State Of Washington, V Jory E. Denman ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
October 16, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50401-4-II
Respondent,
v.
JORY EDWARD DENMAN, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Jory Edward Denman appeals his conviction for bail jumping in the second
degree. Denman argues that insufficient evidence existed because he did not have notice of the
date he had to appear in court. Denman further argues the State argued unsupported facts during
closing argument. Denman also argues he received ineffective assistance of counsel because his
lawyer failed to object during the prosecutor’s closing argument.
We affirm the conviction.
FACTS
I. RELEASE ON BAIL AND ORDER TO APPEAR
The State initially charged Denman with six felonies. The Cowlitz County Superior Court
released Denman on bail, with the condition that he appear at all future court appearances.
At his arraignment on May 17, the court ordered Denman to appear in court on July 11 for
a pretrial hearing, on August 4 for a readiness hearing, and on August 8 for trial. Denman signed
the order. The dates listed the month and day, but not the year.
50401-4-II
II. FAILURE TO APPEAR
Denman appeared at the pretrial hearing but did not appear at the trial readiness hearing.
After Denman failed to appear, the judge ordered a warrant for Denman’s arrest.
A few days later, Denman and his lawyer appeared in court. Denman asked the court to
quash the warrant because he “inadvertently missed court on [August 4].” Report of Proceedings
(RP) at 5. The prosecution did not object. The court quashed the bench warrant.
The State amended the information to add a count for bail jumping. The State later
dismissed the six felonies and proceeded to trial on only the bail jumping count.
III. TRIAL
At trial, Cowlitz County Deputy Clerk Jeanette Kleine testified as follows. Kleine
identified Denman as somebody she recognized from prior court appearances in this case. Kleine
prepared the clerk’s minute sheet for Denman’s arraignment on May 17. Denman appeared at the
arraignment, and the court ordered him to appear on July 11, August 4, and August 8, 2016.
Denman signed the order to appear. Denman appeared on July 11, but did not appear on August
4. The judge ordered a bench warrant for Denman’s arrest because he failed to appear on August
4.
The court admitted the clerk’s minute sheets and the May 17 order requiring Denman to
appear. The clerk’s minute sheets showed that Denman appeared at the arraignment and pretrial
hearing, but not the readiness hearing.
Denman stipulated that he had been charged with a class B or C felony, and that the court
had released him on bail, as of August 4.
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During closing argument, the prosecutor made the following statement:
And we know from the testimony that [Denman] was aware of the[] dates [on the
order to appear] because he signed a document saying here are your dates, you need to
appear here in court on these days and times, you are ordered to do so.
RP at 89.
Denman argued in closing that he failed to appear on August 4 either because he did not
know the year in which he had to appear, or because the court usually scheduled pretrial hearings
and arraignments at 2:00 P.M. on Mondays for his lawyer’s out-of-custody clients.
The jury found Denman guilty of bail jumping in the second degree.
Denman appeals.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
Denman seeks reversal of his conviction for bail jumping by arguing insufficient evidence
existed that he knew the date the court ordered him to appear, that he failed to appear, or that the
State proved he was the person ordered to appear. We disagree.
When a defendant challenges the sufficiency of the evidence supporting a conviction, we
examine the record to decide whether any rational fact finder could have found that the State
proved each element of the offense beyond a reasonable doubt. State v. Green, 94 Wash. 2d 216,
221-22, 616 P.2d 628 (1980). Additionally, we deem the State’s evidence admitted and draw all
reasonable inferences from that evidence in the State’s favor. State v. Caton, 174 Wash. 2d 239, 241,
273 P.3d 980 (2012). Direct and circumstantial evidence carry the same weight. State v. Varga,
151 Wash. 2d 179, 201, 86 P.3d 139 (2004).
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“Any person who, after being released on bail with knowledge of the next court date, fails
to appear at the required date and time is guilty of bail jumping.” State v. Anderson, 3 Wash. App.
2d 67, 70, 413 P.3d 1065 (2018); see RCW 9A.76.170(1).
