State Of Washington v. Nicholas Orn ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, )
) No. 78089-1-1
Respondent, )
) DIVISION ONE
v. )
)
NICHOLAS CONAN ORN, ) UNPUBLISHED OPINION
)
Appellant. )
) FILED: November 18, 2019
SMITH, J. — Nicholas C. Orn appeals his conviction for attempted first
degree murder. He argues that the jury was improperly instructed and that the
trial court erred by excluding evidence that the victim was involved in a later
incident that led to his becoming a confidential informant. In a statement of
additional grounds for review, Orn also argues that he was deprived of his right to
confront witnesses because the State decided not to call Ian Warmington, one of
the detectives who processed the crime scene.
We hold that the jury was properly instructed because the jury instructions,
taken as a whole, properly informed the jury of the applicable law, were not
misleading, and allowed Orn to argue his theory of the case. We also hold that
because the evidence regarding the victim's criminal activities was properly
excluded under established evidence rules, its exclusion did not deprive Orn of
his right to present a defense or his right to confront witnesses. Finally, we
conclude that the State's decision not to call Detective Warmington did not
No. 78089-1-1/2
FACTS
This case arises from a shooting that occurred at the Rock Creek Landing
apartment complex in Kent. In May or June of 2016, the victim, Thomas Darling-
Seamans, moved in with his mother, Debra Darling, in her apartment unit at the
complex. When things became too crowded after a friend of Darling-Seamans'
also began staying at Darling's apartment, Darling rented a garage unit at the
1
I
complex so that "the kids could put their thins
thin i n the unit." Ultimately, Darling-
Seamans and his friend began living in the garage unit. Darling-Seamans
converted it into a living space, with sheets dividing the "living room" area at the
front of the garage from the beds in the back
Darling-Seamans, a self-described "proactive pothead[Xwas smoking
marijuana in the garage one day with the door open when Kimberly Boals, who
I
lived in the complex with Orn, her boyfriend, walked by and offered to pay
Darling-Seamans "a couple dollars for a hit." Darling-Seamans "was like don't
even worry about it, come on in, join." After that, Boals visited Darling-Seamans
often and "would just cry about her problems and ... her relationship" with Orn.
Although Darling-Seamans and Orn had smOked together "Mike once[,]" Darling-
Seamans did not know Orn very well: "Pie were cordial but not friends."
On July 17, 2016, Boals and Orn broke up. Boals later testified that Orn
moved out the next day, July 18, 2016. Orn took some of his belongings, left
behind other items that were either his or that he and Boals shared, and moved
in with his father.
Boals, who was not working at the time, became worried about having
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enough money to pay rent. According to her later testimony, BoaIs, assisted by
Darling-Seamans, identified some items in BoaIs's apartment that she could sell
for rent money, and placed them in a blue tote. BoaIs testified that this happened
on July 18, 2016, i.e., the same day that Orn moved out. According to Darling-
Seamans, he purchased the items in the tote from BoaIs for 60 or 70 dollars.
Additionally, BoaIs agreed to give a portable air conditioning (AC) unit to Darling-
Seamans in exchange for 40 dollars' worth of marijuana.
BoaIs and Darling-Seamans went back to Darling-Seamans' garage with
the blue tote and the AC unit and "were just chilling" when, a short time later, Orn
and his father came to the complex to pick up the rest of Orn's belongings. They
discovered BoaIs and Darling-Seamans in the garage unit, "a bunch of us
smoking weed and, you know, the AC unit was there and then the tote." BoaIs
later testified that Orn "was upset because it was obviously without his
permission." Darling-Seamans later described Orn as "[p]issed as fuck" and
"[s]haking, yelling he wanted his stuff back." Darling-Seamans gave the blue tote
to Orn. He also worked out an agreement to keep the AC unit in exchange for
paying Orn additional money for it in the future.
