State Of Washington v. Donna N. Jesmer ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
November 14, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49196-6-II
Respondent,
v.
DONNA NOELLE JESMER, aka DONNA UNPUBLISHED OPINION
NOELLE COX, aka DONNA NOELLE
NICHOLSON,
Appellant.
SUTTON, J. — Donna N. Jesmer appeals her convictions for first degree robbery, second
degree assault, and felony harassment. Jesmer argues that the trial court erred in refusing to give
a jury instruction explaining the legal effect of a quitclaim deed. She further argues that the trial
court did not properly instruct the jury on how to deliberate and did not properly admonish the jury
to not discuss the case during recesses.
We hold that because Jesmer was able to fully argue her theory of the case without the
proposed quitclaim deed instruction, the trial court did not abuse its discretion by denying the
proposed instruction. We also hold that because the trial court properly instructed the jury on how
it should deliberate and properly admonished the jury to not discuss the case during recesses, the
trial court did not deprive Jesmer of a unanimous verdict. We affirm the convictions.
FACTS
In October of 2008, Jesmer’s mother, Sandra Rodewald, moved to El Salvador for a
business opportunity. In December of that year, Jesmer moved into Rodewald’s home. Both
No. 49196-6-II
Rodewald and Jesmer testified at trial that at some point between the end of 2008 and October
2013, Rodewald executed a quitclaim deed in Jesmer’s name. Jesmer never recorded this deed.
In late 2013, Rodewald moved back into the home and significant tension between Rodewald and
Jesmer followed. On January 26, 2016, an altercation broke out between the two and Jesmer “took
off.” Verbatim Report of Proceedings (VRP) at 77.
On January 29th, Jesmer returned to the home with her son. Rodewald told the two that
they were not supposed to be there, and they responded that they were “coming in to get [their]
things.” VRP at 82. Rodewald testified that Jesmer assaulted her, without provocation, and stole
some of Rodewald’s personal property from the home. Jesmer denied taking any property that
was not hers. Jesmer admitted that she assaulted Rodewald but claimed to have done so to defend
herself and her son.
At trial, Jesmer’s counsel proposed a jury instruction detailing the legal effect of a
quitclaim deed.1 Jesmer’s counsel explained that it would bolster Jesmer’s theory that Rodewald
1
The proposed quitclaim jury instruction mirrored the language in RCW 64.04.050:
Quitclaim deeds may be in substance in the following form:
The grantor (here insert the name or names and place of residence), for and in consideration
of (here insert consideration) conveys and quitclaims to (here insert grantee's name or
names) all interest in the following described real estate (here insert description), situated
in the county of . . . . . ., state of Washington. Dated this . . . . day of . . . . . ., [year] . . . .
Every deed in substance in the above form, when otherwise duly executed, shall be
deemed and held a good and sufficient conveyance, release and quitclaim to the
grantee, his or her heirs and assigns in fee of all the then existing legal and equitable
rights of the grantor in the premises therein described, but shall not extend to the after
acquired title unless words are added expressing such intention.
Clerk’s Papers at 39; RCW 64.04.050
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had motive to fabricate her testimony because she was worried that Jesmer would claim ownership
of the house. The trial court denied the proposed instruction because it determined that (1) the
deed was not meant to permanently transfer title, (2) the instruction would be unhelpful and
confuse the jury, (3) a quitclaim deed was not an element of any crime charged, (4) it may lead to
a slippery slope of more jury instructions, (5) Jesmer could still argue Rodewald’s motive, and (6)
because both Jesmer and Rodewald testified to the execution of the quitclaim deed, it was not an
issue in dispute. Jesmer’s counsel then further stated that the quitclaim deed was also relevant to
the charges of second degree assault and felony harassment because the proposed jury instructions
regarding self-defense and stand your ground could inform the jury that Jesmer had a right to be
in the house. The trial court did instruct the jury on self-defense and stand your ground. See
Clerk’s Papers (CP) at 71-73.
The jury found Jesmer guilty of first degree robbery, second degree assault and felony
harassment.2 It also found domestic violence by special verdict on all counts. The trial court
imposed a standard range sentence. Jesmer appeals her convictions.
ANALYSIS
I. PROPOSED QUITCLAIM DEED JURY INSTRUCTION
A. STANDARD OF REVIEW
We review alleged errors of law in a trial court's jury instructions de novo. Fergen v.
