State Of Washington v. Patrick Dennis King ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHNGTON, NO. 72598-0-
Respondent,
DIVISION ONE
v.
PATRICK DENNIS KING, UNPUBLISHED OPINION
Appellant. FILED: December 7, 2015
Lau, J. — A jury convicted Patrick King of attempted second degree burglary and
possession of burglary tools. King appeals his conviction for possession of burglary
tools. He contends a discrepancy between the State's information and the to-convict
instruction violated his right to fair notice and permitted the jury to convict him on
uncharged alternative means. He also contends that the trial court's findings do not
support its offender score calculation. Finding no errors, we affirm the judgment and
sentence.
FACTS
On October 31, 2013, City of Kent police officers responded to an alarm at a
CenturyLink facility. They arrived 30 seconds after the alarm was triggered. Officer
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Whitley saw Patrick King and Bradly Bachmann walking away from a hole in the fence.
Both men were wearing yellow reflective vests. Officer Whitley ordered them to get on
the ground. Bachmann fled, but King remained on the ground. After arresting King,
Officer Whitley discovered a flashlight and a small handsaw in his pocket. When other
officers searched the area, they found the yellow vest King had been wearing, gloves, a
magnetic tool, and another saw. When they inspected the fence, officers found a pair of
plier-type wire cutters.
On July 9, 2014, the State charged King on one count of second degree
attempted burglary1 and one count of possession of burglary tools. The information
identified two specific tools that King allegedly possessed:
[T]he defendant Patrick Dennis King in King County, Washington,
on or about October 31, 2013, did have in his possession a tool or
implement commonly used for the commission of burglary, to-wit:
flashlight and saw under circumstances evincing an intent to use or
employ or allow the same to be used or employed in the commission of a
burglary.
Clerk's Papers (CP) at 9 (emphasis added). During trial, the State introduced evidence
of other tools discovered at the scene. During closing argument, the prosecutor
mentioned that King and his accomplice used saws, pliers or wire cutters, and yellow
reflective vests. The "to-convict" instruction included a broader list of potential burglary
tools:
To convict the defendant of the crime of making or having burglary
tools, as charged in Count 2, each of the following elements of the crime
must be proved beyond a reasonable doubt:
(1) That on or about October 31, 2013, the defendant
possessed an engine, machine, tool, false kev. pick lock.
1 King does not appeal this conviction.
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bit, nippers or implement adapted, designed, or
commonly used for the commission of burglary;
(2) That the defendant's actions were under circumstances
evincing an intent to use or employ, or allow the tools to
be used or employed, or knowing that the tools were
intended to be used or employed, in the commission of a
burglary; and
(3) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty as to Count 2.
On the other hand, if, after weighing all of the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty as to Count 2.
CP at 31 (emphasis added). The language in the "to-convict" instruction mirrors the
language in RCW 9A.52.060, the statute prohibiting possession of burglar tools.2 No
other jury instruction limited the burglar tools to a saw and a flashlight.
King was convicted as charged following a jury trial. He was sentenced to 12.75
months imprisonment for the burglary charge and 364 days to run concurrently for the
possession of burglary tools charge. King appeals.
2 "Every person who shall make or mend or cause to be made or mended,
or have in his or her possession, any engine, machine, tool, false kev. pick
lock, bit, nippers, or implement adapted, designed, or commonly used for
the commission of burglary under circumstances evincing an intent to use
or employ, or allow the same to be used or employed in the commission of
a burglary, or knowing that the same is intended to be so used, shall be
guilty of making or having burglar tools."
RCW 9A.52.060 (emphasis added).
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ANALYSIS
The Information and Jury Instructions
The main basis for King's appeal stems from an alleged discrepancy between the
information and the jury instructions. The information identified two specific burglar
tools—a saw and a flashlight. The "to-convict" instruction provided a broader list of
potential tools consistent with state statute. King argues this discrepancy violated his
rights in two ways. First, because the "to-convict" instruction contained more examples
of burglar tools than the information, the jury was permitted to convict him on uncharged
alternative means. Second, the information violated his right to notice because it did not
alert him to the various tools the State alleged he possessed. Both of these arguments
fail.
Uncharged Alternative Means
The jury instructions here did not permit the jury to convict King on uncharged
alternative means because possession of burglary tools is not an alternative means
crime.
