Opinion
No. 34835-7-II
June 17, 2008 UNPUBLISHED OPINION
ORDER AMENDING OPINION AND DENYING MOTION FOR RECONSIDERATION
Appellant Ted Jensen moves this court for reconsideration of its opinion filed on April 29, 2008. This court amends the opinion as follows: On page 11 of the slip opinion, the following paragraph is deleted:
Finally, appellate counsel does not offer any opposing testimony, from the properly recorded record, from other witnesses, or Jensen's testimony, differing from the testimony in the narrative report of proceedings that would indicate that Nelson was an eyewitness to the event.
and the following paragraph is inserted:
Finally, appellate counsel does not offer any opposing testimony, from the properly recorded record, from other witnesses' testimony, differing from the testimony in the narrative report of proceedings that would indicate that Nelson was an eyewitness to the event.
IT IS SO ORDERED.
IT IS FURTHER ORDERED that Jensen's motion for reconsideration is denied because the narrative report of proceedings was properly before this court on appeal pursuant to RAP 9.6(a).
Dated this ____ day of, 2008.
Bridgewater, P.J.
We concur:
Hunt, J.
Penoyar, J.
Ted Nathaniel Jensen appeals his convictions for first degree assault with a deadly weapon, felony harassment with a deadly weapon, and first degree vehicle prowling with a deadly weapon. The State cross-appeals, contending that under State v. Jones, 159 Wn.2d 231, 234, 149 P.3d 636 (2006), cert. denied, 127 S. Ct. 2066 (2007), the trial court erroneously calculated Jensen's offender score. Jensen also raises several Statement of Additional Grounds (SAG) issues, none of which warrants reversal or remand of his convictions. We affirm Jensen's conviction, but we vacate his sentence and remand for resentencing.
RAP 10.10.
FACTS
During late October and early November 2005, Gery Snapp was living in his motor home in the Wal-Mart parking lot on Ocean Beach Highway in Longview, Washington. It was there that Snapp met Ted Jensen, who was also staying in his vehicle in the Wal-Mart parking lot. Immediately after meeting, Jensen took Snapp to the Salvation Army for dinner. On the way back to Wal-Mart, they picked up Susan Meyer. Neither Jensen nor Snapp knew Meyer before picking her up that evening. Nevertheless, Snapp allowed Meyer to sleep on his sofa bed in the front of his motor home for the next two days.
A few days before November 1, 2005, and only a few days after meeting, the two men had a disagreement. Thereafter, Snapp forbid Jensen to enter his motor home under any circumstances. Meyer, however, continued to stay with Snapp.
In the early morning of November 1, Snapp awoke to loud music. He grabbed a flashlight to investigate because the motor home lights were not functioning. He looked out the window in the side door of the motor home and did not see anything. Snapp then opened the door, stood on the step entrance of the motor home, and shined the flashlight on the ground. Although he heard Jensen's voice, he did not see Jensen.
Snapp maintains that he turned around to put on his shoes and intended to go outside to speak with Jensen. As he turned around, Jensen stabbed him in the back. A brawl ensued. The men moved from the step of the motor home to the sofa bed, where Jensen stabbed Snapp repeatedly. And again, according to Snapp, Jensen was saying, "you'll always remember Monk `cause I'm gonna kill ya." 1 RP at 117-18. Snapp also admitted that he hit Jensen with the flashlight in self-defense. He said that at no time before the stabbing did he threaten Jensen with the flashlight.
According to Meyer, who woke up as Snapp was going to investigate the loud music, Snapp and Jensen were arguing loudly. Specifically, she heard Jensen ask if Meyer was in the motor home and Snapp responding that she was not. But then Jensen saw Meyer inside the motor home. Snapp was yelling at Jensen to leave, Jensen was asking Meyers to come with him, and Meyers was telling Jensen that she did not want to go with him. Snapp then turned to come back into the motor home and Jensen followed. And, according to Meyer, suddenly Snapp and Jensen "were going at each other." 2 RP at 253. She said they were fighting "[w]ith a knife, and with the flashlight; they were both doing it." 2 RP at 253. Meyer said the brawl continued until she agreed to go with Jensen, at which point Jensen got up to leave. But Meyer recanted and refused to go. Jensen then left on his own accord.
Charles and Trudi Wade, who were also living in their van in the Wal-Mart parking lot on the day of the altercation, woke up around 4:00 AM to yelling and fighting coming from Snapp's motor home. Charles went outside and saw Snapp, who said he had been stabbed. Charles also heard someone say, "you're next," but could not see anyone. 2 RP at 161. Charles ran across the street to a mini mart to call 911.
We refer to Charles and Trudi by their first names for clarity; we mean no disrespect.
Charles and Trudi both testified on direct examination that before the altercation, they had ingested heroin and were sleeping.
Trudi claimed that she heard Jensen say, "something to the effect of, it's time to die or how do you feel about dying." 2 RP at 149. She also heard Jensen tell Charles that "[Charles] was next." 2 RP at 149. After Charles ran to the mini mart and Jensen left the immediate vicinity, Trudi went outside to help Snapp because he was bleeding in the parking lot. Afterward, Trudi ran to McDonald's to call 911.
An ambulance transported Snapp to the emergency room at St. John's Medical Center, where Dr. Dane Moseson treated him. Dr. Moseson described Snapp's injuries as four deep wounds and other superficial wounds. Snapp was bleeding heavily and required surgery for his life-threatening injuries. He remained in intensive care for nine days, although he was stable after the first day.