Sestero, 182 Wash. 2d 794, 803, 346 P.3d 708 (2015). However, absent a legal error, we review a
trial court's decision regarding the specific language of an instruction or whether to give an
2
Jesmer was acquitted of first degree theft, first degree trafficking in stolen property, and fourth
degree assault.
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instruction for an abuse of discretion. State v. Jensen, 149 Wash. App. 393, 399, 203 P.3d 393
(2009). An abuse of discretion exists when a trial court's exercise of its discretion is based upon
untenable grounds or reasons; a decision is based on untenable reasons if it is based on an incorrect
standard. State v. Hamilton, 196 Wash. App. 461, 476 n.8, 383 P.3d 1062 (2016), review denied,
187 Wash. 2d 1026 (2017).
“‘Jury instructions are sufficient when they allow counsel to argue their theory of the case,
are not misleading, and when read as a whole properly inform the trier of fact of the applicable
law.’” State v. Aguirre, 168 Wash. 2d 350, 363–64, 229 P.3d 669 (2010) (internal quotation marks
omitted) (quoting Keller v. City of Spokane, 146 Wash. 2d 237, 249, 44 P.3d 845 (2002) (emphasis
added). A defendant is entitled to have his or her theory of the case submitted to the jury under
appropriate instructions when substantial evidence in the record supports that theory. State v.
Harvill, 169 Wash. 2d 254, 259, 234 P.3d 1166 (2010). When determining if the evidence at trial
was sufficient to support the giving of an instruction, we view the supporting evidence in the light
most favorable to the party that requested the instruction. State v. Fernandez-Medina, 141 Wash. 2d
448, 455–56, 6 P.3d 1150 (2000).
B. FIRST DEGREE ROBBERY
On appeal, Jesmer argues that the proposed quitclaim deed instruction would have
exculpated her from the first degree robbery charge because “she only took what was already hers.”
Br. of Appellant at 16. Jury instructions need to be relevant to the evidence presented in order to
be given. State v. Linehan, 147 Wash. 2d 638, 643, 56 P.3d 542 (2002). To convict Jesmer of first
degree robbery, the State needed to prove that the defendant unlawfully took “personal property”
from Rodewald. CP at 62. The proposed quitclaim deed instruction explained that a grantor
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transfers their interest in real property and does not refer to “personal property.” CP at 39. Because
the instruction had no relation to the crime charged of first degree robbery, it was irrelevant and
did not need to be given.
Thus, we hold that the trial court did not abuse its discretion in refusing to give the proposed
quitclaim deed instruction as it pertained to the charge of first degree robbery.
C. SECOND DEGREE ASSAULT AND FELONY HARASSMENT
Jesmer also argues that the proposed quitclaim deed instruction would have bolstered her
defense against the second degree assault and felony harassment charges and shown the jury that
Rodewald had a motive to lie. The jury was instructed on self-defense and stand your ground
related to the second degree assault and felony harassment charges.
The “stand your ground” jury instruction stated,
It is lawful for a person who is in a place where that person has a right to be and
who has reasonable grounds for believing that he or she is being attacked to stand
his or her ground against such attack by the use of lawful force.
CP at 73. Jesmer argues that the proposed quitclaim deed instruction “would have assisted the
jury in assessing Jesmer’s defensive theory that she had the right to stand her ground and use lawful
force to protect herself against her mother’s physical and verbal attacks at the house” because it
was Jesmer’s home. Br. of Appellant at 22. During closing, Jesmer’s counsel argued that she
owned the home and that Rodewald had a motive to lie. Jesmer was able to argue her theory of
the case because she put forth all of her arguments at closing. Because Jesmer was allowed to
argue her theory of the case to the jury, we hold that the trial court did not abuse its discretion in
refusing to instruct the jury on the effect of a quitclaim deed.
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II. UNANIMOUS VERDICT
Jesmer next argues that the trial court failed to instruct the jury to only deliberate when all
twelve jury members were present and failed to properly admonish the jury during recesses; thus,
she claims, that she was denied her constitutional right to a unanimous jury and a fair trial.
Specifically, Jesmer states that “[m]issing, however, are any written or oral instructions informing
the jury of its constitutional duty to deliberate only when all 12 jurors are present. Nor did the
court ever admonish jurors [that] they were precluded from discussing the case with anyone during
any recess.” Br. of Appellant at 28. Although Jesmer did not request such an instruction nor object
at trial, she argues that these errors are manifest errors affecting a constitutional right and may be
raised for the first time on appeal.3 We disagree and hold that the trial court properly instructed
the jury on how to deliberate and properly admonished the jury to not discuss the case during
recesses.
