State Of Washington v. Shane Allen Skjold ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON, No. 69077-9-1
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Respondent, DIVISION ONE _ ^
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v. UNPUBLISHED OPINION r* ^n
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SHANE ALLEN SKJOLD, en "-"1
FILED: October 14, 2013
Appellant.
Grosse, J. — The statutory definition of "restrain" is not an essential
element of the crime of unlawful imprisonment and failure to include the statutory
definition in an information does not render the information deficient.
Accordingly, the information in this case was not deficient. Further, the evidence
was sufficient to convict the appellant of first degree burglary, and the issues he
raises in his statement of additional grounds are without merit. For these
reasons, we affirm.
FACTS
On December 2, 2011, at around 2:00 a.m., Richard Romero, Jr. was
awakened from his sleep by a pounding on his apartment door. Romero was the
maintenance person at the apartment complex and thought the knock was by a
tenant who was having an emergency, so he walked into the living room,
unlocked the door, and opened it. When Romero opened the door, appellant
Shane Skjold walked into the living room, grabbed Romero by the throat, pushed
him to the ground, pulled out a knife from underneath his sweatshirt, and
repeatedly asked Romero "where his stuff was." Skjold kneeled over Romero
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and waved the knife in front of him. While this was happening, Romero's 9-year-
old son was sitting in a chair in the living room and started crying. Romero was
very scared and did not know what Skjold was talking about.
Romero managed to get up, and Skjold told him they needed to go to
Skjold's apartment because there was "stuff* missing from his apartment. Before
they left, Skjold asked Romero to give him the key to his (Skjold's) apartment.
Romero gave Skjold the key and the two men went to Skjold's apartment.
Inside Skjold's bedroom, Skjold was upset and said that somebody had
taken something from his closet. He started throwing drawers. He told Romero,
"It's gone. It's gone." Skjold accused Romero of taking whatever he was talking
about. Romero tried to calm Skjold down and convince him that he had not
taken anything from his apartment. Skjold, who had been pacing in the bedroom,
got quiet, bent over as if he was going to pick something up, stood up, and hit
Romero on the side of his face. The punch completely collapsed most of the
bones on the left side of Romero's face and caused eight separate fractures.
After the punch, Romero, who was bleeding profusely from the face, felt
"trapped" and told Skjold he would not say anything about the incident. Skjold
told Romero he could leave, and Romero returned to his apartment.
The next morning, Romero called his father, who drove him to the
hospital. Romero told his father what had happened to him the previous night.
At first, Romero told the hospital personnel that he had slipped, but when they
expressed disbelief that a slip could result in such serious injuries, he said he
had been assaulted. From the hospital, Romero and his father went to the
No. 69077-9-1 / 3
father's house; from there, Romero's mother drove him to the police station,
where he gave a statement.
The State charged Skjold with first degree burglary with a deadly weapon
enhancement, second degree assault with a deadly weapon enhancement, and
unlawful imprisonment. A jury found Skjold guilty as charged. The court
sentenced Skjold to an exceptional sentence of 229 months because, due to
Skjold's high offender score, a standard range sentence would have allowed
some crimes to go unpunished. Skjold appeals.
ANALYSIS
Sufficiency of the Charging Document - Unlawful Imprisonment
Skjold argues his conviction of unlawful imprisonment must be reversed
on the ground that the count of the information charging him with that crime is
deficient because it does not contain the four components of "restrain."
"A person is guilty of unlawful imprisonment if he or she knowingly
restrains another person."1 "Restrain" for purposes of the crime of unlawful
imprisonment is defined as
to restrict a person's movements without consent and without legal
authority in a manner which interferes substantially with his or her
liberty. Restraint is "without consent" if it is accomplished by (a)
physical force, intimidation, or deception, or (b) any means
including acquiescence of the victim, if he or she is a child less than
sixteen years old or an incompetent person and if the parent,
guardian, or other person or institution having lawful control or
custody of him or her has not acquiesced.[2]
1 RCW9A.40.040(1)
2RCW9A.40.010(6).
