State Of Washington v. Charles C. Johnson

Filed
Washington State
Court of Appeals
Division Two
August 15, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49088-9-II
Respondent,
v.
CHARLES CHRISTOPHER JOHNSON, UNPUBLISHED OPINION
Appellant.
JOHANSON, J. — Charles C. Johnson appeals his jury trial convictions for possession of a
controlled substance, methamphetamine, and two counts of bail jumping.1 Johnson argues that at
his suppression hearing, the trial court entered a finding of fact not supported by substantial
evidence and that the trial court erroneously concluded that Johnson’s arrest was lawful. Johnson
also raises several arguments in his statement of additional grounds (SAG).2 We hold that the trial
court properly concluded that the arrest was lawful. We also hold that Johnson’s SAG arguments
fail. Accordingly, we affirm Johnson’s convictions and sentence.
1
RCW 69.50.4013(1) and RCW 9A.76.170, respectively.
2
RAP 10.10.
No. 49088-9-II
FACTS
I. BACKGROUND3
In December 2015, Shelton Police Officer Robert Auderer stopped his patrol car to make
contact with Johnson, whom Auderer believed was trespassing on Bonneville Power
Administration (BPA) property. Officer Auderer advised Johnson that he was trespassing. While
Officer Auderer awaited confirmation of whether there was a warrant for Johnson’s arrest, Johnson
began to exhibit signs of methamphetamine intoxication, and Officer Auderer handcuffed Johnson.
After handcuffing Johnson, Officer Auderer observed a baggie that appeared to contain
methamphetamine in Johnson’s pants pocket. Officer Auderer arrested Johnson for trespassing
and seized the baggie. Johnson was taken into custody, and four days later, the State charged
Johnson with unlawful possession of a controlled substance, methamphetamine.4
II. SUPPRESSION MOTION AND HEARING
A. SUPPRESSION MOTION
In March 2016, Johnson moved to have “any evidence seized” from Officer Auderer’s stop
suppressed under CrR 3.6. Clerk’s Papers (CP) at 85. Johnson argued that Officer Auderer had
conducted a Terry5 stop without having the requisite reasonable and articulable suspicion of
3
The background facts are based on the suppression hearing testimony.
4
Johnson was released from custody on bail twice, and both times Johnson failed to appear at his
court hearings. In February 2016, the State amended the information to include a count of bail
jumping. In April, the State again amended the information and included a second bail jumping
count. Johnson was arraigned on these charges on the day of trial.
5
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
2
No. 49088-9-II
criminal activity.6 Johnson further argued that Officer Auderer’s detention of Johnson was
unlawful because there was not a “substantial possibility that criminal conduct ha[d] occurred or
[wa]s about to occur.” CP at 85. The State responded that the evidence should not be suppressed
because Officer Auderer had probable cause to arrest Johnson for trespassing.
B. SUPPRESSION HEARING TESTIMONY AND ARGUMENT
In May, Officer Auderer testified at the suppression hearing. Officer Auderer recounted
that “around the hours of darkness,” he had come into contact with Johnson on an area of BPA
property with which Auderer was familiar. I Report of Proceedings (RP) at 8. Officer Auderer
was aware of “[e]xtensive transient activity” and a related history of complaints from BPA
authorities to enforce trespassing laws. I RP at 9. Without objection, Officer Auderer testified
that the BPA had provided the police department with a letter requesting enforcement and a map
of the land owned by the BPA. The State did not introduce the letter to which Officer Auderer
referred.
Officer Auderer testified that there were two no-trespassing signs in between which
Johnson was standing when Auderer apprehended Johnson. One sign was mounted upon a metal
tower and the other was on a chain link fence surrounding a power substation. Johnson was
standing between the metal tower and the fence on the gravel road. Both signs were visible during
the daylight to an observer standing on the gravel road. On cross-examination, Officer Auderer
6
In its oral ruling at the suppression hearing, the trial court rejected the characterization of the stop
as a Terry stop and applied the probable cause standard required for an arrest because “[t]he
articulable facts known to Officer Auderer that formed the basis of the arrest reference really the
observations of an information known to the officer that were not obtained as a result of a[n]
investigative detention. So, this goes beyond the standard necessary for a Terry stop.” I Report
of Proceedings (RP) at 52.
3
No. 49088-9-II
noted that there were streetlights and ambient light in the area, although the trespassing signs were
not directly lit.