An appellate court may refuse to review any claim of error which was not raised in the trial
court. RAP 2.5(a). However, a party may raise a “manifest error affecting a constitutional right”
for the first time on appeal. RAP 2.5(a)(3). We review alleged errors affecting jury unanimity as
a manifest error affecting a constitutional right. See State v. Lamar, 180 Wash. 2d 576, 586, 327 P.3d
46 (2014).
3
Alternatively, she argues that these are “structural errors.” Br. of Appellant at 31. However,
because we determine that the trial court did not err in its instructions or its admonishments to the
jury, we do not consider Jesmer’s structural error argument.
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Jesmer relies on Lamar but misconstrues the holding. In Lamar, a sick juror was replaced
by an alternate during deliberations. Lamar, 180 Wash. 2d at 580. When the sick juror was excused,
the instruction on unanimity was not repeated and instead the remaining jurors were affirmatively
told to bring the alternate “up to speed” on the deliberations that had already taken place and then
continue deliberations from that point. Lamar, 180 Wash. 2d at 582. “This instruction affirmatively
told the reconstituted jury not to deliberate together as is constitutionally required.” Lamar, 180
Wash. 2d at 582. Our Supreme Court held that the failure to repeat the unanimity instruction after
the alternate juror was seated deprived the defendant of a unanimous jury because the new juror
would not have taken part in some of the deliberative process. Lamar, 180 Wash. 2d at 586.
Here, unlike in Lamar, no alternate juror deliberated and all of the jurors received the same
admonishments and instructions. Further, the trial court gave identical instructions to the jury at
the beginning of the deliberations as the Supreme Court implicitly approved of in Lamar.4
Jesmer cites no case law holding that there is a constitutional requirement that the
instruction requiring the jurors to deliberate together needs to be given and, further, Jesmer did not
4
The instruction requiring that the jurors deliberate together states,
As jurors, you have a duty to discuss the case with one another and to deliberate in
an effort to reach a unanimous verdict. Each of you must decide the case for
yourself, but only after you consider the evidence impartially with your fellow
jurors. During your deliberations, you should not hesitate to re-examine your own
views and to change your opinion based upon further review of the evidence and
these instructions. You should not, however, surrender your honest belief about the
value or significance of evidence solely because of the opinions of your fellow
jurors. Nor should you change your mind just for the purpose of reaching a verdict.
CP at 49; Lamar, 180 Wash. 2d at 580.
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propose such an instruction at trial.5 “[W]here no authorities are cited in support of a proposition,
the court is not required to search out authorities, but may assume that counsel, after diligent
search, has found none.” DeHeer v. Seattle Post-Intelligencer, 60 Wash. 2d 122, 126, 372 P.2d 193
(1962), RAP 10.3(a)(6). Because Jesmer cites no authority that informs this court whether or not
the failure to give duty to deliberate instructions is error, we hold that the trial court properly
instructed and admonished the jury.
CONCLUSION
We hold that because Jesmer was able to fully argue her theory of the case, without the
proposed quitclaim deed instruction, the trial court did not abuse its discretion in not giving the
instruction. We further hold, that because the trial court properly instructed the jury on how it
5
Jesmer cites only to the Washington Supreme Court Committee on Jury Instructions’ (WPIC)
recommendation as the authority supporting her argument. She argues that “[d]espite the
committee’s recommendation to give the full WPIC 4.61 before every recess, it was never
provided during Jesmer’s three day trial.” Br. of Appellant at 27. However, Jesmer then details
that the trial court did in fact admonish the jury in six out of the eleven recesses during trial. In
each of these admonishments, the trial court instructed the jury not to discuss the case with anyone.
See VRP at 264. Because we presume that jurors follow the trial court’s instructions, absent
evidence to the contrary, we conclude that the trial court did not err. See State v. Dye, 178 Wash. 2d
541, 556, 309 P.3d 1192 (2013).
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should deliberate and properly admonished it not to discuss the case during recesses, the trial court
did not deprive Jesmer of a unanimous verdict. Thus, we affirm the convictions.
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 in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
WORSWICK, P.J.
LEE, J.
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