State Of Washington, V Donovan C. Bach ( 2013 )


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    MMIRT OF APPEALS
    D" Vishou 11
    2013NVI E3 AM 11: 15
    IN THE COURT OF APPEALS OF THE STATE OF W                                                         IN    TON
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    DIVISION II                                            W'
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    STATE OF WASHINGTON,                                                               No. 42339- 1- 11
    Respondent,                            UNPUBLISHED OPINION
    DONOVAN C. BACH,
    BJORGEN, J. —         Donovan Bach appeals from his convictions for attempted residential
    burglary   and second     degree   burglary.     He    argues: (   1) the trial court abused its discretion in
    admitting    evidence of      Bach' s   arrest on an   outstanding warrant; ( 2)        the trial court' s jury
    instruction defining " substantial step" violated his due process rights because it relieved the State
    of the burden of proving an element of attempted residential burglary; and ( 3) substantial
    evidence does not support the trial court' s finding that he had the present or future ability to pay
    the, legal financial obligations ( LFO) imposed on him. Because Bach failed to preserve the
    alleged evidentiary error and his challenge to the LFO finding and because the jury was properly
    instructed, we affirm his convictions.
    FACTS
    On December 7, 2010, Eddie and Irene Lord' were asleep in their residence. At around
    3: 46 AM, Eddie was awakened by a sound he perceived as someone trying to kick in the front
    door. Eddie looked out his bedroom window and saw a car in his driveway. He went into the
    living room, told Irene to call 911, and returned to his bedroom with a pistol and a spotlight.
    1
    For clarity,   we refer   to Eddie   and   Irene Lord   by   their first   names.    We   mean no   disrespect.
    No. 42339 -1 - II
    Eddie   raised a window and shouted, "[         I] f you' re   out   there;   you'   d better   show your   face ";   and
    announced he had a gun. Report of Proceedings ( RP) at 20.
    Eddie then   saw a "   young   man,"    whom he identified at trial as Bach, emerge from an area
    between the   residence and an outdoor storage unit.                RP   at   21. Eddie illuminated Bach with the
    spotlight, told him to " freeze" and that he would shoot, and fired a round into the ground. RP at
    21.   Bach then went to his car, backed it up at a " rather high speed" and left the residence. RP at
    25.
    Responding to the Lords' call, Mason County Sheriff' s Deputy Brett Rutherford
    proceeded to the address registered to the license plate the Lords had observed. While waiting
    for other deputies to arrive, Rutherford located the car and confirmed that its engine was still
    warm. Deputy Erik Heilman arrived at the same address, knocked on the door and was invited in
    by a woman who answered. At some point, Bach emerged from a bedroom and identified
    himself, after which law enforcement officers ascertained that he had an outstanding arrest
    warrant and arrested him. Around the same time, Deputy Trevor Clark took Eddie to the same
    residence, outside of which he identified Bach three times with " 100 percent" certainty as the
    man that had been at his house. RP at 63 -65.
    The State charged Bach with attempted residential burglary and second degree burglary.
    Before trial, Bach moved in limine to exclude any testimony that he " was arrested on warrants."
    RP at 7. However, he specified no basis for this motion. The trial court requested an offer of
    proof   from the State, reasoning that " being        arrested on a warrant per se could             be   prejudicial ...   if
    it had nothing to do   whatever with     the    case."   RP at 8. In its offer of proof, the State argued that
    0)
    No. 42339 -1 - II
    Bach' s arrest on warrants was " part of the res gestae" and necessary to explain law enforcement
    officers' actions in arresting Bach and removing him from the residence outside of which Eddie
    identified him. RP at 7 -9. Bach responded only that the officers likely would have arrested
    Bach anyway for suspicion of the burglary and, thus, he did not know whether " it' s crucial that
    the   jury hear that he was   arrested on      his   warrants."    RP at 9. The trial court denied Bach' s
    motion    in limine, ruling that the       warrant was " part of    the   res gestae"   and " relevant ...   to what
    the   officer' s actions were,"   but excluding any reference to the warrant' s basis. RP at 10..