The State must prove the defendant “‘was released by court order or admitted to bail with
the requirement of a subsequent personal appearance; and . . . knowingly failed to appear as
required.’” State v. Williams, 162 Wash. 2d 177, 184, 170 P.3d 30 (2007) (quoting State v. Pope,
100 Wash. App. 624, 627, 999 P.2d 51 (2000)); see State v. Boyd, 1 Wash. App. 2d 501, 516, 408 P.3d
362 (2017), review denied, 190 Wash. 2d 1008 (2018). The State can prove that a defendant knew
he was required to appear with evidence that the defendant received notice of the dates on which
he was required to appear. Boyd, 1 Wash. App. 2d at 516.
The State must also prove that the person on trial for bail jumping was the same person
who failed to appear as ordered. State v. Huber, 129 Wash. App. 499, 502, 119 P.3d 388 (2005);
State v. Brezillac, 19 Wash. App. 11, 12, 573 P.2d 1343 (1978). The State can meet this burden in
multiple ways, including eyewitness identification. Huber, 129 Wash. App. at 503.
Here, Kleine identified Denman at trial as the person the court ordered to appear on August
4, 2016. She testified that Denman signed the order to appear. Kleine also testified that Denman
failed to appear on August 4. The clerk’s minute sheets corroborate Kleine’s testimony. Although
the order to appear did not contain the year, the court ordered Denman to appear, and a reasonable
juror could easily infer from all of the direct and circumstantial evidence that the court ordered the
future appearances in the year 2016.
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Viewing this evidence, and its inferences in the light most favorable to the State, a
reasonable juror could find that Denman was the person the court ordered to appear at the
arraignment, and that he knowingly failed to appear as required on the date specified by the court.
Therefore, sufficient evidence supports Denman’s bail jumping conviction.
II. PROSECUTORIAL MISCONDUCT
Denman argues that the prosecutor improperly argued unsupported facts during closing
argument. We disagree.
“Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair
trial.” In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 703-04, 286 P.3d 673 (2012).
Prosecutorial misconduct is grounds for reversal if the defendant shows the prosecuting attorney’s
“conduct was both ‘improper and prejudicial in the context of the entire record and the
circumstances at trial.’” State v. Thorgerson, 172 Wash. 2d 438, 442, 258 P.3d 43 (2011) (quoting
State v. Magers, 164 Wash. 2d 174, 191, 189 P.3d 126 (2008)) (internal quotations omitted).
Prosecutors “have wide latitude to argue facts and reasonable inferences from the evidence” at
trial. In re Pers. Restraint of Lui, 188 Wash. 2d 525, 557, 397 P.3d 90 (2017).
Here, the State based its argument on the evidence. It argued that Denman had notice of
the dates to appear, and that he signed the order to appear. Therefore, we conclude that no
prosecutorial misconduct occurred.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Denman argues that his counsel was ineffective by failing to object when the prosecutor
argued that Denman was aware of the dates on the order to appear because he signed the order to
appear. We disagree.
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We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wash. 2d 870, 883, 204 P.3d 916 (2009).
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171
Wash. 2d 17, 32, 246 P.3d 1260 (2011). To prevail on an ineffective assistance of counsel claim, the
defendant must show both that defense counsel’s representation was deficient and that the deficient
representation prejudiced the defendant. Grier, 171 Wash. 2d at 32-33. If a defendant fails to prove
either prong, the claim fails. State v. Lord, 117 Wash. 2d 829, 884, 822 P.2d 177 (1991), abrogated
on other grounds by State v. Schierman, ___ Wn.2d ___, 415 P.3d 106 (2018).
Representation is deficient if after considering all the circumstances, “it falls ‘below an
objective standard of reasonableness.’” Grier, 171 Wash. 2d at 33 (quoting Strickland, 466 U.S. at
688). Prejudice exists if there is a reasonable probability that except for counsel’s errors, the result
of the proceeding would have differed. Grier, 171 Wash. 2d at 34. Where the challenged conduct,
e.g., the prosecutor’s closing argument, was not improper, a defendant fails to establish deficient
conduct for his counsel’s failure to object. See Thorgerson, 172 Wash. 2d at 442.
Here, the evidence and its reasonable inferences supported the State’s argument.
Therefore, Denman’s counsel was not deficient because any objection would have been overruled.
Denman did not receive ineffective assistance of counsel.
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We affirm.
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.
Melnick, J.
We concur:
Worswick, P.J.
Johanson, J.
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