Criminal defendants have the right to a unanimous jury verdict. This right
includes the right to a unanimous jury determination as to the means by which the
defendant committed the crime when the defendant is charged with an alternative
means crime. State v. Owens. 180 Wash. 2d 90, 95, 323 P.3d 1030 (2014). An alternative
means crime provides that proscribed criminal conduct may be proved in a variety of
ways. State v. Smith. 159 Wash. 2d 778, 784,154 P.3d 873 (2007). Typically, alternative
means crimes are created by statutes setting forth more than one means by which the
offense may be committed. Smith. 159 Wash. 2d at 784. "It is error to instruct the jury on
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alternative means that are not contained in the charging document." State v.
Brewczvnski. 173 Wash. App. 541, 549, 294 P.3d 825 (2013).
King presents no authority or legal analysis supporting his argument that
possession of burglary tools is an alternative means crime. His brief assumes that
because a "burglary tool" could be one of many different tools, it is an alternative means
crime, and the State must therefore identify which specific tools he possessed. Due to
the lack of authority and analysis, we can ignore this argument. See RAP 10.3(a)(6)
(parties are required to support their arguments with citations to legal authority and
references to relevant parts of the record); Norcon Builders. LLC v. GMP Homes VG.
LLC. 161 Wash. App. 474, 486, 254 P.3d 835 (2011) ("We will not consider an
inadequately briefed argument."); Cowiche Canyon Conservancv v. Boslev. 118 Wash. 2d
801, 809, 828 P.2d 549 (1992) (arguments not supported by legal authority or citation to
the record need not be considered).
This assertion nevertheless fails. The list of tools provided in the "to-convict"
instruction did not present the jury with any alternative means to convict King because
possession of burglary tools is not an alternative means crime. In Owens, the court
explained that listing several definitional terms does not create an alternative means of
committing a crime:
One guiding principle is that the use of a disjunctive "or" in a list of
methods of committing the crime does not necessarily create alternative
means of committing the crime. Another principle provides that the
alternative means doctrine does not apply to mere definitional instructions;
a statutory definition does not create a "means within a means."
Owens. 180 Wash. 2d at 96 (quoting Smith. 159 Wash. 2d at 787) (citation omitted). The
Owens court considered a statute providing that "a person who knowingly initiates,
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organizes, plans, finances, directs, manages, or supervises the theft of property for sale
to others, or who knowingly traffics in stolen property, is guilty of trafficking in stolen
property in the first degree." Owens. 180 Wash. 2d at 96 (quoting RCW 9A.82.050(1)).
The court rejected the argument that the statute created eight different alternative
means—that a defendant could be guilty of trafficking in stolen property by knowingly
(1) initiating, (2) organizing, (3) planning, (4) financing, (5) directing, (6) managing, or (7)
supervising the theft of property for sale to others, or by knowingly (8) trafficking in
stolen property. Owens. 180 Wash. 2d 97-98. Instead, the court held that "the first group
of seven terms relate to different aspects of a single category of criminal conduct," and
therefore do not constitute alternative means. Owens. 180 Wash. 2d at 98 (quoting Stated
v. Lindsev. 177 Wash. App. 233, 241-42, 311 P.3d 61 (2013)).
The same rationale applies here. The list of tools provided in the "to-convict"
instruction, derived from statute, "relate to different aspects of a single category of
criminal conduct." Owens. 180 Wash. 2d at 98 (quoting Lindsev. 177 Wash. App. at 242).
This list merely defines a broad category of burglary tools relevant to the offense. It
does not create alternative means of committing the offense. See Owens. 180 Wash. 2d
at 96 ("alternative means doctrine does not apply to mere definitional instructions"). The
Owens court emphasized that alternative means analysis "focuses on the different
underlying acts that could constitute the same crime ... [A] statute [does] not create
alternative means [when] an individual's conduct in each [scenario does] not vary
significantly." Owens. 180 Wash. 2d at 96-97. When the State charges a defendant with
possession of burglary tools, the specific tool possessed is irrelevant to the underlying
criminal conduct. In other words, the State did not create alternative means to convict
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King when it provided a broader list of potential burglary tools in the jury instructions
because the underlying "conduct in each of the ... scenarios [does] not vary
significantly." Owens. 180 Wash. 2d at 97. Further, "a statute divided into subparts is
more likely to be found to designate alternative means." State v. Lindsev. 177 Wash. App.