About two weeks later, the morning of August 2, 2016, Orn went to BoaIs's
apartment. According to BoaIs's later testimony, the two went to the bank, had a
meal, and "kind of just had said our good-byes, kind of more mutual,... you
know, maybe we can be friends." Boals recalled that when the two parted ways
that early afternoon,"we were pretty calm. It was kind of like the good-bye, you
know, you kind of would want in a relationship, kind of see you around and stay
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No. 78089-1-1/4
in contact kind of thing."
Later that evening, around 8:30 or 9:00 p.m., Boals was walking back from
the garbage dumpster after throwing some things away when she saw Orn pull
up and get out of his car with a rifle. Boals later testified that Orn was "angry,
irrational, not in a good state of mind" and that he was acting "totally. . .
opposite, like a flip" from the way he had been acting when she saw him earlier
that day. Boals testified that Orn was upset nd that "he was going to go
confront [Darling-Seamans]." Although she could not recall exactly what Orn
said, she testified that Orn "had the gun and he was going to at least threaten
and/or shoot [Darling-Seamans]." The two ultimately made their way to Boals's
apartment. Boals later testified that while they were standing in the kitchen, Orn,
who had brought his rifle with him, "put the clip on the gun." Boals testified that
she was frightened and threatened to get law enforcement involved. Boals
recalled that Orn "didn't seem concerned" or said something to the effect of, "I
don't want to hurt you as well, ... don't do that." Boals recalled threatening
again to "call the cops or get help of some kind . . . to stop this from happening[,]"
and then Orn walked out the door with his pin. Boals went to the bathroom
"because at that point, I mean, I had—there was nothing I could do."
As Boals was finishing up in the bathroom, Orn walked into the doorway
and, according to Boals, "had the rifle under his chin and was threatening
himself." Boals later testified that she said "don't do that," but that Orn said, "I'm
going to do it because I just shot[Darling-Semans] like 20 times." Boals
recalled that she was shocked, ran past Orn out of the apartment, discovered
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No. 78089-1-1/5
Darling-Seamans shot and bleeding, and ran to try to get help.
Darling-Seamans, who at the time was working a night shift, later testified
that he had been lying the couch in his garage before going to work when, all of a
sudden, the door "just kind of yanked open, and . . . 1 jerked up and saw[Om]
standing there pointing a gun at me as he asked real quick where's my stuff at."
Darling-Seamans testified that he stood up, said "dude," and "that was pretty
much it." "It was like right when I stood up, it was over. I got hit right here first
time, shot me to the side and just littered my whole left side with bullets."
Darling-Seamans testified that when the shooting began, he went into "flight"
mode and turned around and ran toward the back of his garage while Orn was
"still standing there just ping, ping, ping like I m a little duck, and he was just like
on me, on me, on me, on me." Darling-Seamans testified that he tried to take
cover underneath a dirt bike in the back of his garage. "I just kind of tucked
underneath and I was right by my bed, and Icouldn't tell if he came in or not. I
was still getting layered with bullets." When the shooting stopped, Darling-
Seamans got to his feet, stumbled toward the apartment complex, and banged
on a door for help. At least two neighbors cOed 911, Kent police responded to
the scene, and Darling-Seamans was taken to Harborview. Although Darling-
Seamans suffered numerous bullet wounds, he survived.
The State charged Orn with one count of assault in the first degree and
one count of attempted murder in the first degree. Before trial, the State moved
in limine to exclude evidence that Darling-Seamans "was being employed by the
Kent Police Department as a confidential informant based upon a completely
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No. 78089-1-1/6
unrelated situation." Specifically, the State moved "to exclude defense from
introducing any evidence of this arrangement, as well as the underlying alleged
criminal activity the victim may be involved in, which led to his agreement with
Kent Police." Meanwhile, Orn moved in limine to admit that evidence, arguing
that "[s]uch instances of potentially avoidable prosecution by the same police
department at issue herein, reflect bias, lack oftruthfulness, and bad acts-motive,
intent, absence of mistake, and concerns the same subject matter at issue
herein, to wit., stolen property, firearms." The trial court ruled that it would allow
only "very limited inquiry on this." It explained that although it would not allow
any questioning "regarding the agreement itself or the nature of the agreement or
the case[,]" it would allow defense counsel to ask Darling-Seamans something to
the effect of,"and isn't it true that since the incident you've. . . done some work
with the Kent Police Department?" It reasoned that this limited inquiry was
relevant to Darling-Seamans' potential bias.