Related to the condition of the land, Officer Auderer agreed on cross-examination that the
land was “pretty much unimproved” other than the “right-of-way for the road.” I RP at 39. The
gravel road was an “access road” and the property contained “[m]ultiple” metal towers outside the
fenced-in power station. I RP at 39-40.
Officer Auderer advised Johnson that he was trespassing, obtained Johnson’s
identification, and, when Auderer learned there was a “warrant hit,” awaited confirmation of the
warrant for Johnson’s arrest. I RP at 13. During this time, Johnson exhibited signs of
methamphetamine intoxication and indications that he was about to flee or attack Officer Auderer.
Officer Auderer placed Johnson in handcuffs and then noticed in Johnson’s open pants pocket an
object that “appeared to be a baggie of methamphetamine.” I RP at 16. Officer Auderer arrested
Johnson for trespassing and retrieved the methamphetamine from Johnson’s pocket.
After Officer Auderer’s testimony, Johnson argued that the stop was unwarranted because
Johnson was on “unimproved” land, the no-trespassing signs could have been directions not to
climb on the tower or enter the fenced area surrounding the substation, and it was unreasonable to
think Johnson even saw the signs. The State responded that the property was “improved” because
it contained a power grid and metal towers and that the no-trespassing signs were “conspicuous.”
Johnson did not raise any issue regarding Officer Auderer’s “jurisdiction” or authority to enforce
state law on federal property.
4
No. 49088-9-II
C. ORDER DENYING SUPPRESSION MOTION
The trial court entered written findings of fact including that on the date of Johnson’s arrest,
as relevant here,
2. Officer Robert Auderer observed a male, later identified as Charles Johnson,
standing between two clearly visible no[-]trespassing signs on an improved gravel
road owned by [BPA]. The no[-]trespassing signs [were] located on a fenced in
area with electrical equipment and unfenced electrical towers. Officer Robert
Auderer knew that the location belonged to [BPA] and . . . [BPA] had requested
that trespassers and illegal campers be removed from the property. Officer Robert
Auderer also knew that the access road was a point of entry for illegal campers on
to [BPA] property.
CP at 112-13.
In its oral ruling, the trial court stated that the “focus of this inquiry is what did Officer
Auderer know that . . . created the reasonable grounds for him to believe that a misdemeanor
trespass had occurred?” I RP at 53-54. The trial court explained that Officer Auderer was aware
of a history of trespassing in the area from which Johnson was walking and that Officer Auderer
encountered Johnson in an improved area. Related to the no-trespassing signs, the trial court noted
that although there was no testimony that the no-trespassing signs were visible at the time of
Johnson’s arrest, there were “reasonable grounds for Officer Auderer to believe that [Johnson] had
notice at the time that [Auderer] made the arrest.” I RP at 56. Namely, it would have been
reasonable for Officer Auderer to infer that the signs were visible when Johnson had entered the
area.
The trial court also entered written conclusions of law, including that the arrest was lawful,
that the search incident to arrest was lawful, and that the seizure of the methamphetamine was
lawful. The trial court denied the motion to suppress and ruled that all the evidence seized by
Officer Auderer and Johnson’s statements were admissible. Because Johnson did not raise the
5
No. 49088-9-II
issue, the trial court did not make any ruling regarding Officer Auderer’s authority to act on federal
lands.
III. EVIDENTIARY RULING, TRIAL, AND CLOSING ARGUMENT
Before trial, the trial court ruled that it would admit evidence of Johnson’s prior convictions
for possession of methamphetamine, subject to a limiting instruction, to show that Johnson knew
that the substance Officer Auderer had seized was methamphetamine. At Johnson’s trial, the
methamphetamine seized by Officer Auderer was admitted during the State’s case. And subject
to the limiting instruction, the trial court allowed the State to admit evidence of Johnson’s prior
convictions for possession of methamphetamine.
Related to Johnson’s bail jumping charges, the State introduced evidence of Johnson’s
failure to appear before the trial court on two occasions. In closing argument, Johnson’s counsel
left it to the jury to decide whether the elements of bail jumping had been met, although Johnson’s
counsel stated that he did not concede that Johnson was guilty.
