State Of Washington v. Heather Roark ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46015 -7 -II
Respondent,
V.
HEATHER DAWN ROARK, UNPUBLISHED OPINION
Appellant.
LEE, J. — Heather Dawn Roark appeals her convictions on three counts of delivering
methamphetamine, one count of possessing methamphetamine with intent to deliver, and the
resulting sentences. Roark argues that ( 1) the trial court erred by failing to apply the proper
analysis under ER 404( b). before admitting evidence that third parties threatened and assaulted the
confidential informant who testified against her; ( 2) the trial court erred in admitting irrelevant
evidence; ( 3) she received ineffective assistance of counsel when her attorney failed to request a
limiting instruction concerning this evidence; and (4) the trial court erred in running her four school
zone sentence enhancements consecutively to each other.
We hold that ( 1) because Roark did not raise any objection under ER 404( b) to the evidence
at issue during trial, her. ER 404( b) challenge is waived; ( 2) the trial court did not abuse its
discretion in admitting evidence that third parties threatened and assaulted the confidential
No. 46015 -7 -II
informant as relevant to the confidential informant' s credibility and Roark' s consciousness of guilt
under ER 402; ( 3) Roark' s related claim of ineffective assistance of counsel fails because any
limiting instruction would have emphasized the threat and assault evidence and would not have
changed the tr'ial' s outcome; and ( 4) because of the Washington Supreme Court' s recent decision
in State v. Conover, _ P. 3d , 2015 WL 4760487 ( Wash. Aug. 13, 2015), the trial court erred
in imposing Roark' s multiple school zone sentence enhancements consecutive to each other.
Accordingly, we affirm Roark' s convictions but remand for resentencing with instructions to the
trial court to impose Roark' s multiple school zone sentence enhancements consecutive to the base
sentences for the drug and bail jumping convictions, but concurrent to each other.
FACTS .
During May 2011, Bremerton detectives investigated Roark and Adam Carter for possible
drug violations. Paid informant Robert White made three controlled buys of methamphetamine
from Roark and one from Carter at their residence in late May.
After the four buys occurred, the police obtained a warrant to search the residence. While
executing the search warrant, officers found a baggie of methamphetamine dissolving in the toilet
and another baggie of methamphetamine in the bathroom garbage. They also found
methamphetamine, baggies, and methamphetamine pipes in the bedroom. In addition, the search
revealed a digital scale and buy money from one of the controlled buys.
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After waiving her Miranda' rights, Roark told the police that she and Carter had been
selling methamphetamine from the house for a few months. She admitted that when she heard the
officers at the door, she tried to dispose of the drug.
The State charged Roark with three counts of delivering methamphetamine, one count of
possessing methamphetamine with intent to deliver, and three counts of bail jumping after she
2
failed to appear at scheduled court hearings. The State also alleged that each drug offense
occurred within 1, 000 feet of school grounds or a school bus stop.
When Roark' s trial began on December 18, 2013, White testified about the four buys.
White explained that he engaged in the buys to work off his girlfriend' s charges and to make
money. After his cross- examination, the trial recessed for the day.
Before the jury returned on December 19, the prosecutor notified the trial court that he had
some information to discuss. The prosecutor described that information as follows: White had
appeared in court the day before, December 18, with a black eye. 3 RP 319. White received his
black eye a few days earlier after an unknown assailant approached him, asked his name, and
struck him in the face. After White testified on December 18, Roark made a phone call from jail
in which she asked Steve Irwin to get as many people as possible in court the next morning because
her `` rat"' would be testifying again. 3 Verbatim Report of Proceedings ( VRP) at 320. In an
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
2 Roark does not challenge her bail jumping convictions, so we do not set forth the testimony that
supports them.
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earlier call on December 14, Roark had stated that White and his girlfriend were responsible for
her being in custody. Finally, White had heard that someone had placed a bounty on his head.
The prosecutor argued that Roark' s jail calls linked all of this information to her and that
this evidence was admissible to show her consciousness of guilt. When the defense asked for an
offer of proof and a continuance, the prosecutor responded that White might not be willing to
return to court.
The trial court ruled that because White' s credibility had been questioned during cross-
examination, the State was entitled to explore his awareness of any threats or physical violence
related to his testimony. When the defense again sought an offer of proof, the trial court granted
that request.
During the offer of proof, White testified that several months earlier, he had received
threatening e- mails on Facebook from Ryan Higgins, Roark' s former boyfriend. The e- mails
stated that White was a " snitch." 3 VRP at 361. White added that a friend had told him the
previous week that Higgins had put a bounty on his head and wanted to buy photographs of White
being beaten up. White stated that the same night, someone had punched him in the face and fled.