Meanwhile, upon leaving the motor home, Jensen got in his car and drove to the front of the Wal-Mart store. He told the Wal-Mart security guard that a man in the motor home hit him with a big flashlight and threw urine on his car. Jensen claimed that he took a knife away from his attacker and stabbed him in self-defense. He asked the security guard to call the police and an ambulance.
Officer Michael Watts of the Longview Police Department, arrived on the scene soon after the incident. Jensen relayed his version of the events to Officer Watts. Officer Watts called an ambulance because Jensen was bleeding and had a sizable gash on his head. The ambulance transported Jensen to St. John's Medical Center and Officer Watts followed in his patrol car. Officer Watts continued his investigation at the hospital, where Jensen indicated that he parked in front of Snapp's motor home because Meyers was staying there and he felt that something bad was going to happen to her.
Around 6:30 AM, Officer Mike Rabideau relieved Officer Watts. While escorting Jensen to the x-ray room, Jensen said, "after 35 years, I'm finally getting some respect." 2 RP at 301. The hospital subsequently released Jensen and he repeated that statement to Officer Rabideau. In addition, Jensen said, "the methies had messed with the wrong man." 2 RP at 301.
Detectives Tim Deisher and Doug Kazensky interviewed Jensen at the Longview Police Department at about 10:00 AM on November 1, 2005. Jensen again relayed his version of the events that took place earlier that morning. He admitted that he was playing loud music outside the motor home and yelling for Meyer. He also claimed that Snapp flashed his headlights at him. Jensen stated that Snapp came outside and poured urine on his car. Then, according to Jensen, he got out of the car and Snapp hit him twice in the head with the flashlight. And again, Jensen claimed that Snapp pulled out a knife, which he took away and proceeded to stab Snapp in self-defense. He estimated that he stabbed Snapp between six and eighteen times. During the interview, Jensen also claimed he had a black belt in karate. He said that he was in love with Meyer and that he was looking for a place for them to live together. Jensen maintained that he and Meyer had a sexual relationship. He thought that Meyer was in trouble that night, which is why he went to the motor home. Finally, Jensen claimed that he never went inside the motor home during the altercation.
Jensen told the detectives that he was one of the top psychics in the "northern region" and he could sense that Meyers was in trouble. 2 RP at 204.
Detectives searched the area of the altercation but were unable to find a knife. Later, they found a knife on Jensen's person, but they never determined whether the knife was the same one used to stab Snapp. The detectives also investigated the motor home after the altercation, which was covered in blood.
On November 4, 2005, the State charged Jensen with first degree assault with a deadly weapon, felony harassment with a deadly weapon, and first degree vehicle prowling with a deadly weapon. Following a three-day trial, a jury convicted Jensen as charged. On May 12, 2006, the trial court sentenced Jensen to 240 months' confinement. Jensen timely appeals.
ANALYSIS I. Sufficient Record of Completeness
In preparing for this appeal, Jensen's appointed counsel discovered that Edward Nelson's testimony, the Wal-Mart security guard on duty during the incident, was not recorded due to a clerk's error. Jensen's counsel contacted the trial court and the State, apparently to request an agreed to report of proceedings to detail Nelson's testimony. The State made numerous attempts to contact Jensen's trial counsel, who had since moved out of state. Jensen's trial counsel eventually responded that he had no independent memory or records on which he could reliably reconstruct the missing testimony. As a result, the State filed a motion to supplement the record with a narrative report of Nelson's testimony. The State based its narrative report on (1) the police report detailing the police interview of Nelson after the accident; (2) a one-page written statement Nelson gave to the police; and (3) the State's handwritten notes from Nelson's testimony at trial.
After a hearing on January 26, 2007, the trial court granted the State's motion to supplement the record. Jensen's appellate counsel was not present at the hearing before the trial court. But the State provided a copy of the proposed narrative report of proceedings to appellate counsel before the January 25, 2007, one day before the hearing. There is no evidence in the record that Jensen's appellate counsel filed any affidavits or certificates, with either the trial court or this court, contesting the actual contents of the narrative report of proceedings.
As an initial matter, Jensen suggested during oral argument that the narrative report of proceedings was not properly before this court. Citing Rule of Appellate Procedure (RAP) 9.9, he argued that the trial court lacked jurisdiction to supplement the record with the narrative report of proceedings because at the time, it had already transmitted the report to us. And indeed, Jensen is correct that at the time it granted the State's motion to supplement the record, the trial court did not have jurisdiction to do so because it had already transmitted the report of proceedings to us. But Jensen fails to acknowledge that on April 18, 2007, the State properly filed a supplemental designation of clerk's papers, including the narrative report of proceedings and related documents, under the authority of RAP 9.6(a). The State also filed a motion with us to supplement the record with (1) the narrative report of proceedings and (2) verbatim report of proceedings from a sentencing hearing. Our commissioner appropriately granted that motion under RAP 9.10, which contemplates a previous submission of the record as opposed to RAP 9.9. We therefore hold that the narrative report is properly before us on appeal. See RAP 9.10 (authorizing an appellate court to correct or direct supplementation of the record "to permit a decision on the merits.").
