State of Washington v. Roy Brent Boswell, Jr. ( 2021 )

FILED
AUGUST 24, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 37984-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ROY BRENT BOSWELL, JR., )
)
Appellant. )
LAWRENCE-BERREY, J. — Roy Boswell appeals after being convicted of unlawful
possession of a firearm in the second degree and two counts of second degree assault. He
raises several argument that we reject. We affirm his convictions but remand for
resentencing in light of State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).
FACTS
Kristin Power made a call to 911 after being attacked from behind by Roy
Boswell. She had been out with her youngest son and her friend, Ryan Buie, at the time
when Boswell pulled up in a car. Boswell and Power had dated for a time in 2017 before
recently breaking up.
Patrol officer Matthew Arasim arrived approximately 15 minutes after the call. He
saw a red Hyundai Sonata parked in the alley behind Power’s apartment building. There
No. 37984-1-III
State v. Boswell
was a loaded firearm under the left front tire of the Hyundai. The firearm was tested and
functioned properly.
Power’s jaw was broken from the assault and she had to go to the emergency room
to get her jaw wired shut. While there, Power was asked routine questions about what
happened from the doctor. She said she was punched on the right side of her face four
times and threatened with a weapon.
The day after the assault, Power filed a petition for a protection order. In the
petition, Power described Boswell punching her in the face repeatedly and pulling a gun
on her friend Buie before running away and leaving his car. Power signed the petition
under penalty of perjury.
The State charged Boswell with unlawful possession of a firearm in the second
degree and two counts of assault in the second degree, one count for punching Power in
the face and breaking her jaw and the other count for pointing a firearm at Buie. In
addition, the State alleged a firearm enhancement and an aggravator for the charge related
to Power and a firearm enhancement for the charge related to Buie. The State
subsequently added a bail jumping charge after Boswell absconded to California.
While awaiting trial, Boswell made a number of jail calls to Power and to his
mother. In these calls, he told Power he was “not taking that gun because that shit was
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not on me when I got caught.” Ex. 98. He also told his mother he left the gun in the car.
Power told Boswell she hoped he would beat it, referring to the charges.
At trial, Power and Buie denied that Boswell was the attacker. The State offered
testimony from Officer Robert Hannity as impeachment evidence. Officer Hannity
testified that Buie and Power both told him that Boswell had punched Power four times
and had pulled a gun on Buie.
The State also had Power’s petition for a protection order admitted as
impeachment evidence. Boswell objected and argued that the petition was not relevant
and cumulative. The trial court overruled the objection and noted that the petition
contained key evidence pertinent to the charges.
After the State concluded its case, Boswell moved to dismiss the second degree
assault charge related to Buie. He argued the State presented insufficient evidence to
sustain the charge because Buie denied he was assaulted or that he saw a weapon.
Boswell argued that Power’s petition had been admitted only for impeachment purposes.
The State argued there had been no limiting instruction and the petition was signed under
penalty of perjury so it was not hearsay under ER 801(d)(1). The trial court denied
Boswell’s motion to dismiss and noted that the petition was a sworn statement and thus
admissible as substantive evidence.
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The parties submitted the case to the jury. It returned guilty verdicts on all counts
and found that the State had proved the firearm enhancements and an aggravator beyond a
reasonable doubt. The court sentenced Boswell to 129 months in prison, which included
72 months for the firearm enhancements. The sentence was based on a prior offense
score of 3, comprised of three King County convictions. One was a 2016 unlawful
possession of controlled substance (UPCS) conviction, another was a 2016 attempted
unlawful possession of a firearm (UPFA) in the second degree conviction, and the other
was a 2017 UPFA in the second degree conviction. The court imposed a mandatory $500
crime victim assessment fee, a $200 criminal filing fee, and a community custody
supervision fee.
Boswell timely appeals.
ANALYSIS
PETITION AS SUBSTANTIVE EVIDENCE
Boswell contends the trial court abused its discretion in allowing Power’s petition
for an order of protection to be admitted as substantive evidence under ER 801(d)(1),
prior statement of witness. He argues the State did not show that the petition had a
minimum level of trustworthiness. We decline to address this argument.
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At trial, Boswell objected to admission of Power’s petition as substantive evidence
on two bases—lack of relevancy and cumulative. He did not argue that the petition
lacked a minimal level of trustworthiness.
Generally, this court does not review an issue raised for the first time on appeal.
RAP 2.5(a). There are three exceptions to this general rule: (1) the trial court lacked
jurisdiction, (2) there was a failure to establish facts on which relief could be granted, or
(3) there was a manifest error affecting a constitutional right. RAP 2.5(a)(1)-(3).
Because the first two are clearly not at issue, we focus only on the third exception.
Under this exception, a defendant raising the error for the first time bears the
burden of showing “(1) the error is manifest and (2) the error is truly of constitutional
dimension.” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). Boswell has
failed to make such a showing here. Admission of hearsay sometimes implicates the
constitutional confrontation clause rights of a defendant. State v. Hieb, 107 Wn.2d 97,
105-06, 727 P.2d 239 (1986). But because Power was a witness at the trial and subject to
cross-examination, the confrontation clause rights of Boswell were not violated. See
State v. Makela, 66 Wn. App. 164, 177, 831 P.2d 1109 (1992). Because Boswell cannot
show that the unpreserved issue he seeks to raise qualifies as an exception under
RAP 2.5(a), we decline to review the unpreserved claim of error.
