State Of Washington v. Charles Randall Turner, Sr. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 77963-0-1
)
Respondent, )
)
v. )
)
CHARLES RANDALL TURNER, SR., ) UNPUBLISHED OPINION
)
Appellant. ) FILED: August 5, 2019
)
VERELLEN, J. — Charles Turner, Sr. appeals his convictions for residential
burglary with a deadly weapon and felony violation of a domestic violence no
contact order with a deadly weapon. Turner contends the jury instructions allowed
him to be convicted of an uncharged crime because of differences between the
charging document and the jury instructions. But Turner fails to show the
discrepancies added to the State's burden at trial or risked jury confusion.
He also takes issue with a jury instruction that he argues let him be
convicted of committing residential burglary in his own home. But the jury
instruction correctly stated the law, and Turner's factual argument relies on second
guessing credibility determinations by the jury.
Turner contends absence of a unanimity instruction for an alternative
means crime resulted in a nonunanimous conviction in violation of article I, section
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22 of the Washington State Constitution. But this argument relies on case law
disclaimed by our Supreme Court, and he fails to show the alternative means
alleged lacked substantial evidence.
Turner also contests imposition of the deadly weapon sentencing
enhancements because he contends the enhancement lacked substantial
evidence. The record shows otherwise.
Finally, Turner argues and the State agrees that the court improperly
imposed a criminal filing fee and a DNA1 collection fee.
Therefore, we affirm Turner's conviction and remand so the invalid fees can
be stricken.
FACTS
Since December 2011, a domestic violence no-contact order has prohibited
Turner, Lisa Turner's2 husband of over 30 years, from contacting her or coming
within 300 feet of her person or residence.3 Lisa lived in a two-bedroom apartment
with Gary White.4 Only White's name was on the lease, although both of them
paid rent and had their own bedrooms.5
1 Deoxyribonucleic acid.
2 Because both Lisa and Charles share a last name, we refer to Lisa by her
first name for clarity.
3 Ex. 26; Report of Proceedings(RP)(Oct. 17, 2017) at 269.
4 Id. at 236.
5 Id. at 236-39.
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No. 77963-0-1/3
Turner had already been convicted twice of violating a no-contact order6
when, in November of 2016, he moved in with Lisa.7 On April 2, 2017, Lisa and
Turner had a loud, drunken argument that turned violent.8 The night ended with
both of them bleeding, with Turner getting arrested, and with both of them being
treated at hospitals for their injuries.8
The State charged Turner with second degree assault of Lisa, with
committing residential burglary by entering and remaining "unlawfully in the
dwelling of Lisa Turner, located at 15326 40th Ave. W.#2, Lynnwood," and with
violating a no-contact order." Each charge carried the potential of a deadly
weapon enhancement for use of a knife.11
The jury found Turner not guilty of assault.12 It found him guilty of burglary
and violating the no contact order, both while armed with a deadly weapon."
Because Turner's criminal history qualified him as a persistent offender under
RCW 9.94A.570, the court sentenced him to lifetime confinement without the
6 RP (Oct. 19, 2017) at 419.
7 RP (Oct. 17, 2017) at 237.
8 Id. at 241-43, 245.
9 1d. at 277-78, 292-94, 306-07; RP (Oct. 19, 2017) at 454-55.
10 Clerk's Papers(CP) at 84-85.
11 Id.
12 CP at 35-36.
13 CP at 37-38, 41-42.
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possibility of parole.14 The court also imposed a criminal filing fee and a DNA
collection fee.15
Turner appeals."
ANALYSIS
Turner contends his conviction for residential burglary violated his due
process rights. We review constitutional issues de novo.17
Turner argues the information failed to "give[] notice that he might be
convicted of burglarizing . . . a particular residence (identified by address)."15 But
about one month before trial, the State filed an amended information accusing
Turner of committing residential burglary:
That the defendant, on or about the 2nd day of April, 2017, with
intent to commit a crime against a person or property therein, did
enter and remain unlawfully in the dwelling of Lisa Turner, located at
15326 40th Ave. W.#2, Lynnwood; proscribed by
RCW 9A.52.025.(191
Contrary to Turner's contention, the information clearly stated the address of the
particular residence he was accused of burglarizing. Turner had notice.
14 CP at 9, 11; RP (Dec. 28, 2017) at 17-18.
15 CP at 13.
16 We note Turner violated RAP 10.3(g) and RAP 10.4 by failing to identify
and set out the jury instructions he alleges were erroneous. Because his
procedural failing did not hinder the State's ability to identify the allegedly
erroneous instructions and respond, Resp't's Br. at 7, 11, 14, we will consider his
arguments only as to those instructions identified by the State. RAP 1.2(a), (c).
