State Of Washington v. Rodney E. Mans ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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RODNEY EUGENE MANS, ) (Jo c, —
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) FILED: April 29, 2019
ANDRUS, J. — Rodney Mans appeals his conviction and sentence for
second-degree burglary and felony violation of a court order. He argues that the
instruction defining recklessness relieved the State of its burden of proof and that
the trial court coerced the jury into entering findings on two alleged aggravating
factors by instructing the jury to correct errors on the verdict forms. But the jury
instructions were not erroneous under State v. Johnson, 180 Wash. 2d 295, 325 P.3d
135(2014). And Mans fails to demonstrate judicial coercion. We therefore affirm.
FACTS
Rodney Mans and Theresa Lopez had a two-year relationship and had a
daughter together. In March 2016, after the birth of their child, Mans assaulted
Lopez at a shopping mall, resulting in the entry of a no-contact order. Lopez
nevertheless remained in touch with Mans thereafter because she loved him and
wanted to make the relationship work. The two continued to communicate via text
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message. The relationship, however, remained difficult with Mans accusing Lopez
of sleeping around. About a month after entry of the no-contact order, Mans came
to the house Lopez shared with her father, ringing the door bell and pounding on
the door until he broke the screen door. Lopez called the police because she was
scared. This scenario repeated itself three or four times.
There were times, however, that Lopez allowed Mans to enter the home,
and the two would end up having sex. She sometimes allowed him to sleep in the
car in the garage when he had nowhere else to sleep. Her father refused to permit
Mans to sleep in the house.
On the morning of October 21, 2016, after Lopez's father had left for work,
Mans showed up at Lopez's home. Thinking her father had returned, Lopez got
up out of bed to open the door. Mans pushed his way into the house and the two
began to fight. During the struggle, Lopez testified that Mans choked her to the
point where she thought she "was going to die." She testified that at some point,
he was on top of her while she lay prone on the floor, hitting her in the back of her
head. She stated Mans told her he had a gun and she felt it in his hand. He let
her up after several minutes and, while pointing the gun at her, ordered her into
the bedroom.
When they saw headlights of an arriving car through the bedroom window,
Lopez told Mans her father had returned. This comment distracted Mans, allowing
Lopez to escape the house in her underwear. She called 9-1-1 from a neighbor's
home after the newspaper deliveryman refused to open his car door to let her in.
When Federal Way Police officers arrived, they were unable to locate Mans. They
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found Mans' belongings, including his coat, backpack, and an airsoft pistol used to
threaten Lopez, in the trunk of a vehicle parked in the garage.
On December 12, 2016, the State charged Mans with second degree
assault (Count I), first degree burglary (Count II), and felony violation of a court
order (Count 111). The State alleged a domestic violence aggravating factor for
each count.
On December 16, 2016, Lopez invited Mans to her home. The two engaged
in consensual sexual intercourse but were interrupted by Lopez's brother, who,
knowing about the no-contact order, called the police. Mans had again left the
premises by the time officers arrived.
In May 2017, the State amended the information to charge Mans with
another count of felony violation of a court order(Count IV)for the December 2016
incident, again alleging a domestic violence aggravating factor. The State also
alleged the aggravating factor that the crimes charged were part of an ongoing
pattern of psychological, physical, or sexual abuse.
Mans' jury trial began on May 16, 2017. The jury began deliberations on
May 23, 2017. The trial court provided the jury with verdict forms for each of the
four counts, and a Special Verdict Form. The Special Verdict Form asked two
questions as to each charge: whether Mans and Lopez were members of the same
family or household before or at the time the crime was committed and whether
the offense was part of an ongoing pattern of psychological, physical, or sexual
abuse of the victim. The court instructed the jury that if it did not find Mans guilty
of any of the four charged crimes, it should not answer the corresponding Special
Verdict Form questions. But if the jury found Mans guilty of any of the crimes, it
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should answer each question "yes" or "no" according to the decision it reached for
the relevant crime. Instruction No. 25 indicated that in order to answer the Special
Verdict Form "yes," it must unanimously be satisfied beyond a reasonable doubt
that "yes" is the correct answer. And it instructed them that "[i]f after full and fair
consideration of the evidence you are not able to reach a unanimous decision as
to the answer, do not fill in the blank on that special verdict form."
