State Of Washington v. Steven Mikeal Sommer ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 68958-4-1
Respondent,
DIVISION ONE
v.
STEVEN MIKEAL SOMMER, UNPUBLISHED OPINION
Appellant. FILED: January 13, 2014
Leach, C.J. — In this prosecution for acts of domestic violence, Steven
Sommer appeals convictions for felony harassment, felony violations of a court
order, and malicious mischief. Because the evidentiary errors he asserts on
appeal were not preserved and because he demonstrates no basis for reviewing
them for the first time on appeal, we affirm his convictions. We accept the
State's concession that Sommer's sentence exceeds the statutory maximum for
his offenses and remand for further proceedings consistent with this opinion.
FACTS
Based on allegations that Sommer harassed Krishna Lee and violated no-
contact orders, the State charged him with felony harassment, three counts of
violation of a court order, and third degree malicious mischief.
Sommer's first trial ended in a mistrial. Before his second trial, the State
moved to admit Lee's and Sommer's phone records as business records. The
State pointed out that the records were accompanied by a certification from the
No.68958-4-1 / 2
records custodian. Defense counsel did not object to the phone records
themselves but objected to a demonstrative exhibit created by a police officer to
explain the records. Sommer argued that the officer manipulated the data and
that the exhibit prepared by the officer was hearsay and violated his right to
confrontation. After clarifying that Sommer only objected to the officer's
demonstrative exhibit and not to the underlying phone records prepared by
Verizon, the court admitted the records and the demonstrative exhibit.
At trial, the State's evidence established that Sommer and Lee began
dating in 2007. That same year, Sommer moved in with Lee, her father, and her
children. In 2009, Sommer and Lee had a daughter, C.L.
In December 2010, Lee was sitting in her car with C.L. when Sommer
grabbed Lee's neck from behind and struck her in the mouth. Lee's teenage
daughter and father called the police. But when they arrived, Lee declined to
cooperate. Lee's father asked Sommer to move out of the house.
Later in December, Lee brought C.L. to a motel to spend time with
Sommer. Angry about having to move out of Lee's home, Sommer grabbed
Lee's neck, refused to let her leave the room, and pulled the phone out of the
wall when she threatened to call police. Lee left the motel room with C.L. and
ran to her car. Sommer followed her outside and punched and broke the car's
windshield.
-2
No.68958-4-1 / 3
In May 2011, Sommer showed up at Lee's home late at night. He threw a
drink at Lee's father, pushed Lee down, kicked down the bathroom door, and
destroyed Lee's cell phone.
In June 2011, after receiving threatening phone calls from Sommer, Lee
called the police. The State charged Sommer with a domestic violence offense
and issued a pretrial no-contact order.
In July 2011, following another threatening phone call in late June, Lee
obtained an additional protection order prohibiting Sommer from having any
contact with her or C.L. for one year.
On September 22, 2011, Sommer met Lee and C.L. in a parking lot. He
was upset because he had been charged with violating the no-contact order. He
blamed Lee for his legal troubles and thought she should pay for his court-
ordered parenting classes. Sommer angrily told two-year-old C.L. that "Mommy
is trying to put daddy in jail." He told Lee that if he had to go back to jail, he
would kill her. Lee believed him. She quickly got back into her car and locked
the doors. Sommer then broke the window near C.L.'s car seat, shattering glass
onto her. Lee called her father and drove home.
During the drive home, Sommer called Lee's cell phone repeatedly. She
testified that "[sjometimes there would just be silence and I would hang up, and
he would call back. Other times he was crying and I would hang up and he
No.68958-4-1 / 4
would call back." At one point, Sommer threatened to jump off a bridge. The
calls continued after Lee got home. "[A]s soon as I would hang up, he would call
back, so my phone was continually engaged with his on these calls, and I was
scared. I was scared that he would come there and hurt us, and I was scared
that he was going to hurt himself."
Lee attempted to calm Sommer down, but he "said he was going to come
over with his AK-47 and shoot me and my family." This concerned Lee because
she knew that Sommer possessed this weapon. Sommer told her he "had
nothing left to lose" and assured her that "I always do what I say I'm going to do."
Lee called the police and subsequently gave a statement to Bellevue
Police Officer Sarah Finkel. Officer Finkel took photos of the shattered car
window and numerous screens on Lee's phone. The latter depicted calls and
text messages from and to Sommer.1 Officer Finkel also located the scene ofthe
parking lot incident and took photos of broken glass on the ground.
Officer Finkel eventually obtained a search warrant for Lee's and
Sommer's Verizon phone records. The records mirrored the call and text data
from Lee's phone.