233, 241, 311 P.3d 61 (2013). The statute here is not divided into subparts. See RCW
9A.52.060. King's alternative means challenge fails.
Right to Notice
King also alleges that the discrepancy between the information and the jury
instructions violated his right to notice. This argument fails. The information properly
afforded King notice of the nature of the alleged offense.
Like his uncharged alternative means argument, King's brief inadequately
addresses this issue. He cites no authority and provides minimal analysis supporting
his contention that the discrepancy between the information and the jury instructions
violates his right to notice. We can ignore this issue due to King's inadequate briefing.
See RAP 10.3(a)(6) (parties are required to support their arguments with citations to
legal authority and references to relevant parts of the record); Norcon Builders. LLC. 161
Wash. App. at 486 ("We will not consider an inadequately briefed argument."); Cowiche
Canvon Conservancv. 118 Wash. 2d at 809 (arguments not supported by legal authority or
citation to the record need not be considered).
In any event, the information here was adequate. An accused person has a
constitutional right to be informed of the charges he or she will face at trial.
Brewczvnski. 173 Wash. App. at 548. "All essential elements of a crime, statutory or
otherwise, must be included in a charging document in order to afford notice to an
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accused of the nature and cause of the accusation against him." State v. Kiorsvik. 117
Wash. 2d 93, 97, 812 P.2d 86 (1991).
The information here included all essential elements of the crime. The statute
prohibiting possession of burglary tools provides:
Every person who shall make or mend or cause to be made or
mended, or have in his or her possession, any engine, machine, tool, false
key, pick lock, bit, nippers, or implement adapted, designed, or commonly
used for the commission of burglary under circumstances evincing an
intent to use or employ, or allow the same to be used or employed in the
commission of a burglary, or knowing that the same is intended to be so
used, shall be guilty of making or having burglar tools.
RCW 9A.52.060(1). The information here alleged:
That the defendant Patrick Dennis King in King County,
Washington, on or about October 31, 2013, did have in his possession a
tool or implement commonly used for the commission of burglary, to-wit:
flashlight and saw under circumstances evincing an intent to use or
employ or allow the same to be used or employed in the commission of a
burglary.
CP at 9. The information provided adequate notice to King of the essential elements of
the alleged offense. See Kiorsvik. 117 Wash. 2d at 97.
However, King never argues that the information failed to include an essential
element of the offense. Instead he contends that the discrepancy between the
information and the jury instructions violated his right to notice. King's argument seems
to be that when the State included a reference to a flashlight and saw in the information,
it essentially added those specific tools as an element to the offense. The State was
therefore required to prove possession of those tools and the instructions alluding to
other tools amount to uncharged alternative means—i.e., it "elected" to prove
possession of a flashlight and saw rather than other tools.
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As explained above, the jury instructions did not permit the jury to convict King on
an uncharged alternative means. Further, the State did not add an element to the
offense by referencing a flashlight and a saw in the information. The mere inclusion of
surplus language in a criminal information does not create an element of the crime that
the State is required to prove. State v. Tvedt. 153 Wash. 2d 705, 718, 107 P.3d 728
(2005): see also State v. Fitzpatrick. 141 Wash. 638, 642, 251 P. 875 (1927) ("The
objection to the information is the allegation with reference to 'miscellaneous
implements and tools.' This may be regarded as surplusage and the information still
charge the crime, because it alleges the possession of false keys and picklocks with the
intent to use them in the commission of a [burglary]."). Because the specific type of tool
King possessed was not an element of the crime, the State did not violate his right to
notice. Nor did the instructions permit the jury to convict King on uncharged alternative
means.
Offender Score Calculation
Next, King argues that the trial court failed to accurately calculate his offender
score when it included convictions that should have washed out under the Sentencing
Reform Act (SRA). But even if we assume, without deciding, that the trial court erred,
King's offender score calculation would be the same on remand.
A sentencing court acts without authority under the SRA when it imposes a
sentence based upon a miscalculated offender score. State v. Johnson. 180 Wash. App.