Later, after Darling-Seamans testified that he "just stay[s] proactive in not
doing anything out of the question really[,]"Orn asked the trial court to reconsider
its ruling. Specifically, Orn's counsel requested the court's permission to ask
Darling-Seamans,"Is it true you've been arrested by the police and you have a
deal, agreement with the police to help them on narcotics, stolen property,
firearms in return for nonforwarding of the allegation to the prosecutor, correct?"
Orn argued that Darling-Seamans had "open[ed] the door" to this line of
questioning when he testified to the effect that he was not doing anything "out of
the question." The trial court disagreed and stood by its earlier ruling, explaining
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No. 78089-1-1/7
that "I don't think that that opens the door to impeach him on every wrong thing
he might have done in his life."
A jury found Orn guilty of both assault in the first degree and attempted
murder in the first degree, in each case while armed with a firearm. The court
vacated the assault conviction and adjudged Orn guilty of attempted murder in
the first degree with a firearm enhancement. Orn appeals.
ANALYSIS
July Instructions.
Orn argues that reversal is required because the court's to-convict
instruction failed to instruct the jury on each element of attempted first degree
murder. We disagree.
"The due process clause of the Fourteenth Amendment to the United
States Constitution requires that jury instructions adequately convey to the jury
that the State bears the burden of proving 'every element of the crime charged
beyond a reasonable doubt." State v. lmokawa, No. 96217-1, slip op. at 6
(Wash. Oct. 10, 2019), http://www.courts.wa gov/opinions/pdf/962171.pdf
(quoting State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002)). "When a
defendant challenges the adequacy of specific jury instructions informing the jury
of the State's burden of proof, we review the challenged instructions de novo in
the context of the instructions as a whole." lmokawa, slip op. at 6-7.
"Instructions satisfy the requirement of a fair trial when, taken as a whole, they
properly inform the jury of the applicable law are not misleading, and permit the
defendant to argue his [or her] theory of the case." Imokawa, slip op. at 7
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No. 78089-1-1/8
(alteration in original)(quoting State v. Till, 139 Wn.2d 107, 126, 985 P.2d 365(1999)).
"Generally, it is sufficient to explicitly instruct the jury that the State must
prove beyond a reasonable doubt the statutory elements of the crime." Imokawa,
slip op. at 7. To that end, RCW 9A.28.020(1) defines the elements of criminal
attempt and provides,"A person is guilty of an attempt to commit a crime if, with
intent to commit a specific crime, he or she does any act which is a substantial
step toward the commission of that crime." In other words,"an attempt crime
contains only two elements—[1] intent to coMmit a specific crime and [2] taking a
substantial step toward the commission of that crime." State v. Nelson, 191
Wn.2d 61, 74, 419 P.3d 410 (2018).
Here, the court's to convict instruction which is consistent with WPIC
100.02, instructed the jury as follows:
To convict the defendant of the crime of attempted murder in
the first degree, as charged in Count I, each of the following
elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about August 2, 2016, the defendant did an
act that was a substantial step toward the commission of murder in
the first degree;
(2) That the act was done with the intent to commit murder in
the first degree; and
(3) That the 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 I.