On May 26, 2017, the jury sent a note to the trial court indicating it had
reached verdicts on the burglary, and two violation of court order charges (Counts
II-1V), but it could not agree on a verdict on the assault charge (Count 1). The trial
court asked the jury foreperson to confirm on the record that the jury was
deadlocked on Count I.
Without the jury present, the trial court and the parties agreed the court
would poll the jury and if the jurors agreed they were deadlocked, the court should
declare a mistrial as to Count I. They also agreed the court would then take the
jury's verdict for Counts II through IV.
When the trial court brought the jury out, it proceeded as the parties had
agreed by polling the jury. Each juror confirmed the jury was unable to reach a
verdict as to Count I. The court asked the jury to return to the jury room, at which
time it declared a mistrial as to Count 1 and discharged the jury as to that count
only.
The trial court then brought the jury back to render its verdicts on Counts 11
through IV. The trial court reviewed the verdicts and the Special Verdict Form, and
before the clerk could read the verdict, the trial court again dismissed the jury to
speak with counsel. The trial court informed the parties that the jury had answered
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two questions on the Special Verdict Form relating to Count I, the charge for which
the trial court had just declared a mistrial, the jury had not answered the two
questions relating to Count II, and the foreperson had not signed the Special
Verdict Form. The trial court indicated its intent to bring the foreperson into the
courtroom a second time to "inquire as to what happened. It could be that . . . this
was simply as omission but I want to clarify." Neither party objected to proceeding
in this fashion.
The trial court called the jury foreperson out for a second time, and the
following exchange occurred:
COURT: On the Special Verdict. . . Form, I note that there are no
answers as to Count II, and your signature and date is not contained
on the Special Verdict Form. Can you tell me — and, again, I don't
want to know the details, but was that simply an accidental omission?
FOREPERSON: Yes, sir.
COURT: Okay. I am going to. . . send you back out.
After the foreperson left the courtroom, the trial court suggested to counsel that it
bring the jury out and instruct it to complete the forms according to the jury
instructions. Neither counsel for the State nor counsel for Mans objected to this
course of action. Defense counsel stated "I guess, Your Honor,they have verdicts.
I don't know how much we are to inquire as to the rest of the process when they
say they have a verdict." The trial court explicitly acknowledged that it did not want
to "coerce the jury into doing anything." It stated it did not deem it to be coercive
to tell the foreperson that the verdict was unsigned. Defense counsel seemed to
agree that it was permissible to just inform the jury to fill out the form according to
the jury's instructions.
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When the trial court brought the jury into the courtroom, it said: "As I
explained to the foreperson . . . some of these forms are not filled out and, I'm
. . . going to send you back with these forms and simply ask that you follow your
instructions and notify us when and if you're ready."
The jury returned approximately six minutes later, and found Mans guilty on
the remaining three counts. On the Special Verdict Form, the jury had scratched
out the answers to questions relating to Count 1, and had answered "yes," to the
two questions relating to Count II. The trial court then polled the jury to confirm
unanimity and subsequently discharged the jury.
On June 20, 2017, Mans moved to dismiss the jury's findings as to Count
II, asserting that the trial court had improperly suggested that the jury needed to fill
in an answer in the Special Verdict Form as to Count II. He argued the jury could
have left the questions blank if they had not reached a unanimous decision as to
either question, and the trial court, by suggesting the blanks were a "mistake,"
implied that the jurors needed to reach agreement in violation of CrR 6.15(0(2).
The trial court denied the motion, citing to CrR 6.16(b)for its conclusion that it was
allowed to order the jury to retire for further consideration, and to State v. Ford,
171 Wash. 2d 185, 250 P.3d 97 (2011), for its conclusion that Mans failed to show
that the jury was still deliberating and undecided when the court made its
comments.