White added that he thought Higgins was trying to help Roark. White also testified that he was
concerned about seeing an acquaintance in the courtroom that day who had no reason to be in
court.3 White ended the offer of proof by stating that he was afraid to testify because Roark was
known for seeking retribution.
3 The trial court noted for the record that the man about whom White expressed concern was
sitting in court with Steve Irwin, the recipient of Roark' s December 18 phone call.
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The State argued that the evidence regarding the threats, assault, and Roark' s phone calls
was admissible to show that White was nervous about testifying. When the defense argued that
the connection between Roark and the information presented was too speculative, the prosecutor
responded that the evidence was admissible to rebut defense efforts to impeach White.
The trial court referred to ER 402 in ruling that the evidence regarding the assault and
Higgins' emailed threats was relevant to White' s ability to testify and Roark' s consciousness of
guilt. The court added that the evidence regarding the bounty was admissible to show White' s
state of mind. White also could testify that the presence of his acquaintance in court with Irwin
contributed to his fear. White testified on redirect accordingly.
When trial resumed the following Monday, the State sought permission to play excerpts
from Roark' s December 14 and 18 phone calls for the jury. The defense objected and asserted that
the State had misinterpreted the calls and that they were irrelevant to any suggestion that Roark
had anything to do with White getting hit and being fearful. The defense further argued that even
if the calls were relevant, they were too prejudicial to admit.
After listening to the calls, the trial court ruled that part of the first call, in which Roark
stated that White did the buys for his girlfriend, was probative of Roark' s consciousness of guilt.
The court further ruled that Roark' s statement in the second call that " my rat is going to testify"
was relevant to White' s state of mind while testifying as well as Roark' s consciousness of guilt.
The court added that the calls, consisting of Roark' s own words, were not unfairly prejudicial. The
trial court granted defense counsel' s request to have the calls played for the jury in their entirety.
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After the jury found Roark guilty as charged, the trial court granted her request for a DOSA
4
sentence. Although Roark argued that her four school zone enhancements should run
concurrently to each other, the trial court imposed them consecutively. The court imposed a total
of 186 months on the drug charges, with 93 months to be served in prison and 93 months in
treatment. The 186 months included 96 months for the four consecutive 24 -month school zone
enhancements. The court ran the 60 -month sentences for the bail jumping convictions
concurrently to each other and concurrently to the DOSA sentence. Roark now appeals her
convictions and sentence.
ANALYSIS
A. ADMISSION OF THREATS AND ASSAULT AGAINST WHITE
Roark argues that the trial court erred in admitting the evidence of Higgins' threats against
White, as well as the assault upon White. We disagree.
1. ER 404( b)
Roark argues primarily that the trial court erred because it admitted White' s testimony
without addressing the requirements for admissibility under ER 404( b).. Roark made no such
objection at trial.
A party may only assign error on appeal based on the specific ground of the evidentiary
objection at trial. State v. Guloy, 104 Wash. 2d 412, 422, 705 P.2d 1182. ( 1985), cert. denied, 475
U.S. 1020 ( 1986); State v. Collins, 45 Wn. App. 541, 546, 726 P.2d 491 ( 1986), review denied,
107 Wash. 2d 1028 ( 1987). An objection to the admission of evidence based on relevance fails to
4 DOSA is an abbreviation for a Drug Offender Sentencing Alternative sentence imposed under
RCW 9. 94A.660.
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preserve the issue for appellate review based on ER 404(b) grounds.5 State v. Jordan, 39 Wn.
App. 530, 539, 694 P.2d 47 ( 1985), review denied, 106 Wash. 2d 1011 ( 1986), cert. denied, 475' U.S.
1039 ( 1987). Here, Roark objected to White' s testimony based only on relevance. Consequently,
we hold that she did not preserve the ER 404( b) issue for appeal.
2. Relevance
Roark' s attorney objected to admission of the information regarding the threats from
Higgins and the assault because their connection with Roark was too speculative. We review the
trial court' s rejection of this argument for abuse of discretion. State v. Bourgeois, 133 Wash. 2d 389,
399, 945 P.2d 1120 ( 1997).
Evidence is relevant if it has a tendency to prove or disprove a fact that is of some
consequence in the context of the other facts and the applicable substantive law. ER 401; 5D KARL
B. TEGLAND, WASHINGTON PRACTICE: COURTROOM HANDBOOK ON WASHINGTON EVIDENCE, Rule
401, at 125 ( 2014- 15 ed.). All relevant evidence is admissible, but it may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice. ER 402, 403.
