State Of Washington, Resp-cross App v. Nicholas Salih, App-cross Resp ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 80388-3-I
)
Respondent, )
)
v. )
)
NICHOLAS JASSIM SALIH, ) UNPUBLISHED OPINION
)
Appellant. )
)
VERELLEN, J. — Nicholas Salih challenges his conviction for criminal
impersonation as lacking substantial evidence. Because the record shows no
evidence Salih acted in his assumed identity, we accept the State’s concession
that the conviction must be reversed.
Salih also challenges his conviction for possession of a controlled
substance with intent to manufacture or deliver, arguing the court erred by refusing
to let his defense investigator testify as an impeachment witness. Because the
defense investigator would have presented only cumulative evidence, the court did
not abuse its discretion.
Salih also contends that the community custody fee provision should be
stricken. Because community custody fees are discretionary, remand is
appropriate for the trial court to reconsider the fee provision.
No. 80388-3-I/2
While this appeal was pending, Salih filed a motion requesting this court to
remand for resentencing in light of our Supreme Court’s recent decision in State v.
Blake.1 The State concedes this matter should be remanded for resentencing.
We agree. Therefore, we reverse the conviction for first degree criminal
impersonation, affirm the conviction for possession of a controlled substance with
intent to manufacture or deliver, and remand for resentencing and further
proceedings consistent with this opinion.
FACTS
One evening, Callie Sheriff and Nicholas Salih drove to the parking lot of
the Fred Meyer at Alderwood. Veronica Johannes, Fred Meyer’s loss prevention
manager, was monitoring the store’s surveillance cameras when she noticed
“suspicious activity” in the vehicle.2 Johannes saw “a zippered pouch that was
being dug into[,] some fire in the car[,] and tubes that were being inhaled.”3 She
also watched Salih contact two other vehicles in the parking lot. Johannes called
the police.
Snohomish County Deputy Sheriff William Binkley responded to the
incident. Salih told Officer Binkley that his name was “Sean M. Reeves” but
admitted his real name soon after. Salih and Sheriff were arrested for outstanding
1 State v. Blake, No. 96873-0, slip op. at 29-30 (Wash. Feb. 25, 2021),
http://www.courts.wa.gov/opinions/pdf/968730.pdf.
2 Report of Proceedings (RP) (July 30, 2019) at 250.
3 Id.
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warrants. Deputy Binkley searched Salih incident to arrest and found $6,400 in
cash.
Upon searching the vehicle, Deputy Binkley found two plastic bags with
heroin, one plastic bag with unidentified pills, and other drug paraphernalia. Salih
was charged with first degree criminal impersonation and possession of a
controlled substance with intent to manufacture or deliver.
At trial, the defense counsel sought to call the defense’s investigator, Todd
Reeves, to testify, despite not disclosing him as a witness before trial. Defense
counsel sought to rebut testimony from Johannes about the quality of the video
surveillance with an inconsistent statement she made to Reeves. The court
prohibited defense counsel from calling Reeves because on cross-examination,
Johannes admitted her statements were inconsistent by acknowledging she
misunderstood the investigator’s question. The court explained that there was
“really nothing to rebut.”4
The jury found Salih guilty. Salih’s judgment and sentence contained a
community custody fee provision. Salih appeals.
ANALYSIS
I. Criminal Impersonation
To convict a defendant of first degree criminal impersonation, the State
must prove the defendant acted in his assumed identity.5 Salih argues that there
4 RP (July 31, 2019) at 355.
5 RCW 9A.60.040(1)(a).
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was insufficient evidence to support his conviction for first degree criminal
impersonation. Because there was insufficient evidence of the essential element
that Salih acted in his assumed identity, we accept the State’s concession that
Salih’s conviction for first degree criminal impersonation should be reversed.6
II. Impeachment Evidence
As to the possession with intent to deliver charge, Salih contends that the
trial court erred by prohibiting defense counsel from impeaching Johannes with
Reeves’ testimony.
We review a trial court’s evidentiary rulings for abuse of discretion.7 A trial
court abuses its discretion when its decision is based upon untenable grounds or
reasons.8 “Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate the witness
thereon, or the interests of justice otherwise require.”9 Relevant evidence can be
excluded if its probative value is substantially outweighed by the “needless
presentation of cumulative evidence.”10 “‘Cumulative evidence is additional
6 Id.; Resp’t’s Br. at 6-8. In the alternative, Salih argues that the to-convict
jury instruction on his charge of first degree criminal impersonation was insufficient
and, as a result, his conviction should be reversed. Because we accept the
State’s concession that Salih’s criminal impersonation charge should be reversed
for insufficient evidence, we need not address this argument.