17 State v. Armstrong, 188 Wash. 2d 333, 339, 394 P.3d 373(2017).
18 Reply Br. at 4.
19 CP at 84-85.
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Turner argues that because the information charged him with remaining "in
the dwelling of Lisa Turner" but the jury instructions did not so specify, the jury
could have convicted him of the uncharged crime of burglarizing White's
residence.2° The State argues it had no burden to prove and the jury had no need
to find that the dwelling was Lisa's because the phrase "of Lisa Turner" was
surplus and nonessentia1.21
Article I, section 22 of the Washington State Constitution prohibits trying an
accused for uncharged offenses.22 Accordingly, an information "must state all the
essential statutory and nonstatutory elements of the crimes charged."23 But
"surplus language in a charging document may be disregarded" at trial and left
unproven unless the jury instructions repeated the surplus language.24 Because
the jury instructions do not repeat the allegedly surplus language,25 the question is
whether the phrase "of Lisa Turner" was required to correctly state the elements of
residential burglary.
20 See Appellant's Br. at 11, 15 ("The evidence presented at trial raised a
factual question of whether the apartment [in the information] was indeed Lisa's
dwelling at the time of the incident. The instructions did not inform the jury that in
order to convict [Turner,] it had to resolve this question and find beyond a
reasonable doubt that the apartment was in fact Lisa's dwelling at the time of the
incident.").
21 Resp't's Br. at 7-8.
22 State v. Pelkey, 109 Wash. 2d 484, 487, 745 P.2d 854 (1987).
v. Tvedt, 153 Wash. 2d 705, 718, 107 P.3d 728(2005)(citing U.S.
23 State
CONST. amend. 6; WASH. CONST. art. I, § 22; CrR 2.1(a)(1); State v. McCarty, 140
Wash. 2d 420, 424-25, 998 P.2d 296 (2000)).
24 Tvedt, 153 Wash. 2d at 718.
25 CP at 60.
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Under RCW 9A.52.025(1), "[a] person is guilty of residential burglary if, with
intent to commit a crime against a person or property therein, the person enters or
remains unlawfully in a dwelling other than a vehicle." A person "enters or remains
unlawfully" when he "is not licensed, invited, or otherwise privileged to so enter or
remain."26 RCW 9A.52.025(1) does not require naming the owner of the dwelling
allegedly burglarized. The information accurately identified the address of the
dwelling in question, making the phrase "of Lisa Turner" superfluous. Thus, the
phrase was mere surplus in the information and did not need to be proved at trial.
Turner fails to show harm to his due process rights.
Turner contends the court improperly instructed the jury and let him be
convicted of burglary for remaining in his own home.27 We review jury instructions
de novo for legal errors.28
Jury instruction 16 defined the phrase "enters or remains unlawfully" for
purposes of residential burglary:
A person enters or remains unlawfully in or upon premises when he
or she is not then licensed, invited, or otherwise privileged to so
enter or remain.
A person who is prohibited by court order from entering a premises
cannot be licensed, invited, or otherwise privileged to so enter or
remain on the premises by an occupant of the premises.[29]
26 RCW 9A.52.010(2).
27 Appellant's Br. at 16-19.
28 State v. Dreewes, 192 Wash. 2d 812, 819, 432 P.3d 795 (2019).
29 CP at 62.
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An accused person can be guilty of burglarizing his own property, including
when the accused enters a property in violation of a no contact order.3° Even if
the person protected by the no contact order authorizes entry, that permission
"cannot override a court order excluding a person from the residence."31 The jury
instruction properly stated the law.
Because the no-contact order here prohibits Turner from contacting Lisa
and from coming within 300 feet of her residence,32 Turner's argument turns on
whether Lisa occupied the residence. Turner testified he rented a bedroom in the
residence, and Lisa did not live there at the time.33 Lisa and White both testified
she occupied the residence and lived there before Turner, but she allowed Turner
to move in with her despite the no-contact order.34 Had the jury believed Turner's
testimony, then he could not have been found guilty because his presence in his
own home could not have been made unauthorized by Lisa showing up.35 But
30 State v. Sanchez, 166 Wash. App. 304, 308, 271 P.3d 264 (2012).
31 Id. at 310. Turner relies on State v. Wilson, 136 Wash. App. 596, 150 P.3d
144 (2007), to argue an accused person subject to a no contact order cannot be
guilty of violating that order and committing burglary when the protected person
visits the accused at home. App. Br. at 16-17. But Wilson is only applicable
where, unlike here, a no contact order prohibits contact only with the person and
does not limit contact with a person's residence. Wilson, 136 Wash. App. at 612.