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INEFFECTIVE ASSISTANCE OF COUNSEL
Boswell contends his trial counsel was ineffective. He argues that his attorney
performed deficiently when he failed to request a limiting instruction be given advising
the jury that Power’s petition was admitted only for impeachment. We disagree.
A criminal defendant is guaranteed effective assistance of counsel. WASH. CONST.
art. I, § 22; U.S. CONST. amend. VI. Counsel is deemed ineffective if counsel’s
representation was deficient and there was resulting prejudice stemming from this
deficiency. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Boswell argues that a limiting instruction would have been both appropriate and
necessary for the jury’s consideration of Power’s petition. This argument shows a
misunderstanding of hearsay. A prior inconsistent statement admitted under ER 613
solely for the purpose of impeaching the credibility of a witness is not substantive
evidence and a limiting instruction is appropriate. However, statements admitted under
ER 801(d)(1)(i) (“given under oath subject to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition”) are not hearsay and are thus admissible as
substantive evidence. Power’s petition was given under oath subject to the penalty of
perjury and was therefore admissible as substantive evidence.
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A limiting instruction would be neither required nor appropriate here where the
statement was admissible as substantive evidence. Defense counsel cannot be deficient
for failing to request an inappropriate limiting instruction. See State v. Bradley, 96 Wn.
App. 678, 685, 980 P.2d 235 (1999), aff’d, 141 Wn.2d 731, 10 P.3d 358 (2000). We
reject Boswell’s ineffective assistance of counsel argument.
SUFFICIENCY OF THE EVIDENCE
Boswell contends there was insufficient evidence to support the second degree
assault conviction related to Buie and the two firearm enhancements. He argues the
evidence does not show beyond a reasonable doubt that he was armed with a firearm
during the confrontation with Power and Buie. We disagree.
Due process requires that the State prove each element of the crime beyond a
reasonable doubt. O’Hara, 167 Wn.2d at 105. This standard also applies to any charged
enhancement. See State v. Dyson, 189 Wn. App. 215, 225, 360 P.3d 25 (2015) (Any fact
that, by law, increases the penalty for a crime is an element that must be submitted to the
jury and found beyond a reasonable doubt.). 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). A claim of insufficiency admits
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the truth of all of the State’s evidence. Id. All reasonable inferences must be drawn in
favor of the State and interpreted most strongly against the defendant. Id.Boswell’s argument presupposes that Power’s petition was not admissible as
substantive evidence. As noted above, he is incorrect. Power’s petition names Boswell
as her attacker, describes the attack against her, and describes him pointing a gun and
threatening Buie. This evidence sufficiently supports the second degree assault
conviction related to Buie and both firearm enhancements. Yet additional evidence was
admitted at trial supporting these verdicts.
The State admitted Boswell’s jail telephone calls in which he discussed getting rid
of the gun by his car. The State also showed a video of Power’s attacker pointing
something at Buie, causing him to back away. We conclude the State presented more
than sufficient evidence to sustain the challenged conviction and enhancements.
LEGAL FINANCIAL OBLIGATIONS
Boswell contends the trial court erred in imposing certain legal financial
obligations (LFOs) and interest on his nonrestitution LFOs. He argues the $200 criminal
filing fee and the supervision fee are inappropriate because he is indigent. The State does
not object to remanding for the trial court to strike the $200 criminal filing fee and the
community supervision fee, but correctly notes that the interest provision of the judgment
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explicitly exempts interest on nonrestitution obligations, consistent with RCW 10.82.090.
We accept the State’s concessions and remand for the trial court to strike those two
fees. See State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018) (criminal filing fee
not imposable against indigent defendant); State v. Dillon, 12 Wn. App. 2d 133, 152, 456
P.3d 1199 (waivable community supervision fee struck where the record shows trial court
intended to strike nonmandatory costs and fees), review denied, 195 Wn.2d 1022, 464
P.3d 198 (2020).
OFFENDER SCORE UNDER BLAKE
The parties addressed the recent case of State v. Blake, 197 Wn.2d 170, 481 P.3d
521 (2021) in supplemental briefing. There, the Supreme Court declared Washington’s
UPCS statute unconstitutional.
Boswell requests that we remand for the trial court to vacate his 2016 UPCS King
County conviction and direct the trial court not to count that conviction and a 2004 UPCS
California conviction in his offender score. The State responds that the Pierce County
Superior Court lacks the authority to vacate a King County Superior Court judgment,
agrees that the 2016 UPCS conviction should not count in the offender score, and asserts
that the 2004 UPCS California conviction was not counted because it had washed out. It
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further responds that the 2016 UPF A second degree conviction should not have counted
because it was an attempt and thus not a felony.
Our review of the record confirms the State's positions. And while the Pierce
County Superior Court lacks the authority to vacate the 2016 King County Superior Court
UPCS conviction, we direct it not to count that conviction in Boswell's amended offender
score and to enter a notation in the amended judgment explaining that it was not counted
in light of Blake.
In conclusion, we remand for the trial court to resentence Boswell with a new
offender score. Assuming no intervening convictions, we agree with the State that
Boswell's prior offense score should be a 1, comprised only of the 2017 UPF A in the
second degree conviction.
Affirm the convictions but remand for resentencing.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
..
2 . .,_ ' c..::r:
Pennell, C.J. Staab, J.
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