Evidence that a defendant threatened a witness is relevant because it reveals a
consciousness of guilt. State v. Moran, 119 Wn. App. 197, 218, 81 P.3d 122 ( 2003), review denied,
151 Wash. 2d 1032 ( 2004); 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND
PRACTICE § 402.4, at 39 ( 5th ed. Supp. 2015). Such evidence is admissible for this. substantive
5 Appellate counsel also refers to ER 602, 801, and 802 in arguing that the trial court committed
evidentiary error. Here again, the failure to raise these objections below waives these claims of
error on appeal.
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No. 46015 -7 -II
purpose and to evaluate a witness' s credibility if there is a connection between the defendant and
the reluctance of any witness to testify. Bourgeois, 133 Wash. 2d at 400.
Here, the evidence showed that Higgins, Roark' s former boyfriend, made online threats to
White after the charges resulting from White' s controlled buys were filed. In addition, there was
evidence that someone told White that Higgins had placed a bounty on his head, that Roark
complained in a phone call that White was responsible for the buys, and that on the evening of the
same day as the " bounty" remark, someone assaulted White. In a second phone call made a few
days later, Roark asked Steve Irwin to " join the forces" in court the following day because " my
rat" would be testifying. 4 VRP at 527- 28. A man White knew from the drug community sat with
Irwin in court the next day.
On appeal, Roark assigns error only to the admission of Higgins' threats and the assault
against White. When viewed in the context of the other evidence described above, there is a
sufficient connection between Roark and the challenged evidence to render that evidence relevant
and admissible to show White' s reluctance to testify, as well as Roark' s consciousness of guilt.
The fact that the State contended during closing argument that the evidence was relevant only to
the issue of White' s motivations while testifying is irrelevant to our assessment of the trial court' s
ruling.
In addition to being relevant, this evidence was not unfairly prejudicial. See Carson v.
Fine, 123 Wash. 2d 206, 223, 867 P.2d 610 ( 1994) ( unfair prejudice is caused by evidence likely to
arouse an emotional response rather than a rational response among jurors). White' s testimony
regarding Higgins' threats and the assault was unlikely to elicit an emotional rather than rational
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response from the jury. Thus, the evidence was not unfairly prejudicial. We conclude that the
trial court did not abuse its discretion in admitting evidence ofthe threats and assault against White.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Roark argues next that she received ineffective assistance of counsel when her attorney
failed to request a limiting instruction concerning the jury' s use of the evidence concerning
Higgins' threats and the unknown assailant' s assault. We disagree.
This issue presents a mixed question of law and fact that we review de novo. State v.
Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 ( 2009). To demonstrate that she received ineffective
assistance of counsel, a defendant must show that her counsel' s performance was deficient and
that the deficiency was prejudicial. State v. Grier, 171 Wash. 2d 17, 32- 33, 246 P.3d 1260 ( 2011);
State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 ( 2000). Counsel' s performance was
deficient if it fell below an objective standard of reasonableness. State v. McFarland, 127 Wash. 2d
322, 334- 35, 899 P.2d 1251 ( 1995). Matters that go to trial strategy or tactics do not show deficient
performance. Grier, 171 Wash. 2d at 33; State v. Rainey, 167 Wash. App. 129, 135- 36, 28 P.3d 10
2001), review, denied, 145 Wash. 2d 1028 ( 2002). We strongly presume that counsel' s conduct
constituted sound trial strategy. Barragan, 102 Wn. App. at 762. Prejudice exists if there is a
reasonable probability that, the result of the proceeding would have differed had the deficient
performance not occurred. State v. Thomas, 109 Wash. 2d 222, 226, 743 P.2d 816 ( 1987).
Here, a limiting instruction would have highlighted the evidence concerning Higgins'
threats and the assault. Therefore, we can presume that counsel' s decision not to request a limiting
instruction was legitimate trial strategy because such an instruction would have reemphasized
damaging evidence. See State v. Donald, 68 Wash. App. 543, 551, 844 P.2d 447 ( finding failure to
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request limiting instruction was tactical), review denied, 121 Wash. 2d 1024 ( 1993). Moreover, we
see little likelihood that the trial' s outcome would have differed had the trial court offered the jury
a limiting instruction. Thus, even if counsel' s performance was deficient; Roark fails to show
prejudice. We reject Roark' s claim that she received ineffective assistance of counsel when her
attorney failed to request a limiting instruction concerning the threats and the assault against White.
