State of Washington v. Victor James Mathis ( 2021 )

FILED
MARCH 2, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36816-5-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
VICTOR JAMES MATHIS, )
)
Appellant. )
LAWRENCE-BERREY, J. — Victor James Mathis challenges his first degree perjury
conviction and sentence. The perjury conviction arises out of testimony Mathis gave
during his 2018 trial in which he was charged with two counts of first degree unlawful
possession of a firearm (UPFA). In that trial, Mathis testified he had never been
convicted of any crimes in Georgia and that the Georgia crimes the State asserted he
committed were actually committed by his identical twin half-brother, Victor Lewis
James. We affirm his conviction but remand for resentencing.
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State v. Mathis
FACTS
Firearms arrest and charges
In January 2018, police responded to a disorderly conduct call in Goldendale,
Washington. Officers contacted Victor James Mathis, who permitted them to seize a .30-
06 rifle from his home. Later that day, police learned of Mathis’s criminal history and
obtained a search warrant. The next day, during a search of Mathis’s home, police found
another weapon. After advising him of his Miranda1 rights, Sergeant Jay Hunziker told
Mathis that he was unable to lawfully possess firearms due to two Georgia felony
convictions. Mathis initially denied the convictions, but later said he had been in custody
for those crimes but was released when authorities learned his half-brother had used his
name. Sergeant Hunziker advised Mathis that his criminal history contained his
identifying information. Mathis then admitted to the sergeant that he was a felon and had
been convicted of armed robbery and burglary in Georgia and that he knew he was not
allowed to possess firearms. Mathis was arrested and charged with two counts of first
degree UPFA.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Firearms trial
In August 2018, Mathis went to trial on his firearms charges. Mathis testified in
his own defense. Under oath, he stated he had never gone by another name, had never
been convicted of crimes in Georgia, and had never been to prison. Yet criminal records
from Georgia showed that a Victor Lewis James had been convicted of armed robbery.
Mathis explained that Victor Lewis James was his identical twin half-brother from
another mother and that both he and James were born on the same day.
The jury found Mathis guilty of two counts of first degree UPFA. Two weeks
later, the trial court sentenced Mathis to 102 months for each count, running them
concurrently.2
Perjury charge and trial
After the firearms trial, the sheriff’s office began investigating the identity of
Victor Lewis James, Mathis’s purported twin half-brother. Detectives searched Georgia
Vital Records and they were unable to locate the birth of Victor Lewis James; they found
2
Mathis appealed his firearms convictions to this court, arguing the State brought
insufficient evidence to prove the essential element of a constitutionally valid predicate
felony conviction. This court affirmed those convictions in an unpublished opinion.
State v. Mathis, No. 36296-5-III (Wash. Ct. App. Aug. 20, 2019) (unpublished)
http://www.courts.wa.gov/opinions/pdf/362965_unp.pdf, review denied, 194 Wash. 2d
1019, 455 P.3d 124 (2020).
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only Victor James Mathis. Detectives obtained information on some of the prior Georgia
convictions, including a Georgia Department of Corrections fingerprint card that listed
Victor Lewis James as the person convicted.
Jody Dewey, the State’s forensic analyst, compared the fingerprints on the Georgia
fingerprint card with those taken during Mathis’s booking and his judgment and
sentencing. The three sets of fingerprints all had the same pattern types and the same
right thumb fingerprint.
The State charged Mathis with one count of perjury for material misstatements he
made during his trial testimony. The State alleged Mathis lied under oath when “denying
he was a convicted felon or that he had previously gone under a different name.” Clerk’s
Papers (CP) at 124.
Mathis elected to have the perjury charge tried to the bench. The State called
Sergeant Hunziker, the arresting officer from the January 2018 firearms arrest. Sergeant
Hunziker explained that after he arrested Mathis and read him his rights, Mathis said he
had been convicted but was released from custody because his half-brother had used his
name. But when the sergeant explained to Mathis the information in his criminal history
included his birth date, FBI3 number, fingerprint classifications, and known aliases,
3
Federal Bureau of Investigation.
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Mathis admitted he was a convicted felon and had been convicted of armed robbery and
burglary in Georgia.