IV. CONVICTION AND SENTENCE
A jury found Johnson guilty of unlawful possession of a controlled substance,
methamphetamine, and two counts of bail jumping. On June 13, Johnson received a “Drug
Offender Sentencing Alternative” (DOSA), RCW 9.94A.660, sentence and was ordered to report
to treatment and comply with community custody and to pay legal financial obligations (LFOs),
including restitution.7
7
On August 2, the trial court held a show cause hearing and found that Johnson had violated his
DOSA. On August 16, instead of revoking the DOSA, the trial court ordered Johnson to report to
a “dual diagnosis” DOSA facility. II RP at 255.
6
No. 49088-9-II
Johnson appeals the denial of his suppression motion, the admission of “hearsay” and “ER
404(b)” evidence at his trial, and his judgment and sentence. CP at 6.
ANALYSIS
I. SUPPRESSION MOTION DENIAL
Johnson challenges the trial court’s conclusion that his arrest was lawful. He contends that
because there was no probable cause to arrest him, the ensuing arrest and search incident to arrest
were unlawful and accordingly that the trial court should not have allowed the methamphetamine
found in Johnson’s pocket to be used against Johnson at trial.8 We disagree.
A. STANDARD OF REVIEW: SUPPRESSION HEARINGS
Following a suppression hearing, we review challenged findings of fact to determine
whether they are supported by substantial evidence. State v. O’Neill, 148 Wash. 2d 564, 571, 62 P.3d
489 (2003). Unchallenged findings are verities on appeal, and challenged findings supported by
substantial evidence are binding. O’Neill, 148 Wash. 2d at 571. Substantial evidence is that which
is “sufficient to persuade a fair-minded person of the truth of the asserted premise.” State v.
Homan, 181 Wash. 2d 102, 106, 330 P.3d 182 (2014). When determining whether substantial
evidence supports a challenged finding, we defer to the trial court, and we do not “‘disturb findings
of fact supported by substantial evidence even if there is conflicting evidence.’” In re Pers.
8
Johnson also argues that substantial evidence does not support the trial court’s finding that two
no-trespassing signs were clearly visible. Because the trial court properly found that the land was
improved property, the visibility of the signage is immaterial to whether Johnson’s entry was
unlawful. And as discussed below, Officer Auderer’s testimony supports the finding that the land
was improved property.
7
No. 49088-9-II
Restraint of Stenson, 174 Wash. 2d 474, 488, 276 P.3d 286 (2012) (quoting Merriman v. Cokeley,
168 Wash. 2d 627, 631, 230 P.3d 162 (2010)).
We review the trial court’s conclusions of law following a suppression hearing de novo.
Homan, 181 Wash. 2d at 106. We affirm conclusions of law that are supported by the findings of
fact. State v. Vickers, 148 Wash. 2d 91, 116, 59 P.3d 58 (2002).
B. LAWFUL ARRESTS
Pursuant to a lawful arrest, an arresting officer has authority to search an arrestee’s person
and his personal effects. State v. Byrd, 178 Wash. 2d 611, 617-18, 310 P.3d 793 (2013) (quoting
United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)). If a search
is unlawful, generally evidence seized during that search is suppressed. State v. Gaines, 154 Wash. 2d
711, 716-17, 116 P.3d 993 (2005).
RCW 10.31.100(1) allows warrantless arrests in situations including, as relevant here,
where a police officer has “probable cause to believe that a person has committed or is committing
a misdemeanor . . . involving criminal trespass under RCW 9A.52.070[9] or 9A.52.080.” “Probable
cause exists when the arresting officer is aware of facts and circumstances, based on reasonably
trustworthy information, sufficient to cause a reasonable officer to believe that a suspect has
committed or is committing a crime.” State v. Afana, 169 Wash. 2d 169, 182, 233 P.3d 879 (2010).
Importantly, what matters is not whether the suspect actually committed a crime but the objective
reasonableness of the officer’s belief that probable cause existed. Afana, 169 Wash. 2d at 183. The
9
RCW 9A.52.070(1) governs first degree criminal trespass, which involves “knowingly enter[ing]
or remain[ing] unlawfully in a building” and is not relevant here.
8
No. 49088-9-II
arresting officer need not have evidence to prove beyond a reasonable doubt each element of the
crime. State v. Gaddy, 152 Wash. 2d 64, 70, 93 P.3d 872 (2004).