In closing argument, the prosecutor argued that the felony harassment
count rested on either Sommer's threat to kill Lee when they were in the parking
1 The calls and texts span September 20 through September 22, 2011.
Many of the photographed screens show Sommer's phone number. There are
photos of 42 separate calls or texts on September 22, 2011.
No.68958-4-1 / 5
lot or his subsequent threat to kill her with an AK-47. The first count for violation
of a court order rested on Sommer's violation of the July 2011 order for
protection. The prosecutor argued that Sommer violated the order when he
called Lee and asked to arrange a visit with C.L., remained outside her car when
she was seated inside it, sat next to C.L. in the backseat, and said to C.L., "Mom
is trying to put me in jail."
The other counts for violation of a court order related to the June 2011 no-
contact order. The prosecutor argued that Sommer violated that order by "the
contact in the parking lot or the countless calls on the phone."
The jury convicted Sommer as charged. He appeals.
DECISION
Sommer first contends the trial court abused its discretion in admitting the
e-mail containing the Verizon phone records. He argues that the accompanying
"Certification of Custodian of Records" did not meet statutory requirements for
admitting records without testimony from the person who prepared the records.
He concludes the records were not properly authenticated and were therefore
inadmissible hearsay. But the State correctly points out that Sommer did not
raise this argument below and therefore waived it under RCW 10.96.030(4).2
Sommer does not respond to the State's argument in his reply brief. Nor does he
2 RAP 2.5(a); RCW 10.96.030(4) states in part, "Failure by a party to
timely file a motion [opposing admission of the record before trial] shall constitute
a waiver of objection to admission of the evidence."
No.68958-4-1 / 6
offer any basis for considering the argument for the first time in this court. To the
extent he suggests the trial court had a duty to review the certifications sua
sponte for compliance with the statute, he cites no supporting authority.3 Thus,
his first contention fails.
Sommer next contends the court's admission of the telephone records and
documents entitled "Explanation Form For Historical Records" violated his right to
confrontation. The State counters, and the record confirms, that Sommer did not
raise this contention below. This court generally will not address claims raised
for the first time on appeal unless they involve manifest constitutional error.4 To
invoke this exception, "[t]he defendant has the initial burden of showing that (1)
the error was 'truly of constitutional dimension' and (2) the error was 'manifest.'"5
Sommer has not met this burden.
Sommer nowhere acknowledges that he raises this issue for the first time
on appeal. Nor does he address RAP 2.5(a) or its requirements. While he does
argue that constitutional error occurred, he fails to demonstrate that the alleged
error is manifest. To do so, he must show actual prejudice by identifying how the
3 RAP 10.3(a)(6); State v. Veliz, 160 Wash. App. 396, 409 & n.5, 247 P.3d
833 (2011) (appellate court need not consider arguments unsupported by
authority).
4 RAP 2.5(a).
5 State v. Grimes, 165 Wash. App. 172, 185-86, 267 P.3d 454 (2011)
(quoting State v. O'Hara, 167 Wash. 2d 91, 98, 217 P.3d 756 (2009)), review
denied, 175 Wash. 2d 1010 (2012).
No.68958-4-1 / 7
alleged constitutional error actually affected his rights at trial.6 Sommer argued in
his opening brief that the phone records provided vital corroboration for Lee's
testimony that he called her in violation of a court order. But the State points out,
and the record confirms, that Lee's testimony was also corroborated by photos of
her cell phone screens. The State also correctly notes our recent holding in a
similar case that no manifest error occurred in the admission of phone records
where the records proved what other evidence had already established.7
Despite filing a reply brief, Sommer did not respond to the State's arguments.
In light of the State's arguments, which we find persuasive, and Sommer's
failure to respond to them, we conclude he has failed to carry his burden of
demonstrating manifest error.
Last, Sommer argues, and the State concedes, that the combination of his
terms of confinement and community custody exceeds the statutory maximum
sentence for his offenses. We accept the concession and remand for the trial
court to either amend the community custody term or resentence Sommer
consistent with RCW 9.94A.701(9).8
6 State v. Kirkman, 159 Wash. 2d 918, 926-27, 155 P.3d 125 (2007).
7 State v. Fraser, 170 Wash. App. 13, 24-29, 282 P.3d 152 (2012), review
denied, 176 Wash. 2d 1022 (2013).
8 See State v. Boyd, 174 Wash. 2d 470, 473, 275 P.3d 321 (2012).
No.68958-4-1 / 8
We affirm Sommer's convictions but remand his sentence for proceedings
consistent with this opinion.
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WE CONCUR:
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