defendants to the Thurston County shooting.

¶40 The State's argument did not mislead the jury on this point. The prosecutor argued that the connection of the guns fired in Pierce and Kitsap Counties to the guns fired at Hoage's apartment in Thurston County was circumstantial evidence that Hartzell and Tieskotter committed the Thurston County crimes:

Now, ladies and gentlemen, [Hartzell] does argue that, well, there is nobody that puts me in Thurston County on April 7th, and Mr. Woodrow argues for Mr. Tieskotter that no one puts him in Thurston County on April 7th. I know that, and you know that. We have no direct evidence of that, but what are we to do?

We must rely on circumstantial evidence, that law that allows you to use your common sense and draw reasonable inferences. . . .

. . . .

And when you have a gun used by Mr. Tieskotter and independently a gun associated with Mr. Hartzell bound together at a residence on April 7th because they are the weapons used, that is compelling evidence of not only accomplice liability, but that these people were doing the shooting.

¶41 Instruction 27 did not prevent the appellants from arguing their theories of the case. Tieskotter's lawyer began his argument stating that "Mr. Tieskotter disputes . . . that he was associated with" the Thurston County crime. Much of Tieskotter's closing argument was an attempt to refute the evidence that allegedly connected him to the shooting in Thurston County. He argued that he did not have a motive to shoot at Hoage's apartment and, although Hartzell may have had a motive, he did not assist Hartzell because the friendship they had dissolved before the shooting. Similarly, Hartzell argued that he was not connected to the gun in Kitsap County and, therefore, the gun evidence did not connect him to the Thurston County shooting.

Report of Proceedings at 694.

¶42 Although the instruction perhaps could have been more artfully worded, we conclude the trial court successfully maintained the necessary balance between the obligation to give a satisfactory limiting instruction and the obligation to refrain from commenting on the evidence.

STATE'S CLOSING ARGUMENT

¶43 Hartzell contends that the prosecutor's closing argument denied him a fair trial because it shifted the burden of proof and implied facts not in evidence. Hartzell particularly complains about arguments regarding his failure to call certain witnesses.

¶44 A defendant who alleges prosecutorial misconduct must establish that the prosecutor's conduct was both improper and prejudicial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Prejudice is established only if there is a substantial likelihood that the misconduct affected the jury's verdict. Dhaliwal, 150 Wn.2d at 578. A defendant who does not make a timely objection waives review unless the prosecutorial misconduct "is so flagrant and ill intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct." State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).

¶45 Hartzell mentioned in his closing argument that some people who may have had relevant information about the case, including Dodge and Juan Copin, were not called to testify at trial. According to Hoage's testimony, Copin was someone she initially suspected of being one of the shooters. Hartzell suggested that the State did not call the missing witnesses to testify because their testimony would have contradicted the State's evidence:

I will tell you where they are. [The prosecutor] struck them from the list. They were all on his list, and he struck them. He struck them, because he is afraid they were going to tell you the truth.

But this is not going to be [a] case about where somebody comes up there and tell[s] you the truth. The truth is something you are going to have to infer, infer yourself, and it's not what has been said that speaks the loudest; it's what you haven't heard.

¶46 In response, the prosecutor argued that Hartzell could have called Sarah Dodge as a witness:

Ms. Dodge is available to the defense, Mr. Hartzell. Sarah Dodge was his girlfriend. Sarah Dodge could have been called by Mr. Hartzell. I have been attacked for not calling Sarah Dodge, but I can assure you, ladies and gentlemen, that the defense could have called her.

As a matter of fact, it's, as you know, ladies and gentlemen, a defendant naturally and, thank God, has many rights under our system. They don't have to testify. They are presumed innocent until proven guilty, and during a trial such as this, they don't have to do anything. They don't have to put on a case. They don't have to put on any witnesses, but they can.

Mr. Hartzell could have called these people he has named like Sarah Dodge and this Juan Copin. He did not, and you may consider the evidence and the lack of evidence, and you might consider why Mr. Hartzell did not offer Ms. Dodge or for that matter Juan Copin.

Hartzell did not object to these comments.

¶47 Even had there been a timely objection, we would not find misconduct. Although an attorney may not make prejudicial statements in closing argument that are not supported by the record, counsel is given latitude to argue the facts and reasonable inferences from the facts. Dhaliwal, 150 Wn.2d at 577. A prosecutor may encourage the jury to draw an unfavorable inference from a defendant's failure to produce evidence that is properly part of the case and is within the control of the defendant in whose interest it would be to produce it, unless the prosecutor's comments infringe on the defendant's constitutional rights. State v. Blair, 117 Wn.2d 479, 485-91, 816 P.2d 718 (1991).