No. 69077-9-1/4
Skjold argues the information is deficient because it omits essential
elements of the offense, namely that he knowingly restricted another's
movements, without that person's consent, without legal authority, and in a
manner that substantially interfered with that person's liberty. We rejected this
argument in State v. Phuong, holding that the statutory definition of "restrain" is
not an essential element of the crime of unlawful imprisonment and that failure to
include the statutory definition in an information does not render the information
deficient.3 The charging document here is sufficient.
Sufficiency of the Evidence - First Degree Burglary
A person is guilty of burglary in the first degree if, with intent
to commit a crime against a person or property therein, he or she
enters or remains unlawfully in a building and if, in entering or while
in the building or in immediate flight therefrom, the actor or another
participant in the crime (a) is armed with a deadly weapon, or (b)
assaults any person.t4]
A person "enters or remains unlawfully" in or upon premises, for purposes of the
first degree burglary statute, "when he or she is not then licensed, invited, or
otherwise privileged to so enter or remain."5
Skjold argues that the evidence is insufficient to convict him of first degree
burglary because there is no evidence that he entered or remained unlawfully in
Romero's apartment. We disagree.
Evidence is sufficient to support a conviction if, 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. A claim of
insufficiency admits the truth of the State's evidence and all
inferences that reasonably can be drawn therefrom. We defer to
3 174 Wash. App. 494, 502, 299 P.3d 37 (2013).
4RCW9A.52.020(1).
5RCW9A.52.010(5).
No. 69077-9-1 / 5
the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence.®
Contrary to Skjold's argument, there is no evidence that Romero invited
Skjold into his apartment. Rather, the evidence shows that when Romero heard
the pounding on the door to his apartment, he opened it to see if it was a tenant
having an emergency. When Romero opened the door, Skjold walked into the
apartment, grabbed Romero by the throat, pushed him to the ground, and pulled
a knife. According to Romero, very little time passed as these events unfolded
and Romero "pretty much went right down on the ground." We find no evidence
to support Skjold's contention that he was invited into Romero's apartment. The
evidence, viewed in a light most favorable to the State, was sufficient to support
Skjold's conviction of first degree burglary.
Statement of Additional Grounds
1. Deadly Weapon Enhancement
In his statement of additional grounds (SAG), Skjold argues that the
deadly weapon enhancements were not proper because the blade of the knife he
wielded during the events was two and a half inches long. He argues that an
enhancement is proper only if the blade is three inches long or longer. Skjold is
incorrect. The statutes on which Skjold relies pertain to indeterminate sentences
and crimes committed before July 1, 1984. These statutes are not relevant here.
For purposes of a deadly weapon special verdict, a "deadly weapon" "is an
implement or instrument which has the capacity to inflict death and from the
6 State v. Cordero. 170 Wash. App. 351, 361, 284 P.3d 773 (2012) (internal
quotation marks and citations omitted).
No. 69077-9-1 / 6
manner in which it is used, is likely to produce or may easily and readily produce
death."7 The knife Skjold pulled on Romero falls within this definition. The fact
that the blade of the knife Skjold pulled on Romero was less than three inches in
length does not change our conclusion. Knives with blades longer than three
inches are included in the statutory list of instruments included in the term
"deadly weapon," but that list is not exclusive.8
2. Ineffective Assistance of Counsel
To succeed on an ineffective assistance of counsel claim, a defendant
must show that (1) counsel's conduct was deficient; and (2) the defendant was
prejudiced as a result.9 Deficient performance is that which falls below an
objective standard of reasonableness.10 To demonstrate prejudice, a defendant
must show that, but for the deficient performance, there is a reasonable
probability that the outcome of the trial would have been different.11 If the
ineffective assistance claim fails on one prong, we need not address the other
prong.12
We presume that counsel's representation of his or her client was
reasonable and are highly deferential to counsel's decisions.13 Strategic and
tactical decisions are not grounds for error.14
7 RCW 9.94A.825.
8 See State v. Samanieoo. 76 Wash. App. 76, 81, 882 P.2d 195 (1994).
9 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L Ed. 2d 674
(1984).