    A jury convicted Bach as charged. At sentencing, the trial court imposed LFOs, finding
    that Bach had " the ability or likely future ability to pay" them. RP at 10. Bach did not challenge
    this finding before the trial court. The court ordered payments to begin 60 days after Bach' s
    release from custody. Bach appeals.
    ANALYSIS
    I. EVIDENTIARY CHALLENGES
    Bach argues that the admission of Heilman' s testimony that he was arrested on an
    outstanding    warrant violated      ER 404( b),      requiring reversal. For the reasons below, we hold that
    Bach failed to preserve this challenge for appeal.
    According to ER 404( b),
    e] vidence   of   other   crimes,     wrongs,      or acts is not admissible to prove the
    character of a person       in    order    to   show action   in conformity therewith.
    It may,
    however, be admissible for other purposes, such as proof of motive, opportunity,
    intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
    Under ER 103( a)( 1),
    e] rror may not be predicated upon a ruling which admits or excludes evidence
    the party is affected, and ... [ i]n case the ruling is one
    unless a substantial right of
    3
    No. 42339 -1 - II
    admitting evidence, a timely objection or motion to strike is made, stating the
    specific ground of objection, if the specific ground was not apparent from the
    context.
    Applying these provisions, our Supreme Court has held that a nonspecific objection based on
    prejudice" will preserve an ER 404( b) challenge for appeal " because it suggests the defendant
    was prejudiced      by   the   admission of evidence of prior            bad   acts,"    but an objection based on
    relevance alone will not. State v. Mason, 
    160 Wash. 2d 910
    , 933, 
    162 P.3d 396
    ( 2007).
    Here, Bach moved before trial to exclude any testimony about his arrest on an
    outstanding warrant. The only bases he provided for this objection, though, were his speculation
    that law enforcement officers would have arrested him even without the warrant, based on
    suspicions of his involvement in the burglary, and his view that the testimony was not " crucial"
    for the jury to hear. RP at 9. However, he never argued that the testimony would be prejudicial.
    Thus, Bach appeared to base his objection on grounds of relevance or that the testimony was
    2
    needlessly    cumulative under       ER 403,           not on grounds of prejudice.
    Bach    argues    that   even   if trial   counsel   failed to   mention        ER 404( b),   the reference by both
    the trial judge and defense counsel to the notion of res gestae shows that each understood this
    objection    to be brought      under   that   rule.    Under ER 103( a)( 1), Bach argues his objection is
    preserved since its specific ground was apparent from the context.
    As noted, the only grounds for objection offered by Bach below were that law
    enforcement officers would have arrested him in any event and that testimony about his arrest
    was not crucial. This, together with the absence of any claim of prejudice, unambiguously
    2
    ER 403   provides, "   Although relevant, evidence may be excluded if its probative value is
    substantially   outweighed ...    by considerations of ... needless presentation of cumulative
    evidence."
    M
    No. 42339 -1 - II
    signals an objection          based    on   ER 403,   not   ER 404( b). Under ER 103( a)( 1) and 
    Mason, 160 Wash. 2d at 933
    , the reference to res gestae does not translate this to an ER 404( b) objection.
    Bach   also argues   that     under   Garceau   v.   Woodford, 
    275 F.3d 769
    ( 9th Cir. 2001),       reversed
    on other grounds by Woodford v. Garceau, 
    538 U.S. 202
    , 
    123 S. Ct. 1398
    , 
    155 L. Ed. 2d 363
    2003), the alleged violation of ER 404( b) is a due process violation of constitutional magnitude.
    If correct, the objection under ER 404( b) could be raised for the first time on appeal under RAP
    2. 5(   a).   However, we are bound only by decisions of our state Supreme Court and
    nonsupervisory decisions of the United States Supreme Court. In re Pers. Restraint of Crace,
    157 Wn.        App.   81, 98   n. 7,   
    236 P.3d 914
    ( 2010), reversed on other grounds, 
    174 Wash. 2d 835
    , 
    280 P. M
    1102 ( 2012). Our Supreme Court has held that "`` [ e]                    videntiary errors under ER 404 are not
    of constitutional magnitude. "'              State v. Smith, 
    106 Wash. 2d 772
    , 780, 
    725 P.2d 951
    ( 1986)
    quoting State        v.   Jackson, 
    102 Wash. 2d 689
    , 695, 
    689 P.2d 76
    ( 1984)).                 Therefore, RAP 2. 5( a)
    does not allow them to be raised for the first time on appeal.