7 State v. Scherf, 192 Wn.2d 350, 387, 429 P.3d 776 (2018).
8 Id.9 ER 613(b).
10 ER 403.
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evidence of the same kind to the same point.’”11 “Where a witness admits to the
statement at issue, a trial court may reasonably determine that permitting extrinsic
evidence” would be cumulative.12
Johannes testified on direct examination that the surveillance video was
“much clearer” when she watched it live than when the recording was shown at
trial.13 Johannes previously told the defense investigator that the quality of the
video surveillance was “actually really good.”14 Salih wanted to call Reeves to
impeach Johannes with her inconsistent statement. But, on cross examination,
when asked whether she told the investigator the surveillance was “actually really
good,” Johannes admitted her statements were inconsistent.15 Johannes testified,
“I know that watching it live is much better than a recording. I suppose it would
[refresh my recollection to view a transcript of my response to that question], but I
think I misunderstood the [investigator’s] question.”16
The court relied upon this admission and noted, “In her testimony
yesterday, [Johannes] said . . . ‘I misunderstood the question.’”17 The court
11
State v. Williams, 96 Wn.2d 215, 223-24, 634 P.2d 868 (1981) (quoting
Roy v. Snyder, 100 Wash. 311, 314, 170 P. 1027 (1918)).
12 State v. Dixon, 159 Wn.2d 65, 76, 147 P.3d 991 (2006).
13 RP (July 30, 2019) at 268-86.
14 Id. at 302-03; RP (July 31, 2019) at 353.
15 RP (July 30, 2019) at 302-03; RP (July 21, 2019) at 353.
16 RP (July 30, 2019) at 303.
17 RP (July 31, 2019) at 355-56.
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recognized there is “really nothing to rebut.”18 Because Johannes essentially
admitted to making the inconsistent statement by acknowledging she
misunderstood the question, the trial court did not abuse its discretion by
concluding that Reeves’ testimony would be cumulative.19
In the alternative, Salih argues that his counsel was ineffective for failing to
disclose Reeves as a witness before trial.
We review a claim of ineffective assistance of counsel de novo.20 To
succeed on a claim of ineffective assistance of counsel, a defendant must prove
that his counsel’s performance was deficient and prejudiced his case.21 If defense
counsel’s decisions “can be characterized as legitimate trial strategy or tactics,
performance is not deficient.”22 Prejudice requires a showing of a reasonable
probability that the outcome would have been different but for the deficient
performance.23
Salih fails to establish deficient performance. Defense counsel intended to
call Reeves as a rebuttal witness, and rebuttal witnesses need not be disclosed
18 Id. at 355.
19 Salih also argues that the exclusion of Reeves’ testimony was “a harsh
penalty” and “could be exacted only after the trial court expressly considered the
three factors” under Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d
1036 (1997). Appellant’s Br. at 27-29. But the record does not establish that the
trial court excluded Reeves’ testimony as a penalty. RP (July 31, 2019) at 353-56.
Therefore, Salih provides no authority that Burnet is applicable.
20 State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
21 State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
22 State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).
23 Id. at 862.
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before trial.24 And even if defense counsel’s performance was deficient, Salih fails
to establish prejudice. If defense counsel had disclosed Reeves as a witness
before trial, his testimony would still be cumulative evidence. Because there is no
reasonable probability that the outcome of Salih’s case would have been different
if defense counsel had disclosed Reeves as a witness before trial, Salih’s claim for
ineffective assistance of counsel fails.
III. Supervision Fees
Salih contends that remand is necessary to strike the requirement that he
pay the costs of community custody. Specifically, he contends that he was found
indigent at the time of sentencing and the court waived all discretionary legal
financial obligations, but as a condition of community custody, the court ordered
him to “pay supervision fees as determined by the [Department of Corrections].”25
Because supervision fees are discretionary,26 remand is appropriate for the trial
court to reconsider the community custody fee provision.
While Salih’s appeal was pending before this court, our Supreme Court
declared Washington’s strict liability drug possession statute, RCW 69.50.4013,
void for violating the due process clauses of our state and federal constitutions.27
24 State v. Finnegan, 6 Wn. App. 612, 625, 495 P.2d 674 (1972).
25 Clerk’s Papers at 31.
26
State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1199, review denied,
195 Wn.2d 1022 (2020).
27 Blake, slip. op. at 29-30.
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Following the decision in State v. Blake,28 Salih filed a motion in lieu of a
supplemental brief, requesting that we remand for resentencing in view of a prior
conviction for simple possession that impacts his offender score. The State filed a
response conceding that this court should remand for resentencing. We accept
the State’s concession.
Therefore, we affirm in part, reverse in part, and remand for resentencing
consistent with Blake and further proceedings consistent with this opinion.
WE CONCUR:
28 No. 96873-0, slip op. at 29-30.
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