Jensen contends that the narrative report of Nelson's testimony is insufficient. He maintains that the record is not sufficiently complete for appellate review because Nelson's verbatim testimony is not included in the record. In response, the State argues that Jensen is not entitled to reversal for this error because he cannot demonstrate prejudice from the omission of Nelson's testimony from the verbatim report of proceedings. The State is correct.
We note that there is no evidence in the record indicating that Jensen's appellate counsel contested the contents of the narrative report of proceedings at any point during the proceedings. Rather, Jensen's counsel maintains that because she was not trial counsel, she cannot judge the contents of the narrative report.
"A criminal defendant is `constitutionally entitled to a `record of sufficient completeness' to permit effective appellate review of his or her claims." State v. Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003) (quoting State v. Thomas, 70 Wn. App. 296, 298, 852 P.2d 1130 (1993) (quoting Coppedge v. United States, 369 U.S. 438, 446, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962)). "A record of sufficient completeness does not translate automatically into a complete verbatim transcript." Tilton, 149 Wn.2d at 781 (internal quotations omitted). The absence of a portion of the record is not reversible error unless the defendant can demonstrate prejudice. State v. Miller, 40 Wn. App. 483, 488, 698 P.2d 1123, review denied, 104 Wn.2d 1010 (1985). The usual remedy for a defective record is to supplement the record with appropriate affidavits and have the judge who heard the case resolve those discrepancies. Tilton, 149 Wn.2d at 783. But when the affidavits are unable to produce a record that satisfactorily recounts the events material to the issues on appeal, a new trial must be ordered. Tilton, 149 Wn.2d at 783. Jensen relies primarily on two cases, State v. Larson, 62 Wn.2d 64, 381 P.2d 120 (1963), and Tilton, to support his contention that the narrative report of Nelson's testimony is insufficient to review issues he raises on appeal. But both Larson and Tilton are distinguishable from this case. In Tilton, most of the defendant's testimony was not recorded due to a clerk's error. Tilton, 149 Wn.2d at 779. The parties discovered the error before sentencing. Tilton, 149 Wn.2d at 780. Following sentencing, the State moved to reconstruct the record, and the trial court requested that the State and defense counsel submit affidavits of their recollection of the defendant's testimony. Tilton, 149 Wn.2d at 780. In his affidavit, defense counsel stated that he had no independent recollection of the testimony because he replaced the defendant's trial counsel shortly before sentencing. Tilton, 149 Wn.2d at 780-81. Nevertheless, the trial court found "no conflicts of consequence in the affidavits" and granted the State's motion to adopt the affidavits as the reconstructed record. Tilton, 149 Wn.2d at 781.
The Washington Supreme Court held that the missing portion of the record — the defendant's testimony — was of critical importance to the appeal. Tilton, 149 Wn.2d at 783. It reasoned that it was impossible using the reconstructed record to establish the elements of an ineffective assistance of counsel claim based on trial counsel's failure to raise certain affirmative defenses, although there was a significant amount of evidence in the record suggesting affirmative defenses were viable. Tilton, 149 Wn.2d at 783. Therefore, it concluded the record was not sufficiently complete for appeal. Tilton, 149 Wn.2d at 783.
Likewise, in Larson, the Washington State Supreme Court held that the record was not sufficiently complete for appeal. Larson, 62 Wn.2d at 67. There, the court reporter's notes for the entire trial were lost and the trial court submitted a narrative statement of facts in place of a verbatim transcript. Larson, 62 Wn.2d at 65. The attorney on appeal was not the trial attorney, and, thus, he had no recollection of the trial. Larson, 62 Wn.2d at 65. Because defense counsel on appeal did not represent the defendant at trial, he was unable to determine satisfactorily what errors to assign for the purpose of obtaining an adequate review on appeal. Furthermore, in regard to the assigned errors, appellate counsel was unable to test the sufficiency of completeness of the narrative statement of facts for an adequate review by this court. Larson, 62 Wn.2d at 67.
Similar to Larson and Tilton, Jensen's trial counsel is not representing him on appeal and informed the trial court that he has no independent recollection of Nelson's testimony to confirm accuracy of the narrative report of his testimony. But unlike both Larson and Tilton, Jensen fails to articulate how Nelson's testimony affects his errors assigned on appeal. He simply contends that substitution of the verbatim report of proceedings of Nelson's testimony with the narrative report of proceedings of Nelson's testimony prohibits us from effectively deciding issues on appeal. Appellate counsel does not demonstrate any relevance of Nelson's testimony to the assignment of errors, nor does Jensen's SAG allege any relevance to any issues pertaining to the assignment of errors.
Finally, appellate counsel does not offer any opposing testimony, from the properly recorded record, from other witnesses, or Jensen's testimony, differing from the testimony in the narrative report of proceedings that would indicate that Nelson was an eyewitness to the event. Absent a connection between Nelson's missing verbatim testimony and the issues raised on appeal, Jensen cannot demonstrate prejudice. See Tilton, 149 Wn.2d at 785. We therefore hold that the record is sufficiently complete for appellate review of the issues Jensen raises on appeal. See Thomas, 70 Wn. App. at 299 (finding that the constitution does not guarantee a criminal appellant a perfect verbatim record on appeal).
II. Admission of Hearsay
Next, Jensen contends that reversal of his conviction is required because the trial court erroneously admitted inadmissible hearsay prejudicial to his defense. He challenges statements made by Officer Buchholz, Officer Rabideau, Trudi Wade, and William White. We review each argument in turn.