¶48 Hartzell argues that the prosecutor's comments implied that he was obligated to present evidence and infringed upon his right to be presumed innocent. The arguments, however, were a pertinent reply to Hartzell's own comments and did not shift the burden to present evidence to Hartzell. On the contrary, the prosecutor specifically emphasized that Hartzell had no duty to present evidence.

¶49 Hartzell did not object to these arguments, the arguments were a pertinent reply to Hartzell's closing statement, and they were not so flagrant and ill intentioned that a curative instruction would have been useless.

¶50 Hartzell also argues that the prosecutor committed misconduct when arguing that Hartzell's calling his mother to testify and give him an alibi was an act of desperation. The prosecutor commented that of course a mother would try to help her son when told that a particular date and time was important. Hartzell's objection was overruled. He now contends the comment implied that Hartzell told his mother what to say The comment, however, did not imply facts not in evidence as it would not have been understood as quoting from evidence not admitted. The prosecutor was simply dramatizing an argument based upon common experience, in response to Hartzell's argument in which he vouched for his mother's veracity. See State v. Barrow, 60 Wn. App. 869, 873-74, 809 P.2d 209, review denied, 118 Wn.2d 1007 (1991).

¶51 We conclude prosecutorial misconduct did not deprive Hartzell of a fair trial.

FIREARM ENHANCEMENT

¶52 Hartzell and Tieskotter contend that the trial court erred by imposing a 36-month firearm sentence enhancement when the special verdict forms asked only whether the defendants were armed with a deadly weapon. Although our original opinion found the error to be harmless, the Supreme Court upon the defendants' petitions for review remanded to this court for reconsideration in light of State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010). The cited case holds that the sentencing judge is bound by the finding made by the jury in the special verdict form that each defendant was armed with a deadly weapon. In light of Williams-Walker, resentencing is required.

POSSESSION OF FIREARM — KNOWLEDGE ELEMENT

¶53 The trial court instructed the jury that to convict the defendants of first degree unlawful possession of a firearm, the State needed to prove the following elements beyond a reasonable doubt:

(1) That on or about April 7, 2007, the defendant had a firearm in his possession or control;

(2) That the defendant had previously been convicted of a serious offense; and

(3) That the possession or control of the firearm occurred in the State of Washington.

"Knowing possession" is an essential element of the crime of unlawful possession of a firearm. State v. Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000). The State, therefore, concedes that omitting the requirement of knowledge from instruction 23 was an error of constitutional magnitude. The State contends, however, that the error does not require reversal.

¶54 An instruction that omits an element of the offense does not necessarily render the trial fundamentally unfair. Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). To determine whether the omission of an element is harmless error, the court considers whether the omitted element was supported by uncontroverted evidence. Neder, 527 U.S. at 19; State v. Jennings, 111 Wn. App. 54, 64, 44 P.3d 1 (2002), review denied, 148 Wn.2d 1001 (2003).

¶55 In this case, the jury found each of the defendants guilty of second degree assault while armed with a deadly weapon for shooting into Hoage's apartment. The defendants did not defend against the charge of unlawful possession by claiming they did not know they possessed guns. Rather, they denied they were the ones who shot into the apartment. It is uncontroverted that the shooters, whoever they were, knew they were in possession of guns. Under these circumstances, omitting the element of knowledge from the instruction was harmless error.

¶56 Tieskotter contends that his counsel provided ineffective assistance because he did not object to the instruction omitting the element of knowledge. Because Tieskotter was not prejudiced by the omission, this argument fails.

SUFFICIENCY

¶57 Tieskotter argues that the evidence was insufficient to support his convictions for second degree assault and first degree unlawful possession of a firearm. A person is guilty of the crime of second degree assault if he "[a]ssaults another with a deadly weapon." RCW 9A.36.021(1)(c). An intentional shooting is an assault. State v. Elmi, 166 Wn.2d 209, 216, 207 P.3d 439 (2009). Firearms are considered deadly weapons. RCW 9A.04.110(6). A "firearm" is "a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder." RCW 9.41.010(7). A person is guilty of first degree unlawful possession of a firearm if he has a firearm in his possession or control and he previously had been convicted of a serious offense. RCW 9.41.040(1)(a).

¶58 Evidence is sufficient if, when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). Circumstantial evidence is considered as reliable as direct evidence. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). When deciding whether the evidence was sufficient to support a conviction, this court considers the State's evidence to be true and draws all reasonable inferences from the evidence in favor of the prosecution. Goodman, 150 Wn.2d at 781.