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On July 28, 2017, the court imposed a mid-range standard sentence of 101
months on count II, 60 months on count III, and 60 months on count IV, all to run
concurrently.'
ANALYSIS
Mans first asserts that the "to-convict" instruction for violation of a court
order, when read with the definition of recklessness, relieved the State of its burden
of proving that Mans disregarded a substantial risk that death or physical injury
could occur.
We review jury instructions de novo. State v. Johnson, 180 Wash. 2d at 300.
"Jury instructions, taken in their entirety, must inform the jury that the State bears
the burden of proving every essential element of a criminal offense beyond a
reasonable doubt." Id. at 306 (quoting State v. Pirtle, 127 Wash. 2d 628, 656, 904
P.2d 245 (1995)). A to-convict instruction must contain all of the elements of the
crime "because it serves as a yardstick by which the jury measures the evidence
to determine guilt or innocence." Id. (quoting State v. Sibert, 168 Wash. 2d 306, 311,
230 P.3d 142 (2010)). Other jury instructions cannot supplement a defective to-
convict instruction. Id.
Instruction 21, the to-convict instruction for Count III, provided in pertinent
part that:
To convict the defendant of the crime of violation of a court
order as charged in Count 3, each of the following five elements of
the crime must be proved beyond a reasonable doubt:
1 It also imposed a concurrent 12 month sentence on a subsequent unrelated charge (King County
Superior Court no. 17-1-00489-4). That charge was not used in the calculation of the offender
score for this case. This court recently reversed that conviction and sentence in an unpublished
opinion. See State v. Mans, No. 77321-6-1 (Wash. Ct. App. Mar. 11, 2019) (unpublished),
http://www.courts.wa.gov/opinions/pdf/773216.pdf.
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(1) That on or about October 21, 2016, there existed a no-
contact order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly
violated a provision of this order;
(4) That
(a)the defendant's conduct was an assault that did not
amount to assault in the first orsecond degree; or
(b) the defendant's conduct was reckless and created
a substantial risk of death or serious physical injury to another
person; and
(5) That the defendant's act occurred in the State of
Washington.
Instruction 12 provided a definition of "recklessness:"
A person is reckless or acts recklessly when he or she knows
of and disregards a substantial risk that a wrongful act may occur
and this disregard is a gross deviation from conduct that a
reasonable person would exercise in the same situation.
When recklessness as to a particular fact or result is required
to establish an element of a crime, the element is also established if
a person acts intentionally or knowingly as to that fact or result.
Instruction 12 is a verbatim restatement of Washington Pattern Jury Instruction
(WPIC) 10.03, which is taken from RCW 9A.08.010(1)(c).
Mans argues that by defining recklessness as disregarding a substantial
risk that "a wrongful act may occur," Instruction 12 lowered the State's burden of
proving that Mans created a substantial risk that death or serious physical injury
would occur. This argument, however, was explicitly rejected in State v. Johnson.
In that case, a jury convicted Johnson of multiple domestic violence crimes against
his wife, including second-degree assault. Johnson argued he received ineffective
assistance of counsel when his attorney offered the generic definition of
recklessness in his proposed instructions. 180 Wash. 2d at 305. Johnson argued,
as Mans does here, that the to-convict instruction, when read in conjunction with
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No. 77322-4-1/9
the recklessness instruction, lowered the State's burden of proof because the
phrase "a wrongful act" was used instead of the more charge-specific language
"substantial bodily harm." Id.
The Supreme Court disagreed. It held the to-convict instruction correctly
articulated the elements of second-degree assault, including the element of
recklessly inflicting substantial bodily harm. Id. at 306. The generic instruction
defining "reckless" was sufficient without any charge-specific language because
the to-convict instruction included the proper language. Id. at 305.