We review the trial court's evidentiary rulings for an abuse of discretion; abuse occurs only if the ruling was manifestly unreasonable or based on untenable grounds. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). Jensen bears the burden of proving abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). Even if Jensen meets his burden of showing that the trial court abused its discretion in admitting hearsay statements, reversal is not required if the error was harmless. State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001).
A. Officer Buchholz's Testimony
First, Jensen complains that the trial court erroneously admitted hearsay statements that witnesses at the scene made to Officer Buchholz during his investigation of the altercation. Officer Buchholz testified that he investigated the lock on the motor home door to determine whether it was damaged because, "[s]omeone had said during the time that [he] was there that the front door to the motor home had been ripped open." 2 RP at 306. Jensen argues that this statement was prejudicial and warrants reversal of his convictions. But his argument lacks merit.
Jensen relies solely on State v. Edwards, 131 Wn. App. 611, 128 P.3d 631 (2006), to support his argument. In Edwards, Division Three of this court held that the trial court's admission of a detective's testimony that a confidential informant told him that the defendant was dealing crack cocaine constituted reversible error. Edwards, 131 Wn. App. at 615-16. The State argued that it offered the testimony to explain why the detective started his investigation. Edwards, 131 Wn. App. at 614. Division Three determined that the investigation was not an issue in controversy; rather, the issue was who sold the drugs. Edwards, 131 Wn. App. at 614-15. Accordingly, it concluded that the detective's "state of mind simply is not relevant to whether [the defendant] committed the crimes charged." Edwards, 131 Wn. App. at 615.
Similar to Edwards, the reasons that Officer Buchholz investigated the door of the motor home were not relevant to whether the lock on the door was damaged. Officer Buchholz's statement that "[s]omeone had said during the time that [he] was there that the front door to the motor home had been ripped open . . ." was hearsay. 2 RP at 306. Nevertheless, this error does not require reversal unless it was prejudicial.
Jensen has failed to establish that Officer Buchholz's challenged testimony was prejudicial. First, immediately after defense counsel objected, the trial court instructed the jury that it was not allowing the testimony because it was either true or untrue; rather, it allowed the testimony to allow the jury to "understand why the officer did what he did." 2 RP at 306. And the jury is presumed to follow the trial court's instructions unless it is otherwise shown. Carnation Co. v. Hill, 115 Wn.2d 184, 187, 796 P.2d 416 (1990). Jensen has not established that the jury did not follow the trial court's instructions.
Moreover, Jensen has not established that Officer Buchholz's testimony was prejudicial based on the entire record. He attempts to argue that the State relied on the challenged hearsay statement in its closing, but this is not accurate. The State highlighted the evidence that the motor home door was standing open but the locking mechanism was locked, which Officer Buchholz's testimony supported, as well as the photograph of the motor home door that the State admitted without objection. In other words, Jensen has not established how Officer Buchholz's statement that a witness at the scene informed him that the front door of the motor home had been ripped open was prejudicial. Therefore, we hold that, although the trial court erred when it admitted the challenged testimony, the error was harmless and does not require reversal of Jensen's convictions.
B. Officer Rabideau's Testimony
Jensen contends that the trial court erroneously allowed hearsay testimony by Officer Rabideau. Officer Rabideau testified that while he was escorting Jensen to the x-ray room, Jensen said, "the methies had messed with the wrong man" and "after 35 years, I'm finally getting some respect." 2 RP at 301. Rabideau also stated that when he was transporting Jensen from the hospital to the police department, he repeated that "the methies had messed with the wrong old man." 2 RP at 302.
During pre-trial motions, the trial court ruled that Officer Rabideau's challenged statements were admissible to show Jensen's state of mind. But as Jensen correctly argues, his state of mind nearly two-and-a-half hours after the altercation when he made the statements to Officer Rabideau was not relevant. See State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306 (finding the defendant's state of mind at the time of the altercation, not her state of mind one and one half hours later, was relevant on the issue of guilt or innocence), review denied, 108 Wn.2d 1033 (1987); 5C Karl Tegland, Washington Practice: Evidence § 803.11 n. 11, at 37 (5th ed. 2007).
Therefore, the trial court erred when it ruled that Jensen's statements to Officer Rabideau were admissible to show state of mind. Nevertheless, we may uphold a trial court's evidentiary ruling on the grounds that the trial court used or on other grounds the record supports. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995). Here, Jensen's statements to Officer Rabideau were admissions by a party opponent.
Under ER 801(d)(2), a party's own admission offered against him at trial is not hearsay. Under this rule, the statement made is admissible if it "is in some way inconsistent with the party's position at trial." 5B Karl Tegland, Washington Practice: Evidence § 801.35, at 389 (5th ed. 2007). In State v. Barnett, 70 Wn.2d 420, 424, 423 P.2d 527 (1967), the court explained the admission of a party opponent exception to the hearsay rule:
Any voluntary statements by one suspected or accused of crime relating to facts or circumstances which indicate either a consciousness of guilt or which tend to show a connection with conditions or events tending to connect the accused with the crime charged are receivable in evidence as admissions against interest.
See also State v. Peterson, 2 Wn. App. 464, 468, 469 P.2d 980 (1970) ("The true test of its admissibility is whether the evidence is competent, relevant and material to any issue before the jury.")