92, 99-100, 320 P.3d 197 (2014). A sentencing court's failure to follow the SRA may be
raised on appeal even if no objection was raised below. State v. Ford, 137 Wash. 2d 472,
484-85, 973 P.2d 452 (1999). The SRA requires a sentencing court to determine an
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offender score by taking three steps: "(1) identify all prior convictions; (2) eliminate
those that wash out; (3) 'count' the prior convictions that remain in order to arrive at an
offender score." State v. Moeurn. 170 Wn.2d 169,175, 240 P.3d 1158 (2010). The
State must prove a defendant's criminal history by preponderance of the evidence.
Ford. 137 Wash. 2d at 479-80.
Here, the trial court determined that King's offender score was 5 based on prior
felony convictions. The judgment and sentence lists these convictions as follows:
The defendant has the following criminal history used in calculating the offender
score (RCW 9.94A.525):
Crime Sentencing Date
Protection order viol-felony 10/05/2007
Tampering with a witness 10/05/2007
Bail jumping 10/05/2007
Cont sub-possess no prescription 11/30/2005
Cont subst vio a: 4/19/1995
mfg/delvr/p
CP at 52. King argues these felonies washed out before he committed the present
offense and therefore should not be included in his offender score calculation.
Under the SRA, a conviction washes out if the defendant has spent a certain
amount of time in the community without committing a crime. RCW 9.94A.525 states
that a Class B felony washes out after ten years and a Class C felony washes out after
five years:
(b) Class B prior felony convictions other than sex offenses shall
not be included in the offender score, if since the last date of release from
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confinement... the offender had spent ten consecutive years in the
community without committing any crime that subsequently results in a
conviction.
(c)... class C prior felony convictions other than sex offenses shall
not be included in the offender score if, since the last date of release from
confinement... the offender had spent five consecutive years in the
community without committing any crime that subsequently results in a
conviction.
RCW 9.94A.525(2)(b)-(c). Given the list of convictions provided in the trial court's
findings, at least some of these convictions arguably should have washed out.
However, King has a long history of misdemeanor convictions that prevent any of
his felony convictions from washing out. RCW 9.94A.525 requires that a felony
conviction wash out from offender score calculation if the defendant has spent a certain
amount of time in the community "without committing any crime." RCW
9.94A.525(2)(b). At sentencing, the State presented undisputed evidence that King had
been convicted of approximately thirty misdemeanors between 1990 and 2007. The
record shows that King acknowledged this criminal history and agreed with the State
that his offender score calculation was 5. King's own presentence report he submitted
for sentencing indicated an offender score of 5. Although the trial court did not
expressly include the misdemeanors in its findings, the record shows and King does not
dispute, that the trial court considered the misdemeanors in its offender score
calculation:
THE COURT: ... And I'm looking at—let me just share this with
you, I'm looking at your Appendix B, I'll just come
down—It's a long list of things dating back, vou know?
MR. KING: (laughs) Yeah.
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Report of Proceedings (RP) at (Sept. 18, 2014) at 15. When a defendant affirmatively
acknowledges his criminal history as presented by the State, the State is not required
further to prove that history by a preponderance of the evidence. State v. Ross. 152
Wash. 2d 220, 232-33, 95 P.3d 1225 (2004).
Here, King's argument seems to be that the trial court's findings do not support
the offender score calculation. He does not dispute his criminal history as presented by
the State, nor does he dispute that this complete history yields a calculation of 5.
Instead he asserts that the trial court's findings, which include only his felony
convictions and not his misdemeanors, does not support a calculation of 5. But the
record shows that he acknowledged his complete criminal history and that the trial court
considered this history when it determined King's offender score. In other words,
though the trial court's findings do not include the misdemeanors, nothing in the record
shows that the offender score calculation is erroneous. During oral argument before
this court, King's counsel conceded that had the trial court included King's history of
misdemeanors in its findings, the offender score calculation would be correct.
Therefore, even if we assume, without deciding, that the trial court erred when it failed
to include King's misdemeanors in its findings, that error was harmless. See State v.
Fleming. 140 Wash. App. 132, 170 P.3d 50 (2007) (When the recalculation of an offender
score would be the same on remand, any calculation error is harmless.). Because King
has failed to show that his offender score calculation would be different on remand, we
affirm.
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Appeal Costs
King asks this court to waive any costs for this appeal based on his present and
future ability to pay. Pursuant to our discretionary authority under RAP 14.2, we grant
King's request and waive appellate costs.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence.
WE CONCUR:
op*fWA/N^ C.o, l"At J.
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