C. SCHOOL ZONE ENHANCEMENTS
Finally, .Roark argues that the trial court erred when it ran her four school zone
enhancements consecutively instead of concurrently to each other. Roark argues that the
ambiguity in the applicable statute, RCW 9. 94A.533( 6), requires the enhancements to run
concurrently. The Supreme Court' s recent decision in Conover, 2015 WL 4760487, controls.
RCW 9. 94A.533 addresses sentence adjustments, and subsection ( 6) provides as follows:
An additional twenty-four months shall be added to the standard sentence
range for any ranked offense involving a violation of chapter 69. 50 RCW if the
offense was also a violation of RCW 69. 50. 435 or 9. 94A. 827. All enhancements
under this subsection shall run consecutively to all other sentencing provisions, for
all offenses sentenced under this chapter. E6
The first sentence of RCW 9. 94A.533( 6) is not at issue. There is no question that Roark
committed ranked offenses under chapter 69. 50 RCW in violation of RCW 69. 50. 435, which
requires enhanced penalties for drug offenses committed within 1, 000 feet of a school bus stop or
school grounds. RCW 69. 50. 401( 1), . 435( 1)( c), ( d). At issue here is the meaning of the second
sentence in RCW 9. 94A. 533( 6): " All enhancements under this subsection shall run consecutively
to all other sentencing provisions, for all offenses sentenced under this chapter."
6 We cite the current version of RCW 9. 94A.533( 6) for clarity. State v. Swiger, 159 Wash. 2d 224,
227 n.3, 149 P.3d 372 ( 2006).
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The Supreme Court recently resolved this issue in Conover by comparing the language of
RCW 9. 94A. 533( 6) with the contrasting language in the statutory provisions addressing other
sentence enhancements. 2015 WL 4760487, * 3( citing RCW 9. 94A. 533( 3)( e) ( firearm
enhancements shall run consecutively to all other sentencing provisions, including other firearm
or deadly weapon enhancements) and RCW 9. 94A. 533( 4)( e). ( deadly weapon enhancements shall
run consecutively to all other sentencing provisions, including other deadly weapon or firearm
enhancements)). The Conover court concluded that the legislature' s choice of different language
indicates a different legislative intent and does not require multiple school zone enhancements to
be imposed consecutively. 2015 WL 4760487, * 4. 7 Therefore, the Conover court held that " RCW
9. 94A.533( 6) requires the trial court to run Conover' s bus stop enhancements consecutively to the
base sentences for each [ convicted offense], but not consecutively to each other." Id. at * 7.
We are constrained to follow Conover. Therefore, we affirm Roark' s convictions but
remand for resentencing with instructions to the trial court to impose Roark"s multiple school zone
In 2006, legislature added the second sentence to RCW 9. 94A.533( 6). Conover, 2015 WL
4760487, * 6. The Conover court held that the second sentence still does not require trial courts to
run multiple school zone enhancements consecutively, but we note that the legislative history
concerning the 2006 amendment suggests a different result. See FINAL B. REP. ON ENGROSSED
SECOND SUBSTITUTE S. B. 6239, at 4, 59th Leg., Reg. Sess. ( Wash. 2006) ( describing sentencing
modification s] entence enhancements for ranked drug offenses are to be served
providing that "[
consecutively"); H.B. REP. ON ENGROSSED SECOND SUBSTITUTE S. B. 6239, at 7, 12, 59th Leg.,
Reg. Sess. ( Wash. 2006) ( stating that statutory language was clarified to specify that all sentence
enhancements relating to violations of the Uniform Controlled Substances Act in drug-free zones
are to run consecutively to all other sentencing provisions for all sentences under the Sentencing
Reform Act); HOUSE CRIMINAL JUSTICE & CORRECTIONS COMM., H.B. BILL ANALYSIS, ON
ENGROSSED SECOND SUBSTITUTE S. B. 6239, Leg., Reg. Sess. ( Wash. 2006) ( same);
at 6, 15, 59th
S. B. REP. ON ENGROSSED SECOND SUBSTITUTE S. B. 6239, at 5, 59th Leg., Reg. Sess., at 5 ( Wash.
2006) ( noting sentencing modification requiring enhancements for ranked drug offenses to be
served consecutively).
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sentence enhancements consecutive to the base sentences for the drug and bail jumping
convictions, but concurrent to each other.
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.
Lee, J.
We concur:
Maoxa, P.J.
AJ4J-fMJ.
Sutt n, J.
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