RCW 9A.52.080(1) defines second degree criminal trespass as “knowingly enter[ing] or
remain[ing] unlawfully in or upon premises of another under circumstances not constituting
criminal trespass in the first degree.” The circumstances under which a person “‘[e]nters or
remains unlawfully’” are defined by RCW 9A.52.010(2)10 as
[a] person “enters or remains unlawfully” in or upon premises when [he] is not then
licensed, invited, or otherwise privileged to so enter or remain.
....
. . . A person who enters or remains upon unimproved and apparently
unused land, which is neither fenced nor otherwise enclosed in a manner designed
to exclude intruders, does so with license and privilege unless notice against
trespass is personally communicated to [him] by the owner of the land or some
other authorized person, or unless notice is given by posting in a conspicuous
manner.
C. ANALYSIS
Johnson relies upon the portion of RCW 9A.52.010(2) that discusses entry onto
“‘unimproved and apparently unused land’” and argues that his entry was “‘with license and
privilege’” because notice was not given “‘by posting in a conspicuous manner.’” Br. of Appellant
at 9-12 (quoting RCW 9A.52.010(2)). But this argument overlooks that the requirement of notice
by “posting in a conspicuous manner” applies to entry on unimproved land. See RCW
9A.52.010(2). Here, however, the trial court found that Johnson was standing on improved land—
the gravel access road—at the time of Johnson’s arrest.
10
The citation is to the current statute; in 2016, deletions from RCW 9A.52.010 renumbered but
did not substantively change RCW 9A.52.010(2). LAWS OF 2016, ch. 164, § 12.
9
No. 49088-9-II
Johnson does assign error to finding of fact 2, which includes the written finding that
Johnson was “standing . . . on an improved gravel road.” CP at 112. However, Johnson does not
argue that the portion of the finding that he was standing on an improved gravel road is
unsupported by substantial evidence. Even if he did, Officer Auderer’s testimony that Johnson
was standing on the access road when Auderer arrested Johnson, that the area other than the “right-
of-way for the road” was “pretty much unimproved,” and that the gravel road was used to access
the property constitute substantial evidence to support the finding. I RP at 39. Accordingly, the
finding that Johnson was standing on improved land at the time of his arrest is binding on appeal.
See O’Neill, 148 Wash. 2d at 571.
Because Johnson was standing on improved land, RCW 9A.52.010(2) required that
Johnson only be unlicensed, uninvited, or otherwise unprivileged to unlawfully “enter[] or
remain[]” on the land. Under this definition, Johnson entered or remained unlawfully on the access
road even if the signs were not clearly visible at night and did not clearly convey that it was the
gravel road, not the towers or fenced substation, that were off limits, as Johnson contends.
Johnson relies upon State v. Johnson to argue that even with the signs, the gravel road was
impliedly open to the public. 75 Wash. App. 692, 879 P.2d 984 (1994). But this case does not
establish—and Johnson does not otherwise explain how—he had a license, invitation, or privilege
to enter or remain on the access road. See RCW 9A.52.010(2).
To conclude that Officer Auderer had probable cause to arrest Johnson, the trial court had
to find that at the time of the arrest, Officer Auderer was aware of facts and circumstances, based
on reasonably trustworthy information, sufficient to cause him to believe that Johnson was
committing second degree trespass. See Afana, 169 Wash. 2d at 182. Because Johnson was on
10
No. 49088-9-II
improved land, those facts and circumstances had to be sufficient to cause an objectively
reasonable belief that Johnson had “knowingly” entered or remained upon premises where he was
not “licensed, invited, or otherwise privileged” to enter or remain. RCW 9A.52.010(2); see Afana,
169 Wash. 2d at 183; RCW 9A.52.080(1).
Here, the trial court’s findings related to Officer Auderer’s knowledge at the time of
Johnson’s arrest were as follows: “Auderer knew that the location belonged to [BPA] and that
[BPA] had requested that trespassers and illegal campers be removed from the property. Officer
. . . Auderer also knew that the access road was a point of entry for illegal campers on to [BPA]
property.” CP at 112-13. Again, although Johnson generally assigns error to the entirety of finding
of fact 2, Officer Auderer’s testimony supports all of these findings. Officer Auderer testified at
the suppression hearing that he was familiar with the BPA property and a history of transient
activity and related complaints by BPA, including BPA’s request that the police enforce
trespassing laws on the property.