Under this rule, Jensen's statements to Officer Rabideau were admissible. The testimony could support the inference that Jensen was the aggressor; he attacked Snapp to gain some sort of respect. Moreover, the statements are relevant to the issue in controversy — whether Jensen was guilty of the crimes charged. Therefore, we conclude that the trial court properly allowed Officer Rabideau to testify as to the statements Jensen made to him in the hospital.
C. Trudi Wade's Testimony
Jensen also contends that the trial court erred when it allowed admission of a small portion of Trudi's testimony. Specifically, Jensen challenges the following exchange:
Q. How would you characterize that relationship [between Jensen and Meyers]?
A. She had just met him, from what they both told me, she had — they just each other, and he had —
Mr. Copeland: I'm going to object, Your Honor, to hearsay.
The Court: I don't think it's offered for the proof. I'm going to overrule the objection.
Q. So you said that he —
A. That they — that he had feelings for her, but she didn't share them back.
2 RP at 147.
But as the State argues, Jensen fails to cite any authority to support his argument that the testimony above is inadmissible hearsay. He merely argues, without authority, that the State offered Trudi's testimony to "bolster [its] theory that Jensen confronted Snapp in pursuit of Meyer with the intent to get Meyer out of the motor home." Br. of Appellant at 23. We need not consider argument not supported by authority. Stewart v. State, 92 Wn.2d 285, 300, 597 P.2d 101 (1979); Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996), remanded on other grounds, 132 Wn.2d 193 (1997). Therefore, we need not decide whether the trial court erred when it allowed Trudi's challenged testimony.
In any event, even if we held that Trudi's challenged testimony was hearsay, admission of the testimony was harmless. The statement was cumulative because Charles made the same statement about the relationship between Jensen and Meyer during his testimony. And, the defense did not object to Charles's testimony. Thus, Trudi's challenged testimony was cumulative and therefore harmless beyond a reasonable doubt. See State v. Hochhalter, 131 Wn. App. 506, 517, 128 P.3d 104 (2006).
D. William White's Testimony
Jensen next contends that the trial court erred when it admitted hearsay statements that William White made during his testimony. He argues that the trial court erroneously found that White's challenged statements were statements against interest.
At trial, White testified that Jensen had applied for a job at Schuck's Automotive Parts, located near the Wal-Mart, before the altercation. He further testified that Jensen called him the day after the altercation to ask whether his application was still under consideration. The State then asked White if Jensen told him about the November 1 altercation. Defense counsel objected and the State responded that it was a "[s]tatement against interest." 2 RP at 169. The trial court overruled the objection and allowed White to state that Jensen said, "he was jumped in the Wal-Mart parking lot, and there was a stabbing, but he didn't say who got stabbed." 2 RP at 169-70.
The State now concedes that this was not a statement against interest under ER 804(b)(3). But, it argues that the trial court nevertheless properly admitted White's testimony because it was an admission of a party opponent. We agree. See Barnett, 70 Wn.2d at 424.
Again, an out-of-court statement is not hearsay if it is offered against a party and is the party's own statement. ER 801(d)(2); see Barnett, 70 Wn.2d at 424. Here, the State offered Jensen's statements to White to show that Jensen was involved in a stabbing. Moreover, the challenged statements were relevant. Therefore, we hold that the trial court properly allowed White's testimony as an admission of a party opponent.
III. Sufficient Findings from CrR 3.5 Hearing
Finally, Jensen argues that we must reverse his conviction because the trial court failed to enter written findings of facts and conclusions of law following the CrR 3.5 hearing and that its oral findings are insufficient for effective review on appeal. He implies that the oral findings are not sufficient because the record is unclear as to whether Jensen waived his Fifth Amendment rights before talking to detectives. But he does not actually challenge the trial court's conclusion that his statements were knowing and voluntary. Regardless, Jensen's argument is misguided and we hold that the trial court's oral findings are sufficient for appellate review.
CrR 3.5(c) requires a trial court to enter written findings of fact and conclusions of law. But failure to file written findings is harmless error if the trial court's oral opinion and the record of the hearing are so comprehensive and clear that written findings would be a mere formality. State v. Smith, 76 Wn. App. 9, 16, 882 P.2d 190 (1994), review denied, 126 Wn.2d 1003 (1995). A trial court's failure to enter written findings and conclusions typically requires remand for entry of findings and conclusions, not reversal. State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998).
At the CrR 3.5 hearing in this case, the State called five witnesses to testify: Detectives Deisher and Kazensky, and Officers Rabideau, Mike Watts, and Chris Angel. Jensen waived his right to testify at the hearing.
Officer Watts testified that he arrived at the Wal-Mart parking lot during the early morning hours of November 1 and contacted Jensen. Jensen told him that he was "the guy [he was] looking for." 1 RP at 51. Officer Watts asked Jensen what happened and Jensen made statements about the altercation. The parties agreed that Jensen was not in custody when he spoke to Officer Watts.
Officer Rabideau also testified about his interaction with Jensen on November 1. As they walked down the halls of the hospital together, Jensen made spontaneous statements to Officer Rabideau. Rabideau was not questioning Jensen at the time, and the parties agreed that Jensen's statements were not in response to any interrogation.
In addition, Detectives Deisher and Kazensky testified at the CrR 3.5 hearing. Around 10:00 AM on November 1, officers transported Jensen to the police station. They placed him in a holding cell while he waited to talk to the detectives. Detectives Deisher, Kazensky, and Hunta questioned Jensen in an interview room at the police department. Jensen was not handcuffed when the detectives spoke with him. When they began their interview, the detectives had not placed Jensen under arrest. But, the detectives also did not tell him he was free to leave.