On the other hand, if, after weighing all 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 LP]
1 WPIC 100.02 provides:
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No. 78089-1-1/9
The court provided another instruction, Instruction No. 10, which defined murder
in the first degree:"A person commits the crime of murder in the first degree
when, with premeditated intent to cause the death of another person, he or she
causes the death of such person
The court's instructions were adequate. Specifically, the to-convict
instruction set forth both statutory elements Of attempt; no elements were missing
from the instruction. Additionally, when taken together, the instructions informed
the jury of the applicable law, were not misleading, and permitted Orn to argue
his theory of the case. To this end, Orn indicated in his trial memorandum that
he "anticipates that the evidence presented in trial will include that the Defendant
was not acting with premeditated intent or with a design to kill." And his counsel
argued at length in closing that the evidence was insufficient to prove that Orn
To convict the defendant of the crime of attempted (fill in crime),
each of the following elements of the crime must be proved beyond
a reasonable doubt:
(1) That on or about (date), the defendant did an act that
was a substantial step toward the commission of (fill in
crime);
(2) That the act was done with the intent to commit (fill in
crime); and
(3) That the 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.
On the other hand, if, after weighing all 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.
I
11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 100.02, at 434 (4th ed. 2016).
2 The language omitted from the end qf Instruction No. 10 was related to
Orn's self-defense claim and is not relevant here.
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No. 78089-1-1/10
had the requisite mental state. Therefore, reversal is not required.
Orn disagrees. He contends that premeditation is an essential element of
attempted first degree murder. Thus, he argues, the trial court committed
reversible error when it omitted premeditation from the to-convict instruction. Orn
I
chiefly relies on State v. Vangerpen, 125 Wn.2d 782, 888 P.2d 1177 (1995), to
support his argument, but his reliance on Vanoerpen is misplaced for two
reasons.
First, Vangerpen did not hold that premeditation is an essential element of
attempted first degree murder. Instead, as Orn himself acknowledges, the State
conceded in Vangerpen that premeditation was an essential element; therefore,
that issue simply was not before the court. See Vangerpen, 125 Wn.2d at 785-
86; see also State v. Boswell, 185 Wn. App. 321, 336, 340 P.3d 971 (2014)
("Vangerpen does not articulate what the essential elements of attempted first
degree murder are.").
Second, Vancierpen involved a challenge to a charging document, not a
challenge to a jury instruction. Vangerpen, 125 Wn.2d at 787. "The rule that a
charging document must include all essential elements of a crime is grounded in
the constitutional requirement that defendants be informed of the nature and
i
cause of the accusation against them, in addition to due process concerns
regarding notice." State v. Taylor, 140 Wn.2d 229, 236, 996 P.2d 571 (2000).
Meanwhile, "'a to convict instruction must contain all of the elements of the crime
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because it serves as a yardstick by which the jury measures the evidence to
determine guilt or innocence." State v. DeRvke, 149 Wn.2d 906, 910, 73 P.3d
10No. 78089-1-1/11
1000(2003)(internal quotation marks omitted)(quoting State v. Smith, 131
Wn.2d 258, 263, 930 P.2d 917 (1997)). In other words, the to-convict instruction
ensures "that the jury is not left guessing at the meaning of an element of the
crime and that the State is not relieved of its burden of proving each element of
the crime." State v. Saunders, 177 Wn. App. 259, 261, 311 P.3d 601 (2013).
Therefore, "the fact that a portion of a definition must be included in a[]...
[charging document] does not mean it is essential to a to-convict instruction."
Saunders, 177 Wn. App. at 270. Thus, Vangerpen does not control.
Rather, DeRvke is instructive here. In that case, our Supreme Court
reiterated that the crime of attempt has only two elements. DeRvke, 149 Wn.2d
at 910. It also expressly approved of instructing the jury on attempt using WPIC
100.02 and using a separate instruction to set forth the elements of the crime
allegedly attempted. DeRyke, 149 Wn.2d at 911. Indeed, the Supreme Court
itself later characterized DeRyke as "reiterat[ing] . . . that an attempt instruction
does not have to provide the elements of the crime allegedly attempted." Nelson,
191 Wn.2d at 74(emphasis added). Here, by instructing the jury on attempt
1
through WPIC 100.02 and using a separate instruction to set forth the elements
of first degree murder, the trial court followed the same approach expressly
approved of in DeRvke. This was not error. Indeed, we have relied on DeRvke
to reject exactly the argument that Orn makes here. See, e.q., State v. Jefferson,
199 Wn. App. 772, 809-10, 401 P.3d 805 (2017), rev'd on other grounds, 192
Wn.2d 225, 429 P.3d 467(2018); Boswell, 185 Wn. App. at 336-37; cf. State v.