¶59 Tieskotter sets forth evidence that he argues is inconsistent with the jury's finding that he possessed a firearm and shot it at Hoage's apartment. But looking at the evidence in the light most favorable to the State, the evidence was sufficient for any rational trier of fact to find Tieskotter guilty of second degree assault and first degree unlawful possession of a firearm. Two eyewitnesses to the Pierce County crime testified that Tieskotter shot a 9 mm handgun. An expert witness testified in the State's case that the gun used in that shooting in Pierce County was the same weapon fired into Hoage's apartment. Other witnesses testified that Tieskotter and Hartzell were so close they were like brothers. Hartzell had been staying with Hoage a few days before the shooting, but she had asked him to leave. He sent her a threatening text message after the shooting. Tieskotter was using his girl friend's car at that time, and a witness testified that the girl friend's car was the one he saw when shots were fired at Hoage's apartment. Tieskotter stipulated that he had a prior conviction for a serious offense. This evidence was sufficient proof that Tieskotter was guilty of the assault and unlawful possession of a firearm.

MAXIMUM TERM

¶60 The maximum term for each of Tieskotter's convictions (assault with a deadly weapon in the second degree and unlawful possession of a firearm in the first degree) is 10 years. The trial court ordered Tieskotter to serve a term of 84 months with a 36-month firearm enhancement for his assault conviction and 116 months for his unlawful possession conviction, for a total term of 120 months. In addition, the court ordered Tieskotter to serve 18 to 36 months in community custody. The addition of the community custody term resulted in an overall sentence of 138 to 156 months, which exceeds the maximum term.

¶61 The State concedes that Tieskotter's case must be remanded to have the sentence corrected and argues that, even though Hartzell did not raise the issue, his case should be remanded, too. In light of a recent Supreme Court decision, the concession is well taken:

We hold that when a defendant is sentenced to a term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the appropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum.

In re Pers. Restraint of Brooks, 166 Wn.2d 664, 675, 211 P.3d 1023 (2009).

¶62 As discussed above, the court erroneously enhanced each defendant's sentence for use of a firearm when the jury verdict authorized only the shorter enhancement for use of a deadly weapon. A remand is necessary to correct that error, and at that time, the court must ensure that the overall sentence does not exceed the maximum term in each case. Because there will be a remand and any maximum term issue can be addressed at that time, Tieskotter's claim of ineffective assistance based on the error fails.

STATEMENT OF ADDITIONAL GROUNDS — HARTZELL

¶63 In a statement of additional grounds for review pursuant to RAP 10.10, Hartzell argues that his conviction for assault in the second degree must be reversed and the charge dismissed because the court omitted the essential element of intent from the "to convict" instruction. Hartzell's argument fails because the instructions as a whole properly informed the jury that it must find that he acted intentionally. Instruction 11 informed the jury that an assault is "an intentional touching or striking or cutting or shooting of another person," or "an act, with unlawful force, done with intent to inflict bodily injury upon another," or "an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury."

¶64 Hartzell argues that he was forced to waive his right to effective assistance of counsel because his court-appointed lawyer was not prepared for trial when his speedy trial deadline was nearing. Hartzell claims that he did not unequivocally waive his right to be represented.

¶65 A criminal defendant may waive his right to be represented by counsel and may choose instead to represent himself. State v. Woods, 143 Wn.2d 561, 585, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001). To waive the right of legal representation, the defendant must state his request un-equivocally. State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002), review denied, 148 Wn.2d 1022 (2003).

¶66 Although Hartzell said he wanted to represent himself because his counsel indicated he could not be prepared for trial before the speedy trial deadline passed, Hartzell also wanted to represent himself because he was confident that the State's evidence was insufficient to convict him. He said that the charges against him in Kitsap County were dropped and, therefore, he did not think the Thurston County prosecutor could connect him to the gun. The court questioned Hartzell thoroughly about his desire to represent himself and warned him of the dangers. Hartzell acknowledged that he understood the risks. Thus, the record reflects that he voluntarily and unequivocally waived his right to counsel.

NO CUMULATIVE ERROR

¶67 Appellants argue that their convictions should be reversed based on cumulative error. That doctrine applies only if there were several trial errors, none of which standing alone is sufficient to warrant reversal, that when combined may have denied the defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because the defendants have not shown there were several trial errors, reversal based on cumulative error is not warranted.

CONCLUSION

¶68 The convictions of Hartzell and Tieskotter are affirmed. The judgment and sentence in each case is remanded for resentencing consistent with Williams-Walker and, to the extent still applicable, Brooks.

GROSSE, J., and AGID, J. PRO TEM., concur.