Detective Deisher testified that he did not know whether the transporting officers placed Jensen in handcuffs when they brought him from St. John's Medical Center to the police station.
Jensen began talking to the detectives about the altercation. Detective Deisher told Jensen to "hold on one second" and proceeded to read him his Miranda warnings. 1 RP at 34. Jensen said he did not understand why the detective was giving him Miranda warnings. Detective Deisher informed Jensen that he was investigating the stabbing and trying to determine whether Jensen was the victim or the suspect. Jensen stated that he was the victim. Detective Deisher then asked Jensen if he understood his Miranda rights. Jensen responded that he understood his rights but that if there was a chance he was going to be arrested, he wanted to exercise his Fifth Amendment rights. The detectives immediately terminated the interview and took Jensen to a holding cell, stopping at the bathroom on the way. The detectives testified that Jensen was not free to leave at that point. But, after only a couple of minutes, Jensen re-initiated contact with the detectives and stated that he wanted to tell them his side of the story.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
As a result, the detectives took Jensen back to the interview room. Detective Deisher informed Jensen that he would talk to Jensen but not until he was certain that Jensen's statements were voluntary and free. He wanted to confirm that Jensen understood he was waiving his rights. According to the detectives, Jensen then stated he was retracting his Fifth Amendment rights and that he was voluntarily speaking to the detectives. Detective Deisher read Jensen his Miranda warnings again and asked if he understood his rights. Jensen confirmed that he understood his rights and that he was willing to talk to the detectives.
The detectives proceeded to question Jensen about the altercation. Never during that interview did Jensen invoke his right to remain silent or obtain counsel. The detectives also testified that they did not use any threat of force or coercion during the interview. In its oral ruling, the trial court found that (1) none of the facts were disputed; (2) Jensen was in holding; (3) he was advised of his rights; (4) he told the officers that he did not want to talk; (5) the officers put him back in holding; (6) he re-contacted the officers because he wanted to talk; (7) he wanted to tell the officers his story, which is why he re-initiated contact; and (8) the officers again advised him of his Miranda rights before resuming the interview. The trial court then concluded that (1) Jensen clearly understood his Miranda rights; (2) he clearly wanted to tell the officers a story; and (3) his statements were voluntary, and, therefore, admissible. This ruling is sufficient to warrant appellate review. Thus, we hold that the trial court's failure to enter written findings of fact and conclusions of law was harmless error. State v. Miller, 92 Wn. App. 693, 703-04, 964 P.2d 1196 (1998), review denied, 137 Wn.2d 1023 (1999).
IV. Community Placement and Calculation of Offender Score
On cross-appeal, the State argues that the trial court erroneously failed to include one point for community placement when calculating Jensen's placement score, basing its argument on State v. Jones. Jensen concedes that in light of Jones, we should remand for resentencing because the record establishes that Jensen was in community custody at the time he committed the offenses.
In State v. Jones, the Washington State Supreme Court held that "the community placement determination — an examination strictly limited to a review and interpretation of documents (such as the prior judgment and sentence) that are part of the judicial record created by a prior conviction — is an issue of law that is properly entrusted to the sentencing court and falls within the prior conviction exception." Jones, 159 Wn.2d at 239.
Here, the trial court found that Jensen was in community custody at the time he committed the offenses for which he was being sentenced. But the trial court also stated that under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), it believed that the community custody had to be pleaded and proved to a jury. The court concluded that community custody was not pleaded and proved to a jury and, therefore, it did not add an extra point to Jensen's offender score. Thus, the parties are correct and under Jones, we remand to recalculate Jensen's offender score.
STATEMENT OF ADDITIONAL GROUNDS
Although Jensen is not required, under the rules of appellate procedure, to cite to the record or authority in his SAG, he still has an obligation to "inform the court of the nature and occurrence of [the] alleged errors," and we are not required to search the record to find support for the defendant's claims. RAP 10.10(c). We cannot address matters outside the record on direct appeal. State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995). And we cannot review matters of credibility and weight. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Many of Jensen's enumerated grounds are outside the record and thus insufficient to allow review. In addition, he raises issues related to matters of credibility and weight. Therefore, we need not reach them. But we will address the remaining nine grounds in turn.
The issues that Jensen raises which are outside the record, and thus cannot be decided by this court on appeal, include: (1) the State did not timely provide intelligible discovery; (2) the State failed to provide defense with a complete list of witnesses, their statements, and/or expected line of questioning or testimony; (3) defense counsel refused to call certain witnesses; (4) defense counsel failed to collect and admit certain alleged evidence; (5) defense counsel provided Jensen with allegedly false and conflicting information about his case; (6) defense counsel denied Jensen the right to question witnesses and defense counsel ignored questions Jensen directed him to ask during testimony; (7) Jensen was denied an unbiased and impartial jury; and (8) Jensen was denied credit for 40 days of time spent in Cowlitz County Jail.
The issues that Jensen raises which are matters of credibility and weight, and thus cannot be decided by this court on appeal, include: (1) Jensen was charged and held in custody based on false and misleading statements in the information; (2) Evidence and testimony were not based on fact, consistent, or conclusive.