Reed, 150 Wn. App. 761, 772, 208 P.3d 1274(2009)(rejecting the same
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No. 78089-1-1/12
argument and stating that it "conflates the intent necessary to prove an attempt
with that necessary to prove first degree murder.").
As a final matter, Orn reasons that "by requiring the jury find only that Mr.
Orn intended to commit first degree murder, the instruction told the jury it was
enough that he intended to premeditate the intent to cause death." He contends
that as a result, the instruction is similar to the defective instruction in State v.
Smith, 131 Wn.2d 258, 930 P.2d 917(1997) In Smith, which involved a
conspiracy charge, the to-convict instruction should have required the jury to find
that the defendant agreed with his alleged co-conspirators to engage in conduct
constituting the crime of first degree murder. Smith, 131 Wn.2d at 262. Instead,
the instruction required the jury to find that the defendant agreed with his alleged
co-conspirators "to engage in ... the performance of conduct constituting the
crime of Conspiracy to Commit Murder in the First Degree." Smith 131 Wn.2d
at 261 (first alteration added; emphasis added). Our Supreme Court held that
this instruction was "constitutionally defective because it purports to be a
complete statement of the law yet states the wrong crime as the underlying crime
which the conspirators agreed to carry out." Smith, 131 Wn.2d at 263(emphasis
added).
The to-convict instruction here did not suffer from the same defect.
Rather, it stated the correct crime, i.e., first degree murder, as the underlying
crime that Orn allegedly attempted to carry out. Moreover, the instruction in
Smith was, as a result of the defect, entirely circular: It instructed the jury to find
the defendant guilty of conspiracy if he engaged in conduct constituting
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No. 78089-1-1/13
conspiracy. Thus, as the Smith court explained, the instruction "fails to state the
law completely and correctly." Smith, 131 Wn.2d at 263. Here, by contrast, the
to-convict instruction completely and correct y stated the law. Specifically, it
required the jury to find that Orn "did an act that was a substantial step toward
the commission of murder in the first degree' and that "the act was done with the
intent to commit murder in the first degree." When taken together with the
definition of murder in the first degree, the instruction required the jury to find that
the act was done with the intent to "with a premeditated intent to cause the death
of another person,... cause[]the death of such person." In other words, the
jury could not have convicted Orn of attempted first degree murder without
finding that he intended to cause the death of another person with premeditated
intent to cause the death of another person. The instruction did not relieve the
State of its burden.
Exclusion of Evidence of Darling-Seamans'Criminal Activities
Orn argues that by excluding evidence of Darling-Seamans' criminal
activities underlying his confidential informant arrangement with law enforcement,
the trial court deprived him of his Sixth Amendment rights to confront witnesses
and to present a defense. We disagree.
We review de novo a claim of denial of Sixth Amendment rights. State v.
Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010). The Sixth Amendment to the
United States Constitution guarantees the defendant a right to defend against
,
criminal allegations. State v. Ward,8 Wn. App. 2d 365, 370, 438 P.3d 588(2019). It also guarantees the defendant the right to confront and cross-examine
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No. 78089-1-1/14
adverse witnesses. State v. Darden, 145 Wn.2d 612, 620,41 P.3d 1189 (2002).
But these rights are not absolute, and "'[t]he accused does not have an
unfettered right to offer [evidence] that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence." State v. Lizarraga, 191 Wn.