The State offered a fingerprint card certified by the Georgia Department of
Corrections. Ex. 2.4 The fingerprint card contained identifying information, a box
stamped “ADDITIONAL SENTENCE,” a box marked “CHARGE,” and a box marked “FINAL
DISPOSITION.” The following information was typed in the “CHARGE” box: “POSS
FIREARM CONVCT FELON (91385): POSS OF CERTAIN WEAPONS (91385): POSS OF FIREARM
DUR CRIME (91385): AG AGRAVATED ASSAULT (91385): ARMED ROB*.” Ex. 2. The
following information was typed in the “FINAL DISPOSITION” box: “5Y CT 10 CC: 5Y CT 9
CC: 5Y CT 8 CC: 10Y 2 CTS CC: 20Y SV 15Y B/P CT 1.” Ex. 2.
The parties disputed the admissibility of the fingerprint card. After some
discussion, the court found it was properly authenticated, and the hearsay exception for
judgment of a previous conviction applied:
In reviewing the documents it does appear that these are pursuant to
pleas based upon page—the third page of Exhibit 2 indicates that the State
v. Victor Lewis James was concluded by plea, negotiated guilty on Counts 1
through 10. There was a prosecution order on Count 11. That’s why I was
trying to figure out what that was . . . . that appears to be the recidivist count
pursuant to the special presentation that was provided in here. The
document does then contain essentially the information as to all eleven
4
This exhibit is attached as an appendix to this opinion.
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State v. Mathis
counts, as well as the judgment and sentence—final disposition, I guess is
what it’s called, in the State of Georgia. . . .
So, with that said, I do change my position with regards to Exhibit
Number 2 and do find that Exhibit 2 is admissible.[5]
Report of Proceedings (RP) at 94-95.
The court entered the following findings of fact, which are not disputed on appeal:
11. . . . Mathis . . . admitted to Sergeant Hunziker that he was in fact
a convicted felon and had been convicted of the charges of armed robbery
and burglary in Georgia. . . .
....
14. . . . Mathis testified under oath at [the firearms] trial that he did
not go by any other name, that he had not been convicted of any crimes out
of Georgia, that he had a brother, from another mother but same father, with
the name of Victor Lewis James. Mathis testified it was his brother Victor
Lewis James that had been convicted in Georgia of burglary and armed
robbery and again that he never been convicted. . . .
....
20. Dewey determined that [the Georgia fingerprint card for
James and the Washington fingerprint cards for Mathis] all had the same
pattern types.
21. Dewey further determined that all 3 fingerprint cards/prints
contained the same right thumb fingerprint.
22. Dewey testified that no two fingerprints are the same.
CP at 17-19.
5
Because of an earlier objection, the State had limited exhibit 2 to a two-page
submission. See RP at 36-37. The trial court’s reference, earlier in this quote, to the third
page was therefore error. Because the State had limited its submission to two pages, this
is what was admitted.
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From these and other findings, the trial court entered the following conclusions of
law:
9. Mathis [sic] testimony under oath at his trial on the [first
degree UPFA] charges that he had never been convicted of the underlying
predicate crimes for armed robbery and burglary nor convicted of any
crimes are material statements.
10. Sergeant Hunziker was a credible witness that provided
testimony that positively and directly contradicted the testimony of Mathis,
when Sergeant Hunziker testified that Mathis advised him that he had been
previously convicted of the armed robbery and burglary charges out of
Georgia.
11. Jody Dewey of the Washington State Patrol Crime Lab
provided testimony that the fingerprints of Victor James Mathis were the
same as the individual convicted in Georgia for armed robbery and
burglary. This testimony was independent testimony that corroborated the
testimony of Sergeant Hunziker and clearly contradicted the testimony of
Mathis provided under oath that he was not the Victor Lewis James that
was convicted of those offenses in Georgia.
12. The testimony provided in this case was of such a character as
to clearly turn the scale and overcome the oath of the defendant and the
legal presumption of his innocence.
13. Mathis knowingly made a materially false statement, knowing
the statement to be false, under oath in an official proceeding when he
testified falsely that he had never been convicted of the crime[s] of burglary
and armed robbery out of Georgia.
CP at 21-22.
From these, the trial court determined that the State had proved beyond a
reasonable doubt that Mathis committed perjury in the first degree.
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Perjury sentencing
Defense counsel stipulated that Mathis’s offender score was 9. The court then
said:
I do find that the offender score of nine is appropriate based upon the
stipulation of the parties and also with regards to viewing Mr. Mathis’
criminal history, both for those offenses from the unlawful possession of
firearm case in 18-1-17-20 points as well as the offenses out of Georgia
being comparable offenses after doing both a legal and a factual analysis of
those offenses. I do find that they are comparable offenses for making an
offender score of nine in this case, standard range seventy-two to ninety-six
months.