    For these reasons, Bach failed to preserve his ER 404(b) challenge for appellate review.
    As noted, Bach did object to admission of evidence of his arrest warrant under the
    standards of         ER 403,   which states     that "[   a] lthough relevant, evidence may be excluded if its
    probative value         is substantially      outweighed ...       by   considerations of...     needless presentation of
    cumulative evidence."
    Bach argues on appeal that this evidence was inadmissible under ER 403, because it was
    unduly        prejudicial.    However, Bach did           not argue at   trial that it   was prejudicial.   The only bases
    for this objection, as described above, were speculation that he would have been arrested anyway
    and his opinion that the testimony was not crucial. In the absence of any claim of prejudice, it
    5
    No. 42339 -141
    was not an abuse of discretion for the trial judge to admit this evidence when the only objection
    3
    was   that it may   not   strictly be   needed.
    II. SUBSTANTIAL STEP JURY INSTRUCTION
    Bach argues for the first time on appeal that jury instruction 9, defining " substantial step"
    for purposes of criminal attempt, violated his due process rights. Specifically, he argues that ( 1)
    instruction 9'   s usage of "indicates"       instead       of " corroborates"   and ( 2)   "   a criminal purpose"
    instead of "the criminal purpose" relieved the State of its burden to prove the substantial step
    element of criminal attempt. Br. of Appellant at 11 - 14. We hold that the trial court did not err in
    giving the instruction and, alternatively, if it were erroneous, Bach invited the error by assenting
    to the instruction at trial.
    We review alleged errors of law injury instructions de novo. State v. Hayward, 152 Wn.
    App.   632, 641, 
    217 P.3d 354
    ( 2009).             Jury instructions are proper when they permit the parties to
    argue their theories of the case, do not mislead the jury, and properly inform the jury of the
    applicable law. 
    Hayward, 152 Wash. App. at 641
    ( quoting State v. Barnes, 
    153 Wash. 2d 378
    , 382,
    
    103 P.3d 1219
    ( 2005)). " Due process requires the State to bear the `` burden of persuasion beyond
    a reasonable     doubt    of   every   essential    element of a crime. "'   State v. Deal, 
    128 Wash. 2d 693
    , 698,
    
    911 P.2d 996
    ( 1996) ( quoting State          v.       Hanna, 
    123 Wash. 2d 704
    , 710, 
    871 P.2d 135
    ( 1994)).            Thus,
    it is constitutional and reversible error to instruct the jury in a manner that would relieve the
    State of its burden to prove every essential element of a criminal offense beyond a reasonable
    doubt. See 
    Hayward, 152 Wash. App. at 641
    -42. We analyze a challenged jury instruction by
    3
    Bach does not make an independent argument based on ER 401 and 402, but relies on those
    arguments rejected above.
    6
    No. 42339 -1 - II
    considering the instructions as a whole and reading the challenged portions in context.
    
    Hayward, 152 Wash. App. at 642
    .
    Under RAP 2. 5 ( a) a claim of manifest constitutional error may be raised for the first time
    on appeal. Thus, we reach Bach' s due process claim, even though he did not raise it below.
    Turning to the merits of Bach' s challenges, our Supreme Court has defined the substantial step
    element of criminal attempt as conduct " strongly corroborative of the actor' s criminal purpose."
    State   v.   Workman, 
    90 Wash. 2d 443
    , 451 -52, 
    584 P.2d 382
    ( 1978) (                      emphasis added).    In
    comparison, jury instruction 9 defined a substantial step as " conduct that strongly indicates a
    criminal purpose and            that   is   more    than   mere preparation."       Clerk' s Papers ( CP) at 79 ( emphasis
    added).       This instruction is identical to the Washington pattern jury instruction defining
    substantial      step.   11A WASHINGTON PRACTICE, PATTERN JURY INSTRUCTIONS: CRIMINAL
    WPIC) 100. 05,          at   390 ( 3d   ed.   2008).      This pattern instruction and, thus, jury instruction 9, are
    consistent with the Workman court' s definition of substantial step. State v. Gatalski, 40 Wn.