The trial court also found that the signs were “clearly visible” to those who used the path.
CP at 112. Johnson argues that substantial evidence does not support the trial court’s finding that
two no-trespassing signs were clearly visible and that the signs did not give notice that the
improved road—rather than the tower and fenced substation—was off limits. Because the trial
court properly found that the land was improved property, the visibility of the signage is immaterial
to whether Johnson’s entry was unlawful. The visibility of the signs was a factor in Officer
Auderer’s conclusion that there was probable cause to arrest Johnson for trespassing. However,
Officer Auderer’s testimony and the suppression hearing evidence show that the signs were near
the entry to the area, which was used to access the property, and that it was reasonable for Auderer
11
No. 49088-9-II
to infer that the signs had been visible to Johnson when he entered the area. The signs’ visibility
to those using the road, Officer Auderer’s familiarity with the area, and Officer Auderer’s
knowledge of a history of trespassing on the property together support that Officer Auderer could
reasonably have believed that Johnson knew he was trespassing. See Afana, 169 Wash. 2d at 183,
RCW 9A.52.080(1).
Taken together, these findings amount to facts and circumstances sufficient to cause
Officer Auderer to have an objectively reasonable belief that Johnson had knowingly entered or
remained upon premises where he was not licensed, invited, or otherwise privileged to enter or
remain. See Afana, 169 Wash. 2d at 183; RCW 9A.52.080(1), .010(2). Notably, the trial court did
not have to conclude that Officer Auderer believed he could prove every element of second degree
trespass beyond a reasonable doubt. See Gaddy, 152 Wash. 2d at 70. Because the findings of fact
support that there was probable cause to arrest Johnson, we affirm the trial court’s legal conclusion
that the “arrest of [Johnson] was lawful.”11 CP at 114; Vickers, 148 Wash. 2d at 116; see RCW
10.31.100. And because the arrest was lawful, we further hold that the trial court correctly
concluded that the ensuing search was lawful and declined to suppress the methamphetamine. See
Byrd, 178 Wash. 2d at 617-18; Gaines, 154 Wash. 2d at 716-17.
11
In his SAG, Johnson argues that the trial court erred when it denied his suppression motion
because the trial court relied upon State v. Morgan, 78 Wash. App. 208, 211, 896 P.2d 731 (1995)
(holding that if property is sometimes open to the public, then at times when the property is closed,
some type of notice is required before users can be arrested for trespass), in reaching its decision.
We disagree because based upon our de novo review, the trial court’s conclusion was correct.
Further, the trial court properly relied on Morgan for the principle that it had to look to what
“Officer Auderer kn[e]w that formed the basis that created the reasonable grounds for him to
believe that a misdemeanor trespass had occurred.” II RP at 53-54.
12
No. 49088-9-II
II. SAG ARGUMENTS
Johnson asserts multiple alleged errors in his SAG. We hold that these arguments either
lack merit or cannot be addressed.
A. WITNESS AND JUDICIAL MISCONDUCT AT THE SUPPRESSION HEARING
Johnson claims that Officer Auderer committed perjury because his oral testimony at the
suppression hearing conflicted with his written report. Relatedly, Johnson argues that it was
judicial misconduct for the judge to rely upon a witness’s allegedly questionable testimony. We
hold that these arguments fail.
1. PRINCIPLES OF LAW
It is the trier of fact who assesses a witness’s credibility and weighs the evidence. State v.
Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990). That some of the witness’s statements
contradicted others goes to the witness’s credibility and does not reflect misconduct by the witness.
State v. Thomas, 150 Wash. 2d 821, 874-75, 83 P.3d 970 (2004) (holding that the appellate court
“must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the
persuasiveness of the evidence”). Testimony that is confusing and somewhat contradictory does
not necessarily constitute perjury. See RCW 9A.72.050(1) (perjury consists of a person making
inconsistent material statements under oath, knowing one to be false); Nessman v. Sumpter, 27
Wash. App. 18, 24, 615 P.2d 522 (1980) (contradictory statements are not direct evidence of falsity
that perjury requires).
2. WITNESS MISCONDUCT: PERJURY
Based on a review of the record, Officer Auderer did not make any material oral statements
that conflicted with his written report. But even if Officer Auderer had made conflicting material
13
No. 49088-9-II
statements, those statements would go to his credibility; they do not reflect misconduct by the
witness or constitute perjury. See Thomas, 150 Wash. 2d at 874-75. Thus, we disagree with Johnson
that Officer Auderer committed witness misconduct.