RP at 120. Defense counsel asked for Mathis’s perjury sentence to run concurrent with
his firearm sentence. The prosecutor disagreed and argued that a concurrent sentence
would constitute an exceptional sentence downward. The trial court agreed and
sentenced Mathis to 84 months, to run consecutive with his 102 month firearm sentence.
Mathis timely appeals.
ANALYSIS
PERJURY: SUFFICIENCY OF THE EVIDENCE
Mathis contends the trial court erred in finding that the State’s fingerprint evidence
and expert testimony were sufficient to meet the higher standard of proof for perjury
convictions. He alternatively argues the fingerprint card was inadmissible hearsay.
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No. 36816-5-III
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Sufficiency of evidence
The State must prove every element of a crime beyond a reasonable doubt. State v.
Byrd, 125 Wash. 2d 707, 713, 887 P.2d 396 (1995). Where sufficient evidence does not
support a conviction, it cannot stand. State v. Hummel, 196 Wash. App. 329, 353, 383 P.3d
592 (2016). Insufficient evidence claims admit the truth of the State’s evidence and all
reasonable inferences drawn therefrom. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d
1068 (1992).
“A person is guilty of perjury in the first degree if in any official proceeding he or
she makes a materially false statement which he or she knows to be false under an oath
required or authorized by law.” RCW 9A.72.020(1). The State must present the
testimony of at least one credible witness that directly contradicts the defendant’s oath
and another direct witness or “‘corroborating circumstances established by independent
evidence’” of such a character to overcome the defendant’s oath and presumption of his
innocence. State v. Buchanan, 79 Wash. 2d 740, 744, 489 P.2d 744 (1971) (quoting State v.
Wallis, 50 Wash. 2d 350, 353, 311 P.2d 659 (1957)); see also State v. Olson, 92 Wash. 2d 134,
136, 594 P.2d 1337 (1979). “The quantum of proof necessary to sustain a conviction of
perjury is the highest known to the law, excepting only treason.” Buchanan, 79 Wash. 2d at
744.
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No. 36816-5-III
State v. Mathis
One credible witness directly contradicting the defendant’s oath
At his firearms trial, Mathis testified under oath that he had never been convicted
of any crimes out of Georgia. He testified it was his twin half-brother, not him, who had
been convicted in Georgia of burglary and armed robbery.
Sergeant Hunziker directly contradicted this. He testified that Mathis, after
waiving his Miranda rights, “admitted to me he was a convicted felon and was convicted
of armed robbery and burglary in Georgia.” RP at 54. This testimony is sufficient to
prove the first part of what the State was required to prove.
Independent evidence of corroborating circumstances
The State sought to prove the second part with documentary proof that Mathis had
been convicted in Georgia of armed robbery and burglary. The State had a certified copy
of the Georgia Department of Corrections fingerprint card admitted for this purpose.
Mathis argues the fingerprint card was insufficient evidence because it does not
prove the existence of a prior felony conviction and because it was hearsay. We address
the hearsay issue first.
The card was admissible hearsay
The trial court admitted the fingerprint card under ER 803(a)(22) as a judgment of
a previous conviction. We agree with Mathis that the fingerprint card is not a judgment.
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No. 36816-5-III
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Nevertheless, a trial court’s ruling on the admissibility of evidence will not be disturbed if
it is sustainable on an alternate ground. State v. St. Pierre, 111 Wash. 2d 105, 119, 759 P.2d
383 (1988).
The State argues the card was admissible under ER 803(a)(8) as a certified copy
of a public record. To be admissible under this hearsay exception, the document must
(1) contain facts rather than conclusions that involve judgment, discretion or the
expression of an opinion, (2) relate to facts that are of a public nature, (3) be retained for
public benefit, and (4) be authorized by statute. State v. Monson, 113 Wash. 2d 833, 839,
784 P.2d 485 (1989) (quoting Steel v. Johnson, 9 Wash. 2d 347, 358, 115 P.2d 145 (1941)).
We agree that the fingerprint card meets these criteria. See GA. CODE ANN. § 42-2-11
(directing Georgia Board of Corrections to promulgate administrative rules); GA. COMP.
R. & REGS. 125-2-4-.05 (Georgia Department of Corrections must maintain inmate file
records).
Mathis does not dispute that the fingerprint card is admissible under ER 803(a)(8).
Rather, citing State v. Ferguson, 100 Wash. 2d 131, 138, 667 P.2d 68 (1983), he argues the
State may not argue a different evidentiary ground than argued to the trial court.
However, Ferguson stands for the proposition that an appellate court will not reverse if a
trial court admits evidence that could have been excluded had trial counsel objected on
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No. 36816-5-III
State v. Mathis
the correct evidentiary basis. Id. Ferguson does not preclude us from affirming the
admissibility of evidence on an alternate ground.
Evidence of “serious offense” conviction
Mathis argues the fingerprint card is insufficient to establish he was convicted of
any crime. We disagree.
Toward the top left, the fingerprint card bears a stamp that reads, “ADDITIONAL
SENTENCE.” Ex. 2. An inch or so below this, a section is entitled, “FINAL DISPOSITION.”
Ex. 2. In that section, various sentences are paired with various counts. A person is not
sentenced unless convicted. We note there are five charges listed in the charges section
and five sentences listed in the disposition section. The trial court correctly concluded the
fingerprint card reflected criminal convictions.
Mathis next argues the fingerprint card omits any evidence he was convicted of
burglary. We agree, but it does show Mathis was convicted of armed robbery. The
question then is whether Mathis’s first degree perjury conviction can stand without
evidence he was convicted of burglary. It can.
As mentioned previously, first degree perjury requires proof that Mathis made a
“materially false statement” while under oath. RCW 9A.72.020(1). There is no question
that Mathis made a false statement while under oath. Mathis testified in his firearms trial
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No. 36816-5-III
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that he had never been convicted of any crimes out of Georgia. He testified it was his
twin half-brother, not him, who had been convicted in Georgia of burglary and armed
robbery. The fingerprint card showed that Mathis lied. It showed he had been convicted
of at least five crimes, one of which was armed robbery. The only question is whether the
false statement was material.
A “materially false statement” means “any false statement . . . which could have
affected the course or outcome of the proceeding.” RCW 9A.72.010(1). Had the jury
believed Mathis—that it was his twin half-brother, not him, who had been convicted of
crimes in Georgia—this certainly “could have” affected the outcome of the firearms trial.
In fact, it would have. Without the Georgia convictions, the State could not have proved
the first degree UPFA charges.
CONSECUTIVE SENTENCING
Mathis contends the trial court erred by ordering his perjury sentence to run
consecutive to his firearms sentence. The State concedes this issue and recommends
resentencing consistent with RCW 9.94A.589(3). For the reasons set forth below, we
agree.
The sentencing statute at issue provides:
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No. 36816-5-III
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[W]henever a person is sentenced for a felony that was committed while the
person was not under sentence for conviction of a felony, the sentence shall
run concurrently with any felony sentence which has been imposed by any
court in this or another state or by a federal court subsequent to the
commission of the crime being sentenced unless the court pronouncing the
current sentence expressly orders that they be served consecutively.
Former RCW 9.94A.589(3) (2015). In other words, the statute directs concurrent
sentencing “when (1) a person who is ‘not under sentence of a felony’ (2) commits a
felony and (3) before sentencing (4) is sentenced for a different felony.” State v. Shilling,
77 Wash. App. 166, 175, 889 P.2d 948 (1995) (quoting former RCW 9.94A.400(3)
(1990)6). The trial court has discretion to order a current sentence to run concurrently
with, or consecutive to, a felony sentence previously imposed. Id. at 175-76. But only an
express order of consecutive sentencing can overcome the statutory presumption of
concurrent sentencing. Id. at 176.
Mathis committed perjury on August 9, 2018, during his trial for two counts of
unlawful possession of a firearm. He was sentenced for those crimes on August 31,
2018. As such, he was not yet serving a felony sentence at the time of his perjury and
RCW 9.94A.589(3) applies. For this reason, we remand for resentencing.
6
Former RCW 9.94A.400 was recodified as RCW 9.94A.589 by LAWS OF 2001,
ch. 10, § 6.
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No. 36816-5-III
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OFFENDER SCORE
Mathis contends he: received ineffective assistance of counsel when his attorney
agreed to his offender score of 9 at sentencing instead of challenging the comparability of
several out-of-state convictions. He asks that we, for the first time on appeal, perform the
comparability analysis of those out-of-state convictions.
The State responds ~hat the comparability analysis of Mathis' s prior out-of-state
convictions should be perfprmed at resentencing. We agree. The trial court is the best
venue for conducting a thorough evidentiary hearing. We remand for this purpose.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
j
WE CONCUR:
Pennell, C.J.
,.R_ I c..t Fearing, J.
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Appendix
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State v. Mathis
Appendix
17