I. Right to be Present in the Courtroom
Jensen first complains that during all the pre-trial hearings, the trial court denied his "right to participate, and be confrounted [sic] by his accusers." SAG at 1. He suspects that proceedings occurred when he was not present in the courtroom. He also explains that the trial court refused to accommodate his hearing impairment. But these arguments lack merit.
Under the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, a criminal defendant has a constitutional right to be present during all critical stages of criminal proceedings. United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985). Fundamental to this notion is that a defendant has the right to be present when evidence is presented. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 483, 965 P.2d 593 (1998). "A defendant has the right to be present at proceedings where his or her presence has a reasonably substantial relation `to the fulness of his opportunity to defendant against the charge.'" Pirtle, 136 Wn.2d at 483 (quoting In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994)) (internal quotations omitted). But the Washington Supreme Court has held that a defendant "does not have a right to be present during in-chambers or bench conferences between the court and counsel on legal matters." Lord, 123 Wn.2d at 306. Accordingly, a defendant does not have the right to be present during in-chambers or bench conferences between the court and counsel on legal matters where those matters do not require resolution of disputed facts. Lord, 123 Wn.2d at 306.
Here, Jensen fails to highlight specific instances where he believes the court addressed matters outside of his presence. He simply argues that he was not aware that the proceedings began until officers brought him into the courtroom and the trial court addressed him. A review of the transcripts reveals that the trial court rarely convened outside of Jensen's presence during the course of his proceedings. Jensen was not present for three pre-trial readiness hearings. During these hearings, Jensen's counsel, the State, and the trial court discussed scheduling pre-trial witness interviews and scheduling trial. Neither party nor the trial court discussed any disputed facts or evidence. The trial court conducted the hearings simply to determine when it could appropriately schedule trial. Thus, there is no evidence in the record that Jensen was not present for any critical stage of his prosecution. Nevertheless, Jensen also argues that due to his hearing impairment, he was "unable to understand or derive any meaningful diolog [sic] from the court proceedings leading up to his trial." SAG at 2. But the record shows that the trial court went out of its way to ensure that Jensen heard and understood all of the proceedings in which he was present. Not only did the court provide Jensen with a hearing device, it also made several announcements in court, instructing participants to speak loudly so that Jensen could hear the proceedings.
Because the trial court ensured that (1) Jensen heard and understood the proceedings and (2) Jensen was present at all critical stages of the procedures, we hold that it did not deny Jensen the right to be present.
II. Suppression of Prior Misconduct
Next, Jensen complains that the trial court erred when it suppressed information and references to witnesses' alleged drug usage, meanwhile allowing the same witnesses to refer to him as "Huffer" while testifying. SAG at 13. But this complaint is not factually accurate and lacks merit. Contrary to Jensen's contention, the State elicited testimony from at least two witnesses on direct examination about their use of heroin within 24 hours of the altercation. Moreover, the trial court ruled that both the State and the defense could ask whether the witnesses were under the influence of drugs at the time of the altercation. But the trial court properly excluded allegations of the witnesses' prior alleged drug dealings.
In the impeachment context, evidence of a witness's prior misconduct is only admissible if it is probative of the witness's character for truthfulness or untruthfulness under ER 608(b). State v. O'Connor, 155 Wn.2d 335, 349, 119 P.3d 806 (2005). Drug possession and use are not probative of truthfulness because they have little to do with a witness's credibility. See O'Connor, 155 Wn.2d at 350-51. Thus, the trial court properly determined that alleged evidence of the witness's prior drug use was not admissible. Furthermore, the trial court also specifically prohibited evidence of Jensen's prior convictions for unlawful inhalation of fumes. And finally, although the trial court allowed witnesses to refer to Jensen as "Huffer," it did not allow any testimony as to why that was his nickname. 1 RP at 69. In short, there was no error.
ER 608(b) provides in pertinent part:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness. . . .
III. Speedy Trial
Jensen also contends that the trial court violated his right to speedy trial. Jensen was arraigned on November 8, 2005. On January 3, 2006, one day before the original trial date, the State and defense jointly moved for a continuance. The trial court granted the continuance and reset trial for January 9, 2006. But on January 5, 2006, the State moved for a second continuance. Although defense counsel stated that Jensen was not waiving his right to speedy trial, he agreed to a continuance. The trial court found good cause and continued the trial to February 1, 2006.
The right to speedy trial attaches, under both the federal and state constitutions, with the formal filing of an information or indictment. State v. Chavez, 111 Wn.2d 548, 558, 761 P.2d 607 (1988). CrR 3.3(b) provides that a criminal defendant detained in jail must be brought to trial within 60 days. But if any period of time is excluded from the speedy trial period under CrR 3.3(e), the speedy trial period extends to at least 30 days after the end of the excluded period. CrR 3.3(b)(5). Excluded periods under CrR 3.3(e) include continuances and delays due to unavoidable or unforeseen circumstances that are beyond the control of the court or of the parties. CrR 3.3(e)(3), (8). A court may grant a continuance on motion of the court or party. CrR 3.3(f)(2).
"[T]he decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court." State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). An appellate court "will not disturb the trial court's decision unless the appellant or petitioner makes `a clear showing . . . [that the trial court's] discretion [is] manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" Downing, 151 Wn.2d at 272 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Here, the trial court granted the State's motion to continue the trial from January 9, 2006 to February 1, 2006. It found good cause to allow both the State and defense to adequately prepare for trial. Therefore, the speedy trial period ended 30 days later than February 1, 2006. CrR 3.3(b)(5). Thus, Jensen's February 1 trial was within the speedy trial period.