3. JUDICIAL MISCONDUCT: RELIANCE ON A QUESTIONABLE WITNESS
The judge is the trier of fact at a suppression hearing. As stated above, the record does not
show that Officer Auderer made any material statements that were contradictory. But even if he
had, his statements go to his credibility and are left to the judge as the trier of fact. See Thomas,
150 Wash. 2d at 874-75. Because credibility determinations are left to the trier of fact, we reject this
claim.
B. AUTHORITY OF ARRESTING OFFICER AS GROUNDS FOR SUPPRESSION
Johnson asserts that the trial court erred when it denied his suppression motion because
there was insufficient evidence to show that Officer Auderer had “jurisdiction” on BPA property.
Johnson contends that the BPA is located on federal property and thus the State is required to show
that state officers had “jurisdiction” on BPA property. We hold that Johnson waived this argument.
We do not address arguments first raised on review, subject to certain exceptions, including
arguments that pertain to “lack of trial court jurisdiction” or “manifest error affecting a
constitutional right.” RAP 2.5(a). It is important to note that although Johnson uses the word
jurisdiction, he apparently means authority to act on federal property. See RAP 2.5(a)(1). Johnson
does not argue that the arresting officer’s alleged lack of authority was a constitutional error. See
RAP 2.5(a)(3). Thus, to preserve this issue for appeal, Johnson had to argue a lack of authority at
the suppression hearing.
14
No. 49088-9-II
At the suppression hearing, Officer Auderer testified that the BPA owned the property on
which Johnson trespassed and that the BPA had requested that the local police department enforce
the no-trespassing laws. The trial court’s written findings also noted that the BPA owned the
property. Johnson did not argue that Officer Auderer lacked authority to arrest Johnson on BPA
property or to enforce the trespassing laws. Thus, we hold that Johnson has waived this argument.
See RAP 2.5(a).
C. EVIDENTIARY ERRORS: SUPPRESSION HEARING AND TRIAL
Johnson alleges evidentiary errors during both the suppression hearing and at trial.
Namely, Johnson argues that at the suppression hearing, the State failed to lay the proper
foundation for testimony regarding the BPA letter and that at the trial, the trial court improperly
allowed the State to present evidence of Johnson’s prior convictions. We hold that these arguments
either were unpreserved, lack merit, or are too vague to address.
1. LEGAL PRINCIPLES
“‘The standard of review for evidentiary rulings made by the trial court is abuse of
discretion.’” Peralta v. State, 187 Wash. 2d 888, 894, 389 P.3d 596 (2017) (quoting City of Spokane
v. Neff, 152 Wash. 2d 85, 91, 93 P.3d 158 (2004)). An abuse of discretion exists “‘[w]hen a trial
court’s exercise of its discretion is manifestly unreasonable or based upon untenable grounds or
reasons.’” State v. Neal, 144 Wash. 2d 600, 609, 30 P.3d 1255 (2001) (alteration in original) (quoting
State v. Stenson, 132 Wash. 2d 668, 701, 940 P.2d 1239 (1997)).
A party may claim error in a ruling to admit evidence if (1) the error affects a substantial
right of the party and (2) the party makes a timely objection or motion to strike on the record. ER
15
No. 49088-9-II
103. Accordingly, the failure to object to the admission of evidence precludes a party from raising
the issue on appeal. Thomas, 150 Wash. 2d at 856.
2. LACK OF FOUNDATION FOR BPA LETTER AT THE SUPPRESSION HEARING
Johnson claims that the State failed to lay the proper foundation for a letter from BPA
requesting that Shelton police enforce trespassing laws. At the suppression hearing, Officer
Auderer stated that he was familiar with the BPA property because authorities at BPA had made a
written request to Shelton police to have trespassing laws enforced. This letter was not presented
at the hearing, but Officer Auderer referred to it during both direct and cross-examination. Defense
counsel neither objected to Officer Auderer’s testimony about the letter nor requested that the letter
be provided to the trial court.
Given that the defense did not timely object to Officer Auderer’s testimony about the BPA
letter, the issue is not preserved for appeal. Thomas, 150 Wash. 2d at 856. We do not reach the
merits of this unpreserved claim.