Mans does not contend Instruction 21 failed to set out all the elements of
the charged crime. As in Johnson, Instruction 21, the to-convict instruction,
accurately set forth the elements of RCW 26.50.110(4).2 Instruction 12 contained
the general WPIC definition of reckless. Because the two instructions were proper
under Johnson, we reject this argument.
Mans next argues that the trial court improperly intervened with the jury's
deliberations because it coerced the jury into rendering a verdict as to the
aggravators for Count II. To prevail on a claim of improper judicial interference, a
defendant "must establish a reasonably substantial possibility that the verdict was
improperly influenced by the trial court's intervention." State v. Ford, 171 Wash. 2d
185, 188-89, 250 P.3d 97 (2011)(quoting State v. Watkins, 99 Wash. 2d 166, 178,
2 Under RCW 26.50.110(4):
Any assault that is a violation of an order issued under this chapter, chapter 7.92,
7.90, 9A.40, 9A.46, 9A.88, 9.94A, 10.99, 26.09, 26.10, *26.26, or 74.34 RCW, or
of a valid foreign protection order as defined in RCW 26.52.020, and that does not
amount to assault in the first or second degree under RCW 9A.36.011 or
9A.36.021 is a class C felony, and any conduct in violation of such an order that is
reckless and creates a substantial risk of death or serious physical injury to another
person is a class C felony.
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No. 77322-4-1/10
660 P.2d 1117 (1983)). This requires an affirmative showing; it cannot be based
on mere speculation. Id. But, before doing so, the defendant must make a
threshold showing that the jury was still in the deliberative process. Id.
Mans' argument is foreclosed by State v. Ford. In that case, Ford was
charged with two counts of child rape. Id. at 186. When the presiding juror alerted
the trial court that the jury had reached a unanimous verdict, the court announced
the verdict for the second count but not for the first. Id. at 186-87. After a brief
sidebar with counsel, the court alerted the jury that it had failed to complete the
verdict form for the first count. Id. at 187. Before sending the jury back to the jury
room,the court instructed the jury that the form "must be filled in." Id. Ford did not
object. Id. at 188. The jury returned four minutes later with a guilty verdict for the
first count. Id. at 187-88. The trial court then polled the jury and confirmed its
verdict was unanimous on both counts. Id. at 189.
Ford argued the trial court erred by directing the jury to complete the verdict
form for the first count. Id. at 188. Ford alleged a violation of CrR 6.15(0(2), which
prohibits a court from instructing the jury in a way that suggests the need for
agreement. Id. at 190. The Supreme Court rejected this argument because the
record showed that the jury had informed the court it had reached a verdict and,
after being instructed by the court to complete the verdict forms, it returned after
only four minutes, demonstrating the jury's deliberations were complete. Because
the jury was not still within the deliberative process, CrR 6.15(0(2) was
inapplicable. Id. at 191.
This case is analogous to Ford. Here, the jury alerted the trial court that it
had reached decisions for Counts II, III, and IV but that it could not agree on Count
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No. 77322-4-1/11
I. As a result, the court declared a mistrial as to Count I. The court then reviewed
the verdicts and the Special Verdict Form and noticed the jury had answered the
questions on the Special Verdict Form as to Count 1 but not as to Count II. The
foreperson had also failed to sign the Special Verdict Form.
Both counsel for Mans and counsel for the State agreed with the court's
suggestion to question the foreperson about the forms. When the foreperson
confirmed that it was an "accidental omission," there was no objection to the court's
suggestion that it return the verdict forms to the jury to be completed according to
the jury instructions. In fact, counsel for Mans conceded that the jury had
completed its deliberations by that point. The jury returned the completed and
signed verdict forms six minutes later. When polled, each juror stated that the
verdicts were unanimous.
The record here, like in Ford, demonstrates the jury had completed its
deliberations by the time the trial court alerted it that the Special Verdict Form was
incomplete. Mans has thus failed to make a threshold showing that the jury was
in the deliberative process when the trial court made its comments to the jury.
Thus, as in Ford, we find no violation of CrR 6.15(0(2).
Affirmed.
A-y,om,....,
WE CONCUR: