State Of Washington v. Jeffrey David Conaway ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 80214-3-I
)
Respondent, )
) DIVISION ONE
v. )
)
JEFFREY DAVID CONAWAY, )
) UNPUBLISHED OPINION
Appellant. )
)
MANN, C.J. — Jeffrey Conaway appeals his conviction for felony indecent
exposure, alleging that the State failed to provide sufficient evidence of his prior
conviction, that the court improperly commented on the evidence by defining
“conviction,” and that the court abused its discretion when it responded to the jury
inquiry. We affirm.
FACTS
After Jeffrey Conaway exposed his penis to a 17-year-old girl while she was
alone at her family’s garage sale, the State charged Conaway with felony indecent
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80214-3-I/2
exposure predicated on a prior conviction for indecent exposure. 1 The predicate
offense was a 2006 charge for misdemeanor indecent exposure. Conaway entered a
guilty plea on the 2006 charge in exchange for a deferred sentence. After Conaway
complied with all of the conditions of the deferred sentence, the court dismissed the
2006 charge.
At trial, the State sought to introduce evidence of Conaway’s prior conviction, but
discovered that the district court destroyed the files and no longer had a copy of the
judgment and sentence. The trial court admitted the 2006 misdemeanor indecent
exposure docket, the only available document, as proof of the predicate offense
required for the felony indecent exposure charge. The trial court also admitted
testimony from witness Erika Miller regarding the incident to prove motive, intent,
knowledge, and lack of accident or mistake. The jury convicted Conaway as charged.
Conaway appealed, and this court reversed and remanded for a new trial
because the trial court erroneously admitted prejudicial propensity evidence by
admitting Miller’s testimony. 2 We held that without Miller’s testimony, the State lacked
evidence to support a guilty verdict on the special allegation of sexual motivation.
On remand, the State dismissed the allegation of sexual motivation and charged
Conaway with felony indecent exposure. The State again sought to introduce the
docket from the 2006 case in order to prove that a prior conviction existed. RCW
9A.88.010(2)(c). Conaway moved to exclude the docket. The court admitted the
1 The State amended the information to include a charge for communication with a minor for
immoral purposes. Then, the State amended the information to dismiss this charge and added a special
allegation of sexual motivation to the remaining indecent exposure charge.
2 State v. Conaway, No. 77107-8-I, slip op. at 4 (Wash. Ct. App. Dec. 3, 2018) (unpublished),
http://www.courts.wa.gov/opinions/pdf/771078.PDF.
-2-
No. 80214-3-I/3
docket, finding that the dismissed conviction qualified as a conviction for the prior
conviction element of felony exposure. The court instructed the jury that to convict the
defendant, the State must prove the following elements:
(1) That on or about June 27, 2016, the defendant made an open and
obscene exposure of the defendant’s person;
(2) That the defendant acted intentionally;
(3) That the defendant knew that such conduct was likely to cause
reasonable affront or alarm;
(4) That the defendant had been previously convicted of indecent
exposure; and
(5) That this act occurred in the State of Washington.
Jury instruction 10 stated: “a ‘conviction’ includes a defendant’s plea of guilty followed
by a deferred sentence and dismissal.”
The jury found Conaway guilty as charged. Conaway appeals.
ANALYSIS
A. Sufficiency of the Evidence
Conaway first argues that we should reverse his conviction because the State
failed to provide sufficient evidence of his prior conviction.
The State must prove every element of the charged offense beyond a reasonable
doubt. State v. Tongate, 93 Wn.2d 751, 753, 613 P.2d 121 (1980). “To determine
whether sufficient evidence supports a conviction, we view the evidence in the light
most favorable to the prosecution and determine whether any rational fact finder could
have found the elements of the crime beyond a reasonable doubt.” State v. Homan,
181 Wn.2d 102, 105, 330 P.3d 182 (2014). Our review is limited to whether substantial
evidence supports the findings of fact and, if so, whether the findings support the
conclusions. Homan, 181 Wn.2d at 106. “Substantial evidence is evidence sufficient to
-3-
No. 80214-3-I/4
persuade a fair-minded, rational person of the finding’s truth.” State v. Stewart, 12 Wn.
App. 2d 236, 240, 457 P.3d 1213 (2020). A claim of insufficient evidence admits the
truth of the State’s evidence and all reasonable inferences drawn therefrom. State v.
Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019).
“A person is guilty of indecent exposure if he or she intentionally makes any open
and obscene exposure of his or her person or the person of another knowing that such
conduct is likely to cause reasonable affront or alarm.” RCW 9A.88.010(1). Indecent
exposure is a felony if the defendant has previously been convicted of indecent
exposure. RCW 9A.88.010(2)(c).
Conaway first argues that because his guilty plea followed by a deferred
sentence is not a conviction under the charging statute, the State did not present
sufficient evidence of his prior conviction. 3 We review a question of statutory
interpretation de novo. State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010).
RCW 9.94A.030(9) defines conviction as an adjudication of guilt, including “a verdict of
guilty, a finding of guilty, and acceptance of a plea of guilty.” A deferred sentence is a
“conviction served” for purposes of the Sentencing Reform Act (SRA). State v. Harper,
50 Wn. App. 578, 580, 749 P.2d 722 (1988). Washington case law dictates that a
deferred sentence is a conviction.
In State v. Cooper, 176 Wn.2d 678, 685, 294 P.3d 704 (2013), our Supreme
Court held that a defendant’s deferred convictions in Texas are convictions for the
purposes of calculating the defendant’s offender score, concluding that “the plain
3 The State attempts to use the phrase “statutory validity” in State v. Gray, 134 Wn. App. 547,
557, 138 P.3d 1123 (2006), to argue that we are precluded from reaching this argument, but Gray does
not concern statutory interpretation. Conaway did object to the admission of the docket as evidence of
his prior conviction, thereby preserving the error on appeal.
-4-
No. 80214-3-I/5
language of RCW 9.94A.030(9) includes acceptance of a guilty plea as a ‘conviction’ for
offender score and sentencing purposes.” The court held that in Washington, a
defendant’s acceptance of a guilty plea is an adjudication of guilt. In distinguishing
Texas law, the court held that after a deferred sentence is vacated, “the conviction may
be used only as an element of a crime to determine guilt in a subsequent prosecution.”
Cooper, 176 Wn.2d at 682.
In State v. Haggard, 195 Wn.2d 544, 551, 461 P.3d 1159 (2020), the Supreme
Court rejected the argument that once the defendant’s guilty plea was withdrawn and
the not guilty plea entered as the result of a deferred sentence, the conviction is
dissolved for all purposes. The court held that legislative elements support the
conclusion that a dismissed conviction remains an SRA conviction. Haggard, 195
Wn.2d at 551. While Haggard concerned sentencing, the court still held that a deferred
sentence and dismissal does not does not invalidate or erase the initial finding of guilt. 4
Haggard, 195 Wn.2d at 553.
Despite Conaway’s contention that the court used the term “conviction”
improperly because this was not a sentencing issue, the court properly applied the SRA
definition to this case. The legislature specifically defined the term conviction. “It is an
axiom of statutory interpretation that where the legislature defines a term, we will use
that definition.” State v. LaPointe, 1 Wn. App. 2d 261, 269, 404 P.3d 610 (2013). The
RCW 9.94A.030(9) definition of conviction is used consistently by our courts to establish
4 Conaway relies on the quote “unlike former RCW 9.95.240, dismissal under RCW 3.66.067
does not contain language allowing future prosecutions to use a previously dismissed conviction.”
Haggard, 195 Wn.2d at 552. He ignores the analysis where the court specifies that the SRA focuses on
the initial finding of guilt and rejected the defendant’s argument. Haggard, 195 Wn.2d at 553.
-5-
No. 80214-3-I/6
the existence of a prior conviction as an element of a current felony. See State v.
Benitez, 175 Wn. App. 116, 123, 302 P.3d 877 (2013) (the court applied the SRA
definition of conviction to establish that a defendant’s juvenile adjudication is a prior
conviction for an indecent exposure charge); LaPointe, 1 Wn. App. 2d at 269 (the court
used the SRA definition of conviction to predicate offenses for a vehicle prowling
statute).
Because under the plain language of RCW 9.94A.030(9) a deferred sentence is
a conviction, the State’s proof of this deferred sentence was sufficient to establish the
predicate offense element of indecent exposure. The State presented a certified copy
of the 2006 docket of Conaway’s prior indecent exposure charge, demonstrating that
Conaway entered a guilty plea on July 18, 2007. The court entered a judgment and a
deferred sentence for 12 months, and then dismissed the charge after Conaway’s
compliance. In addition, the State presented testimony from Island County District
Court Clerk Linda Bass, who certified the docket and explained that the docket
appeared typical of when a defendant pleads guilty, receives a deferred sentence, and
completes it. The docket and Bass’s testimony established that Conaway entered a
guilty plea followed by a deferred sentence, therefore, sufficient evidence supported the
jury’s finding that Conaway was previously convicted of indecent exposure.
B. Jury Instruction
Conaway next argues that jury instruction 10, which instructed the jury that a
conviction includes a defendant’s plea of guilty followed by a deferred sentence and
dismissal, was an improper comment on the evidence by the trial court.
-6-
No. 80214-3-I/7
We review a jury instruction de novo, evaluating it in the context of the
instructions as a whole. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
Judges declare the law for the jury. State v. Boss, 167 Wn.2d 710, 720, 223 P.3d 506(2009). The judge is prohibited from instructing a jury that matters of fact have been
established as a matter of law. State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321(1997). “Any remark that has the potential effect of suggesting that the jury need not
consider an element of an offense could qualify as judicial comment.” State v. Levy,
156 Wn.2d 709, 721, 132 P.3d 1076 (2006). A jury instruction is not a comment on the
evidence if it is an accurate statement of the law and it is supported by sufficient
evidence. State v. Stearns, 61 Wn. App. 224, 231, 810 P.2d 41 (1991).
Our appellate courts have held that while the existence of a prior
conviction is an essential element that must be proved to the jury beyond
a reasonable doubt, the question of whether a prior conviction qualifies as
a predicate offense for purposes of elevating a crime from a misdemeanor
to a felony is a threshold question of law for the court to decide.
State v. Chambers, 157 Wn. App. 465, 477, 237 P.3d 352 (2010).
The court’s instruction to the jury was both an accurate statement of the law as
well as a threshold question that the court needed to decide. Despite Conaway’s
contention to the contrary, the definition of conviction includes a deferred sentence as a
matter of law. The cases Conaway relies on are not persuasive. See Becker, 132
Wn.2d at 64 (the court erred by classifying the Youth Education Program (YEP) as a
school in the jury instructions when whether YEP constituted a school was a contested
issue of fact); State v. Painter, 27 Wn. App. 708, 714, 620 P.2d 1001 (1980) (the court
misstated the law when it restricted the definition of great bodily harm, therefore, the
“court clearly indicated to the jury that the evidence presented at trial was insufficient to
-7-
No. 80214-3-I/8
support the theory of self-defense”). Here, the court did not resolve a factual issue, or
misstate the law. For these reasons, jury instruction 10 was not an improper judicial
comment.
C. Jury Inquiry
Conaway argues finally that the trial court failed to make the law manifestly clear
to the jury when responding to the jury inquiry.
During deliberations, the jury asked “When the jury makes a decision on
Instruction 7, Element 4 (being yes or no), he was convicted of indecent exposure. Can
the jury use this decision as circumstantial evidence?” The trial court instructed the jury
to refer to jury instruction 11, the limiting instruction. 5 Conaway contends that the court
erred when it did not answer “no,” to the inquiry, despite telling the parties that the
answer was no.
“Whether to give further instructions in response to a request from a deliberating
jury is within the discretion of the trial court.” State v. Becklin, 163 Wn.2d 519, 529, 182
P.3d 944 (2008). Conaway cannot demonstrate that the court abused its discretion.
The court considered whether instructing the jury to refer to the instructions as a whole,
to refer to instruction 11 specifically, or to include “no,” in the response. Our Supreme
Court has held that a trial court does not abuse its discretion by instructing the jury to
refer to their instructions rather than providing a yes or no answer. State v. Ng, 110
5 Instruction 11 states:
Certain evidence has been admitted in this case for only a limited purpose. This
evidence consists of a certified district court docket and may be considered by you only
for the purpose of determining whether the defendant was previously convicted of
indecent exposure. You may not consider it for any other purpose. Any discussion of the
evidence during your deliberations must be consistent with this limitation.
-8-
No. 80214-3-I/9
Wn.2d 32, 42, 750 P.2d 632 (1988). The trial court did not abuse its discretion in its
response to the jury inquiry.
Affirmed.
WE CONCUR:
-9-