    App.    601, 613, 
    699 P.2d 804
    ( 1985), overruled on other grounds as stated in State v. Harris, 
    121 Wash. 2d 317
    , 
    849 P.2d 1216
    ( 1993).                    Accordingly, jury instruction 9 was not erroneous.
    Second, Bach argues that instruction 9' s usage of "a criminal purpose" allowed the jury
    to fnd that he had committed a substantial step if his conduct indicated any criminal purpose, as
    opposed to the criminal purpose of committing residential burglary. Br. of Appellant at 13
    emphasis omitted).             We rejected a similar argument in State v. Eplett, 
    167 Wash. App. 660
    , 665-
    66, 
    274 P.3d 401
    ( 2012). In Eplett, an attempted second degree rape of a child case, we held that
    the jury instruction defining a substantial step should not be read in isolation. Eplett, 167 Wn.
    App.    at    666. We     observed          that   another   jury   instruction   provided, " A   person commits the crime
    7
    No. 42339 -1 - II
    of attempted rape of a child in the second degree when, with intent to commit that crime, he or
    she   does any      act   that is   a substantial   step toward the   commission     of that   crime."   Eplett, 167 Wn.
    App. at 666. Thus, we concluded that " the two instructions clearly require[ d] the jury to find that
    there was evidence demonstrating that Eplett took a substantial step toward committing the
    charged offense."           
    Eplett, 167 Wash. App. at 666
    .
    As in Eplett, instruction 8 in this        case provided    that "[ a] person commits the crime of
    attempted residential burglary when, with intent to commit that crime, he or she does any act that
    is   a substantial    step toward the         commission of   that   crime."   CP   at   78 ( emphasis   added).   In
    addition, instruction 13 provided,
    To convict the defendant of the crime of attempted residential burglary,
    each of the following elements of the crime must be proved beyond a reasonable
    doubt ... [ t] hat on or about the 7th day of December, 2010, the defendant did an
    act that was a substantial step toward the commission ofresidential burglary.
    CP    at   83 (   emphasis added).          Thus, when read together the jury instructions sufficiently informed
    the jury that Bach' s conduct had to indicate a criminal purpose of committing residential
    burglary. With that, his claim fails.
    Finally, even if the instruction were erroneous in either respect, Bach affirmatively
    assented      to the instruction       at   trial. " Under the doctrine of invited error, even where
    constitutional rights are involved, we are precluded from reviewing jury instructions when the
    defendant has         proposed an       instruction   or agreed   to its wording."       State v. Winings, 
    126 Wash. App. 75
    , 89, 
    107 P.3d 141
    ( 2005);              see also In re Det. of Gaff, 
    90 Wash. App. 834
    , 845, 
    954 P.2d 943
    1998).       Under these cases, Bach invited any error in instruction 9 and may not complain of it on
    appeal.
    No. 42339- 1- 11
    III. SUFFICIENCY OF FINDINGS ON LEGAL FINANCIAL OBLIGATIONS
    Finally, Bach contends that substantial evidence does not support the trial court' s finding
    that he had the present or future ability to pay LFOs. Consistent with our recent decision in State
    v.    Blazina, No. 42728 -14I, 
    2013 WL 2217206
    ( Wash. Ct.       App. May      21, 2013), we decline to
    allow Bach to challenge that finding for the first time in this appeal. See RAP 2. 5( a).
    We affirm Bach' s convictions and sentence.
    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.
    J
    I concur:
    C   C, .
    rJ      HANSON, A.C. J.
    t/
    No. 42339 -1 - II
    Qu   NN- BRINTNALL,   J. ( concurring in the   result) —    I agree with the majority opinion' s
    conclusion that Donovan Bach failed to preserve his evidentiary issue and that the jury in this
    case was   properly instructed.   However, for the     reasons stated   in State   v.   Lundy, _   Wn. App.
    
    308 P.3d 755
    , 761 - 62 ( 2013),   I believe that Bach' s challenge to the trial court' s finding on
    his present and future ability to pay legal financial obligations is not ripe for our review.
    QtINN-BRINTNALL, J.
    10