™In re Pet, of Moore. 167Wn.2d113, 122, 216 P.3d 1015 (2009).
11 In re Matter of Pirtle. 136 Wash. 2d 467, 487, 965 P.2d 593 (1998).
12 State v. Staten. 60 Wash. App. 163, 171,802P.2d 1384(1991).
13 Strickland. 466 U.S. at 689-91.
14 Strickland. 466 U.S. at 689-91.
No. 69077-9-1 / 7
A. Trial Counsel
Skjold argues his trial counsel was ineffective because he failed to object
to the trial court's allowance of testimonial hearsay statements. The testimony to
which Skjold refers is a police officer's testimony about statements Skjold's
girlfriend made to the police when the police arrived at her and Skjold's
apartment in response to a 911 call from neighbors reporting a domestic dispute
and testimony from the neighbor about what he heard the girlfriend saying. The
testimony was that the girlfriend was screaming loudly, "Please don't hurt me,
he's trying to hurt me, he's trying to kill me" and that she was fighting with
another person (who turned out to be Skjold) about money.
"The decision of when or whether to object is a classic example of trial
tactics. Only in egregious circumstances, on testimony central to the State's
case, will the failure to object constitute incompetence of counsel justifying
reversal."15 Here, the statements of which Skjold complains were not central to
the State's case. Further, it is likely that defense counsel did not object to avoid
drawing unnecessary attention to the statement. This decision was a valid trial
tactic. Even if, however, counsel's performance was deficient for failing to object,
Skjold has not demonstrated that, but for the deficient performance, the outcome
of the trial would have been different.
B. Appellate Counsel
In order to establish ineffective assistance of appellate counsel, the
defendant must show that the legal issue appellate counsel failed to raise had
15
State v. Madison. 53 Wash. App. 754, 763, 770 P.2d 662 (1989).
No. 69077-9-1 / 8
merit and that the defendant was actually prejudiced by the failure to raise or
adequately raise the issue.16 Skjold has failed to do so.
Skjold argues his appellate counsel was ineffective for not arranging for
the transcription of the opening statements, voir dire, and the court's reading of
the instructions to the jury. "A verbatim report of proceedings provided at public
expense will not include the voir dire examination or opening statement unless so
ordered by the trial court."17 Further, Skjold has not shown, nor can we
ascertain, any possibility of prejudice to Skjold by not having a transcript of the
trial court's reading of the instructions to the jury.
Skjold has filed a motion entitled "Motion to Supplement Statement of
Additional Grounds for Review," which is, in effect, a third SAG. This SAG, like
the other two he filed, was filed well past the 30-day due date in RAP 10.10(d).
We deny Skjold's motion. Further, the issues he raised in it are without merit.
Skjold fails to show how he was prejudiced by appellate counsel's failure to raise
an issue about the trial court's rulings on the motions in limine. And, Skjold cites
no authority requiring appellate counsel to respond to the State's response to an
appellant's pro se SAG.
3. Denial of Motion for Mistrial
During Detective Cyrus O'Bryant's testimony, the following colloquy
occurred:
Q. And what did he say about the knife?
16 InreMatterofMaxfield. 133 Wash. 2d 332, 344, 945 P.2d 196 (1997).
17 RAP 9.2(b).
No. 69077-9-1 / 9
A. He said the knife wasn't his, and he was very specific.
He said because he's under DOC super -
Q. Wait.
[PROSECUTOR]: Move to strike.
THE COURT: Motion granted.
At the end of the day's testimony, out of the presence of the jury, defense
counsel moved for a mistrial, arguing that the detective's statements ran afoul of
ER 404(b). The trial court denied the motion for a mistrial. In his SAG, Skjold
argues that the denial of his motion for a mistrial was error.