3. ER 404(B) RULING—ADMISSION OF EVIDENCE OF PRIOR CONVICTIONS AT TRIAL
Johnson appears to assert that the trial court erred when it allowed the State to present
evidence of Johnson’s prior convictions for possession of methamphetamine at Johnson’s trial.
Specifically, he says, “Judge Goodell granted latitude to the prosecution by allowing previous
convictions in trial. I ask for consideration in kind.” SAG at 3. This assertion is too vague to
apprise the court of the nature and occurrence of the alleged error. RAP 10.10(c). Thus, we do
not further consider Johnson’s argument.
16
No. 49088-9-II
D. INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL
Johnson alleges that his counsel was ineffective during his trial because he failed to defend
against the two bail jumping charges.12 We disagree.
A claim of ineffective assistance of counsel is a mixed question of law and fact that we
review de novo. State v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009). To establish
ineffective assistance of counsel, the defendant must show both that his attorney’s performance
was deficient and that the deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance is that which falls
below an objective standard of reasonableness under the circumstances. State v. Kyllo, 166 Wash. 2d
856, 862, 215 P.3d 177 (2009). “There is a strong presumption that counsel’s performance was
reasonable”; matters of legitimate trial tactics or strategy do not constitute deficient performance.
Kyllo, 166 Wash. 2d at 862-63. Prejudice is a reasonable probability that, but for the deficient
performance, the outcome of the proceedings would have differed. Kyllo, 166 Wash. 2d at 862. “If
either element of the test is not satisfied, the inquiry ends.” Kyllo, 166 Wash. 2d at 862.
The State presented evidence that Johnson had failed to appear on two separate hearing
dates. In closing argument, Johnson’s attorney stated that he was not conceding that Johnson was
guilty of bail jumping, but defense counsel also did not defend against the bail jumping charges.
Defense counsel stated that he was “just going to leave [Johnson’s guilt for bail jumping to the
12
Johnson argues that his counsel “made no attempt to defend against the more serious charges
during trial.” SAG at 3. We construe this as a claim of ineffective assistance of counsel for failure
to defend against the bail jumping charges, which in this case were more serious because they
carried a greater standard range sentence.
17
No. 49088-9-II
jury] to decide if” the elements of bail jumping had been met “because there was really no
testimony that would allow [him] to make much of an argument.” II RP at 188.
Nothing in the record suggests that there was a reasonable defense against Johnson’s bail
jumping charges. We thus hold that the decision not to defend against the bail jumping charges
was a matter of legitimate trial strategy and accordingly was not deficient performance. Kyllo,
166 Wash. 2d at 862. Thus, Johnson’s claim of ineffective assistance of counsel fails. See Kyllo,
166 Wash. 2d at 862.
E. MATTERS OUTSIDE THE RECORD
Johnson alleges multiple errors that rely on facts or documents outside the record. We do
not reach these arguments.
A SAG should refer only to documents that are contained in the record on review. RAP
10.10(c). “If a defendant wishes to raise issues on appeal that require evidence or facts not in the
existing trial record, the appropriate means of doing so is through a personal restraint petition.”
State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995). We “generally will not review a
matter on which the trial court did not rule.” Meresse v. Stelma, 100 Wash. App. 857, 867, 999 P.2d
1267 (2000); see RAP 2.4(a).
1. HELD IN CUSTODY WITHOUT COURT AUTHORIZATION
Johnson asserts that he was held in custody without court authorization. We do not reach
Johnson’s argument because it relies upon matters outside the record.
The record shows that Johnson was held in custody several different times: following his
arrest and before his trial, after his trial until his sentencing, and for a period after he was found in
violation of his DOSA but before the trial court determined whether it would revoke the DOSA.
18
No. 49088-9-II
Thus, to be successful, Johnson’s claim must rely on facts outside the record. We, therefore, do
not reach this issue.
2. JURY SUPERVISOR MISCONDUCT
Johnson states that his father “has forsaken [him] for seven years” and that his father’s
close friend, Ruth Flakus, was the jury supervisor for Johnson’s trial. SAG at 5. Although the
record verifies that Flakus was the jury supervisor, there is no information in the record regarding
whether Flakus and Johnson’s father were acquainted. In order for us to analyze whether there
was misconduct, we must necessarily determine that Flakus is a friend of Johnson’s father. Such
a fact is outside the record. Further, Johnson fails to apprise us as to the nature and occurrence of
any alleged error. Accordingly, we do not reach the merits of this issue.
