State of Washington v. Jesse Lee Criswell ( 2018 )

FILED
DECEMBER 18, 2018
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. 35581-1-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JESSE LEE CRISWELL, )
)
Appellant. )
FEARING, J. — Jesse Criswell assigns error to the amount of restitution imposed
on him after his convictions for forgery and theft. Because the sentencing court lowered
the amount of restitution after the filing of the notice of appeal, we dismiss the
assignment of error as moot. We also reject Jesse Criswell’s challenge to the jury verdict
based on juror bias.
No. 35581-1-III
State v. Criswell
FACTS
Hawk Fuel, a gas station in Ephrata, remains open all night. On the morning of
May 2, 2016, station manager Ida Cruz visited the station to account for money received
during the graveyard shift. Cruz discovered nine counterfeit $50 bills.
Ida Cruz reviewed surveillance video for the entirety of the April 30-May 1
graveyard shift to discern who presented the counterfeit bills. Cruz viewed Jesse
Criswell buying smoking devices and other miscellaneous items with eight $50 bills.
While the Hawk Fuel cashier bagged the purchased items, Criswell grabbed some hats
and paid for the additional merchandise with another $50 bill.
On May 3, 2016, Ida Cruz returned to Hawk Fuel to again gather cash from the
tills. Cruz found a tenth counterfeit $50 bill. Cruz reviewed additional video footage,
which showed Jesse Criswell visiting the gas station on a separate occasion and receiving
change for a $50 bill.
PROCEDURE
The State of Washington charged Jesse Criswell with forgery and theft in the third
degree. By amended information, the State adjusted the charges to three counts of
forgery committed on May 1, 2016, an additional count of forgery on May 2, and one
count of third degree theft on May 1. Prior to trial, the State filed a restitution report that
documented a loss of $500 to Hawk Fuel. At the close of the State’s case at trial, the
prosecution dismissed one forgery charge from May 1, and the forgery charge from May
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No. 35581-1-III
State v. Criswell
2. The jury convicted Jesse Criswell of the remaining two forgery counts and the third
degree theft charge.
At sentencing, the trial court found Jesse Criswell’s forgery convictions
constituted the same criminal conduct and imposed concurrent, standard range sentences
of twenty-seven months for each count. For the misdemeanor theft conviction, the
sentencing court imposed a concurrent sentence of three hundred days with two hundred
and seventy days suspended for two years on terms and conditions.
During sentencing, the trial court asked if Jesse Criswell agreed to restitution of
$500 or whether the court should schedule a restitution hearing. Defense counsel
responded: “We agree to $500 in restitution, your Honor.” Report of Proceedings (Sept.
18, 2017) at 19. The sentencing court imposed $500 in restitution.
LAW AND ANALYSIS
Restitution
On appeal, Jesse Criswell contends the trial court erroneously imposed restitution
in an amount not causally connected to the crimes of conviction. The State thereafter
agreed and moved the sentencing court to reduce the restitution amount from $500 to
$400 as argued by Criswell. The sentencing court granted the motion. Therefore, this
issue became moot. An appeal is moot if we lack the ability to provide an effective
remedy. State v. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012).
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No. 35581-1-III
State v. Criswell
On appeal, Jesse Criswell also contends his trial counsel engaged in ineffective
assistance of counsel when agreeing to restitution of $500. Since the sentencing court
has since reduced the restitution amount, this argument also is moot.
Juror Bias
In a statement of additional grounds, Jesse Criswell contends his constitutional
right to an impartial jury was violated. He claims a juror lied to the court when the court
asked if any venireperson had a personal relationship with Criswell, but one juror failed
to respond. Criswell asserts the juror knows him and likely holds bias against him.
According to Criswell, the juror engaged in an intimate relationship with Criswell’s
girlfriend and the two men have suffered uncordial interactions since.
We do not know if Jesse Criswell knew of the alleged bias of the one juror before
trial. Regardless, the trial record lacks any facts concerning any potential bias of the
juror. A party must identify a portion of the trial court record to sustain a statement of
additional grounds for review. RAP 10.10(c). Should Jesse Criswell wish to supplement
the record with evidence of his juror bias allegation, he may do so in a personal restraint
petition.
CONCLUSION
We affirm the conviction of Jesse Criswell and the reduced restitution amount of
$400.
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No. 35581-1-III
State v. Criswell
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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Lawrence-Berrey, C.J.
______________________________
Pennell, J.
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