App. 530, 553, 364 P.3d 810(2015)(second alteration in original)(quoting Taylor
v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)); see also
Holmes v. South Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 164 L. Ed. 2d
503(2006)(observing that the Constitution permits judges to exclude evidence
under well-established rules of evidence). To that end, we review rulings on the
admissibility of evidence for abuse of discretion, and we may affirm such rulings
on any basis supported by the record. State v. Kennealy, 151 Wn. App. 861,
879, 214 P.3d 200 (2009).
Here, Orn does not analyze whether the trial court abused its discretion
under the evidence rules when it excluded evidence of Darling-Seamans'
criminal activities. But it did not. Specifically, ER 404(b) provides that
"[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith." That said,
the trial court has discretion to admit otherwise inadmissible evidence on cross-
examination "if the witness 'opens the door' during direct examination and the
evidence is relevant to some issue at trial." State v. Stockton, 91 Wn. App. 35,
40, 955 P.2d 805 (1998). "For example, when a witness testifies to his good
character on direct examination, the opposing party is entitled to make further
inquiries on the subject during cross-examination even though that evidence
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No. 78089-1-1/15
would otherwise be inadmissible." Stockton, 91 Wn. App. at 40. "But a passing
reference to a prohibited topic during direct does not open the door for cross-
examination about prior misconduct." Stockton, 91 Wn. App. at 40.
Darling-Seamans' statement that he is a "proactive pothead" who "just
stay[s] proactive in not doing anything out of the question really" was at most a
passing reference to his character. It does nOt, as Orn would have us believe,
constitute an affirmative statement that he is '"law-abiding." Indeed, Darling-
Seamans volunteered during his direct testimony that on the night of the shooting
he had taken "Ecstasy," a drug he acknowledged was illegal. Thus, the trial court
did not abuse its discretion by ruling that Darling-Seamans' testimony did not
open the door to the otherwise inadmissible evidence of his criminal activities.
There was no evidentiary error here. And because Orn does not argue that the
trial court applied an evidentiary rule that was arbitrary or disproportionate to the
ends it was designed to serve, there also was no constitutional error. Cf.
Holmes, 547 U.S. at 326 ("[T]he Constitution . . . prohibits the exclusion of
defense evidence under rules that serve no legitimate purpose or that are
disproportionate to the ends that they are asserted to promote.").
Instead of analyzing the trial court's ruling under the evidence rules, Orn
argues that "the evidence was admissible unless the State could establish its
admission would prejudice the fact-finding process." He relies on State v. Jones
to support his argument. But Jones involved the trial court's exclusion of
"evidence of extremely high probative value" constituting the defendant's "entire
defense." Jones, 168 Wn.2d at 721. Here, Orn sought to introduce evidence of
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No. 78089-1-1/16
Darling-Seamans' criminal activities to call his credibility into question; the
evidence was not Orn's entire defense. Therefore, Jones is readily
distinguishable and does not control.
Statement of Additional Grounds
In a statement of additional grounds for review, Orn alleges that the State
"[b]urned" Detective Warmington as a witness by deciding not to call him to
testify and then allowing him to be present in the courtroom during another
detective's testimony. He alleges further that "[d]efense was made aware of this
only after-the-fact" and that "[t]his prevented us from cross-examination of the
witness because the prosecut[o]r didn't call on him for examination, and kept
[d]efense from calling him . . . due to his being present to [another detective]'s
related testimony." Orn argues that, as a result, his right to confront witnesses
was violated because he was unable to "confront Detective Warmington's
1
[e]vidence collection, and his [g]raphs presented to the jury."
But the State is not required to call every witness on its list. And the point
at which Orn's counsel became aware of the State's decision, as well as whether
Detective Warmington was present for another witness's testimony, are matters
!
outside the record that we do not consider in this direct appeal. State v.
McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Furthermore, Orn had
the opportunity to cross-examine Detective Moore, who handled the evidence
collection with Detective Warmington and created the crime scene diagram with
Detective Warmington. Therefore, Orn's argument fails.
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No. 78089-1-1/17
We affirm.
WE CONCUR:
17