IV. No Duty to Retreat Instruction
Jensen also contends that the trial court erred in failing to instruct the jury that he had no duty to retreat. But, the trial court did include a "No Duty to Retreat" instruction. SAG at 21; CP at 86 (Jury instruction no. 22). Therefore, Jensen's argument has no merit.
V. Deadly Weapon
Jensen next contends that the trial court erred in finding that he was armed with a deadly weapon. He is apparently arguing that there was insufficient evidence to support the deadly weapon enhancement to his convictions. But once again, this argument has no merit.
"The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). When a party challenges the sufficiency of the evidence in a criminal case, we draw all reasonable inferences from the evidence in the State's favor and interpret it most strongly against the defendant. Salinas, 119 Wn.2d at 201. Credibility determinations are for the trier of fact and are not subject to review on appeal. Camarillo, 115 Wn.2d at 71.
Here, Snapp was stabbed in the back and, later that day, officers found a knife on Jensen's person. There is ample testimony on the record from various witnesses that Jensen stabbed Snapp in the back. Although part of Jensen's defense theory was that the knife found on his person could not be connected to Snapp's stabbing, a jury did not believe him. And again, credibility determinations are for the trier of fact and are not subject to review on appeal. Camarillo, 115 Wn.2d at 71. Sufficient evidence exists such that a reasonable juror could conclude that the State proved beyond a reasonable doubt that Jensen was armed with a deadly weapon.
VI. Restitution Amount
In addition, Jensen complains that the trial court erred in determining that he owes $30,000 plus 12 percent interest per year in restitution. He contends that the trial court did not consider his ability to pay. But Jensen's argument is misguided. We review a challenge to the restitution amount imposed for abuse of discretion. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991).
The defendant's ability to pay applies to setting his minimum monthly payment, but not to setting the total restitution amount. RCW 9.94A.753(1); State v. Huddleston, 80 Wn. App. 916, 928-29, 912 P.2d 1068, review denied, 130 Wn.2d 1008 (1996); see also RCW 9.94A.753(4) (permitting the trial court to modify the amount, terms, and conditions of restitution, but the total amount of restitution ordered may not be reduced based on the offender's inability to pay). Therefore, the trial court appropriately refused to consider Jensen's ability to pay when setting the total amount of restitution owed. It did not abuse its discretion.
VII. Ineffective Assistance of Counsel
Next, Jensen complains that he was denied his right to the effective assistance of counsel for several grounds, including (1) denial of his right to be present at trial; (2) denial of admittance of witness's prior misconduct; (3) denial of his right to speedy trial; and (4) failure to propose a duty to retreat instruction. We review an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). To prove ineffective assistance of counsel, a defendant must show deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). "If either part of the test is not satisfied, the inquiry need go no further." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). As discussed above, Jensen's arguments supporting his ineffective assistance of counsel claim lack merit and therefore are not grounds to establish ineffective assistance of counsel.
Additionally, Jensen complains that he was denied his right to effective assistance of counsel for various other issues of credibility and/or issues outside the record. If a defendant wishes to bring a claim of ineffective assistance based on matters outside the appellate record, he must do so by means of a personal restraint petition. See McFarland, 127 Wn.2d at 338 n. 5 ("[A] personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record."); RAP 16.3.
VIII. Cross Appeal Complies With Rules of Appellate Procedure
Jensen next contends that we should dismiss the State's cross appeal because it failed to timely file its brief within the time permitted under the RAPs. But Jensen's argument is, once again, misguided. The State filed a motion for extension of time to file its brief and our court clerk granted that motion. The State timely filed its brief within the period of time our clerk granted. See RAP 10.2(c), 18.8(a). Jensen's argument has no merit.
IX. Requested Documents for Appeal
Jensen also complains that the State failed to provide the "requwsted [sic] documents and materials noted in [his] `Motion and Declaration for order allowing the defendnat [sic] to seek review . . . and provide attorney for appeal." SAG at 38. We reject this argument for various reasons.
First, the record does not include Jensen's motion that he refers to in his argument. Although there are several letters in the record that Jensen sent to this court, the record does not seem to include any actual motions. Contrary to Jensen's assertion, the State designated and provided transcripts of all the pre-trial hearings, including transcripts for his arraignment and probable cause hearing. While it is true that the record does not include transcripts from voir dire or the "[p]re-arrest questioning" of Jensen at the Longview Police Department on November 1, 2005, it is not clear from the record that Jensen requested those transcripts. See SAG at 38.
An appellant has the burden of providing adequate record to review the issues raised. RAP 9.2(a). Jury selection and opening statements are not normally included in the record on appeal, although they may be made so upon request and by the trial court order. RAP 9.2(b). A party may serve and file objections to, and propose amendments to, a verbatim report of proceedings within 10 days of receiving of the report of proceedings or receiving the notice of filing of the report of proceedings. RAP 9.5(c). Here, the record includes no evidence that Jensen timely objected to the verbatim report of proceedings filed in this case, and we reject his request on this basis.
In conclusion, we affirm Jensen's conviction, but we vacate the sentence and remand for resentencing, consistent with this opinion.
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.
Hunt, J., Penoyar, J., concur.