F. MATTERS THAT ARE UNSUPPORTED BY THE RECORD
Johnson alleges several claims that are unsupported by the record. We hold that these
arguments fail or are too vague to address.
1. UNTIMELY BAIL JUMPING CHARGES
Johnson asserts that the trial court erroneously allowed the State to submit two bail jumping
charges on the day of trial. The record belies Johnson’s contention: the State amended the
information to include the final bail jumping charge approximately a month before trial. Indeed,
Johnson’s counsel recognized receipt of the bail jumping charges prior to trial. We hold that this
argument is unsupported by the record and accordingly fails.
2. FAILURE TO ARRAIGN ON THE BAIL JUMPING CHARGES
Johnson states that he was never arraigned on the bail jumping charges. To the contrary,
Johnson was arraigned on the bail jumping charges on the day of trial. Formal reading of the
19
No. 49088-9-II
charges was waived and a not-guilty plea was entered for both counts. We hold that the record
does not support this claim.
3. JUDGMENT AND SENTENCE NOT AMENDED
Johnson contends that his judgment and sentence was not amended during or after his
August 2 show cause hearing. We note that the trial court did amend Johnson’s judgment and
sentence—the trial court adjusted the amount of LFOs in an order that “amended” the “judgment
& sentence.” CP at 95. Nothing else in the record suggests that the judgment and sentence was
otherwise required to be amended. Johnson does not explain how the judgment and sentence
should have been amended. As such, he fails to apprise us of the nature and occurrence of any
alleged error as required by RAP 10.10(c). This contention is too vague to address on the merits.
G. CLAIMS OUTSIDE THE SCOPE OF THIS APPEAL
Johnson alleges multiple errors related to his August 2 DOSA show cause hearing.13
Johnson alleges that at the show cause hearing, an American Behavioral Health Systems (ABHS)
staff member committed perjury. Related to his claim of witness misconduct by the ABHS staff
member, Johnson claims that his counsel failed to bring perjury charges against the ABHS staff
member.14 Johnson also asserts that the trial court relied on this allegedly questionable evidence.
Finally, Johnson asserts that the trial court admitted irrelevant evidence during Johnson’s cross-
13
Johnson states that the referenced show cause hearing occurred in July 2016. The record does
not include a show cause hearing in July but does include a show cause hearing on August 2, 2016.
Johnson’s allegations correspond with the facts from the August 2 show cause hearing, so we
assume this was a typographical error.
14
Johnson states, “Mr. Rothman did not file perjury charges,” but Mr. Rothman was the attorney
for the State. SAG at 4. We assume this is a typographical error and that Johnson is referring to
his own counsel, Ronald Sergi.
20
No. 49088-9-II
examination. We do not review these claimed errors related to the show cause hearing because
they are outside the scope of this appeal.
“An appellate court’s review is necessarily limited by the scope of a given appeal.” Clark
County v. W. Wash. Growth Mgmt. Hr’gs Bd., 177 Wash. 2d 136, 145, 298 P.3d 704 (2013). The
notice of appeal must “designate the decision or part of decision which the party wants reviewed.”
RAP 5.3(a)(3); see also Cook v. Commellini, 200 Wash. 268, 270-71, 93 P.2d 441 (1939) (It is “a
well-established rule that, on appeal from only a part of a judgment or decree, the court may not
review rulings which do not affect the part appealed from.”).
Here, the show cause hearing that Johnson references was held to review Johnson’s alleged
DOSA violation. Johnson’s notice of appeal and supplemental notice of appeal state that Johnson
appeals only the suppression hearing, evidentiary rulings at Johnson’s trial, and his judgment and
sentence. Both notices of appeal, which were filed in June, do not (and could not) say that Johnson
appeals from the August show cause hearing or the related show cause order. Thus, we decline to
reach these issues that are outside the scope of Johnson’s appeal.
III. APPELLATE COSTS
Johnson requests that should the State substantially prevail on appeal, this court deny a cost
bill. The State represents to this court that it will not request appellate costs. Accordingly, we
accept the State’s representation and deny an award of appellate costs to the State.
21
No. 49088-9-II
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
JOHANSON, J.
We concur:
MAXA, A.C.J.
LEE, J.
22