The trial court should grant a mistrial "only when the defendant has been
so prejudiced that nothing short of a new trial can ensure that the defendant will
be fairly tried."18 Factors to consider in determining whether a trial irregularity
prejudiced a defendant's right to a fair trial are (1) the seriousness of the
irregularity, (2) whether it involved cumulative evidence, and (3) whether the trial
court properly instructed the jury to disregard the irregularity.19 We review the
trial court's denial of a motion for mistrial for an abuse of discretion, finding such
an abuse only if "'no reasonable judge would have reached the same
conclusion.'"20
The trial court's denial of Skjold's motion for a mistrial was not an abuse of
discretion and was not a conclusion that no reasonable judge would have
reached. The detective did not complete the word "supervision" and the trial
18 State v. Emery, 174 Wash. 2d 741, 765, 278 P.3d 653 (2012).
19 Emery. 174 Wn.2d at 765 (quoting State v. Hopson, 113 Wash. 2d 273, 284, 778
P.2d 1014 (1989)).
20 Hopson, 113 Wn.2d at 284 (Quoting Sofie v. Fibreboard Corp.. 112Wn.2d636,
667,771 P.2d711 (1989)).
No. 69077-9-1/10
court immediately struck the comment from the record. We cannot say that the
detective's truncated statement so prejudiced Skjold that nothing short of a new
trial can ensure that he will be fairly tried.
4. Offender Score Calculation
Skjold argues that the trial court improperly calculated his offender score
because the three counts with which he was charged constituted the same
criminal conduct.
"Same criminal conduct" means "two or more crimes that require the same
criminal intent, are committed at the same time and place, and involve the same
victim."21 All three factors must be present; "[i]f any element is missing, multiple
offenses cannot be said to encompass the same criminal conduct." We
construe the definition of "same criminal conduct" narrowly so as to disallow most
assertions of same criminal conduct. And, "we will reverse a sentencing court's
determination of same criminal conduct only when there is a 'clear abuse of
discretion or misapplication ofthe law.'"23
Here, all three crimes with which Skjold was charged involved the same
victim. But, the unlawful imprisonment did not occur in the same place as the
burglary and the assault. Further, the offenses do not share the same criminal
intent. One factor in determining whether offenses share the same criminal
21 RCW9.94A.589(1)(a).
22 State v. Wilson. 136 Wash. App. 596, 613, 150 P.3d 144 (2007) (quoting State v.
Lesslev. 118 Wash. 2d 773, 778, 827 P.2d 996 (1992)).
23 Wilson. 136 Wn. App. at 613 (quoting State v. Elliott. 114 Wash. 2d 6, 17, 785
P.2d 440 (1990)).
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No. 69077-9-1 /11
intent is whether one crime furthered the other.24 The burglary and assault did
not further the unlawful imprisonment. The trial court did not abuse its discretion
in not counting the three offenses as constituting the same criminal conduct.
5- Cruel and Unusual Punishment
Skjold argues that his 229-month sentence constitutes cruel and unusual
punishment. We review the length of a sentence for abuse of discretion.25 We
will find an abuse of discretion only if (1) the trial court relied on an impermissible
reason, or (2) the sentence is so long that, in light of the record, it shocks the
conscience of the reviewing court.26 We do not review the length of a sentence
in comparison with or in proportion to sentences in other cases.27 A sentence
shocks the conscience when it is one that no reasonable person would adopt.28
The trial court properly relied on the "free crimes" aggravator in imposing
an exceptional sentence. Under the aggravator, the trial court may impose an
exceptional sentence where the defendant "has committed multiple current
offenses and the defendant's high offender score results in some of the current
offenses going unpunished."29 And, while lengthy, Skjold's sentence does not
shock the conscience of this court. The trial court did not abuse its discretion in
imposing the exceptional sentence.
24 See State v. Burns. 114 Wash. 2d 314, 318, 788 P.2d 531 (1990).
25 State v. Ritchie. 126 Wash. 2d 388, 392, 894 P.2d 1308 (1995).
26 Ritchie. 126 Wn.2d at 396 (quoting State v. Ross. 71 Wash. App. 556, 573, 861
P.2d 473 (1993)).
27 Ritchie. 126 Wn.2d at 396.
28 State v. Halsev. 140 Wash. App. 313, 324-25, 165 P.3d 409 (2007).
29RCW9.94A.535(2)(c).
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No. 69077-9-1/12
Affirmed.
WE CONCUR:
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