32 Ex. 26.
33 RP (Oct. 19, 2017) at 446, 447,459.
34 RP (Oct. 17, 2017) at 237-40, 270-72.
35 SeeWilson, 136 Wash. App. at 612(holding "as a matter of law that Wilson
could not have burglarized the 1123 East Park residen[ce] by entering and
remaining unlawfully because it was his residence and neither a court order nor
Sanders had lawfully excluded him from it.").
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No. 77963-0-1/8
because the jury found Turner guilty of residential burglary, it must have weighed
the conflicting testimony and found Lisa and White more credible than Turner.
"We must defer to the trier of fact on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence."36 Credibility
determinations are not reviewable on appea1.37 Thus, we decline to second guess
the jury's necessary conclusion that Turner was in Lisa's residence.
Turner argues his right to a unanimous verdict was violated because the
court did not give a unanimity instruction for the alternative means crime of
violating a no contact order.38 But this instruction, while generally preferable, is
not always reguired.39
Article 1, section 21 of our state constitution provides criminal defendants
the right to a unanimous jury verdict. "But in alternative means cases, where
substantial evidence supports both alternative means submitted to the jury,
unanimity as to the means is not reguired."4° Only when one of the means
36 Id. at 604 (citing State v. Walton, 64 Wash. App. 410, 415-16, 824 P.2d 533
(1992)).
37 Id. (citing State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990)).
38 Appellant's Br. at 20. Felony violation of a no-contact order is an
alternative means crime. See State v. Joseph, 3 Wn. App.2d 365, 369-70, 416
P.3d 738(2018)(analyzing felony violation of a no-contact order as an alternative
means crime).
39 Armstrong, 188 Wash. 2d at 344. Turner relies on State v. Owens, 180
Wash. 2d 90, 95, 323 P.3d 1030 (2014), to argue the right to a unanimous jury verdict
extends to the means by which a crime was committed. Appellant's Br. at 20-21.
But the Supreme Court expressly rejected both this argument and the statement in
Owens used to support it. Armstrong, 188 Wash. 2d at 342, 342 n.4.
40 Armstrong, 188 Wash. 2d at 340 (citing State v. Sandholm, 184 Wash. 2d 726,
732, 364 P.3d 87(2015); State v. Ortega-Martinez, 124 Wash. 2d 702, 705, 881 P.2d
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charged to the jury lacks sufficient evidence is "a 'particularized expression' of jury
unanimity required."'"
The issue is whether substantial evidence supported both alternative
means by which the jury could convict Turner for felony violation of a no contact
order. Evidence is sufficient if it permits any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt when viewed in a light
most favorable to the State.42 A claim of insufficiency admits the truth of the
State's evidence and all inferences that reasonably can be drawn from it.43
To convict Turner, the State had to prove that "(a)[Turner's] conduct was
reckless and created a substantial risk of serious physical injury to another person
or (b)[Turner] has twice been previously convicted for violating the provisions of a
court order."44
The State proved alternative (b) because Turner stipulated to having been
previously convicted twice for violating a court order.45 And the State presented
substantial evidence for alternative (a). White and Lisa both testified that Turner
231 (1994); State v. Whitney, 108 Wash. 2d 506, 508, 739 P.2d 1150 (1987); State v.
Franco, 96 Wash. 2d 816, 823,639 P.2d 1320 (1982)).
41 State v. Woodlyn, 188 Wash. 2d 157, 165, 392 P.3d 1062(2017).
42 Armstrong, 188 Wash. 2d at 341 (quoting Ortega-Martinez, 124 Wash. 2d at
708).
43 Wilson, 136 Wash. App. at 604 (quoting State v. Salinas, 119 Wash. 2d 192,
201, 829 P.2d 99 (1980)).
44 CP at 65. The State also had to prove that Turner was subject to a no
contact order on April 2, 2017; that he knew of the existence of the order; that he
knowingly violated the order on April 2, 2017; and that these events occurred in
Washington. Id. Turner does not contest whether the State proved these.
45 RP (Oct. 19, 2017) at 419.
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No. 77963-0-1/10
pulled Lisa's head back and held a knife to her neck.46 The police officers who
investigated found blood on the knife Turner held to Lisa's neck.47 Lisa testified
she bled "a lot of blood" after Turner cut her with the knife." The emergency room
doctor who saw Lisa said she had a laceration just beneath the bottom corner of
her left jaw and "had a fair amount of blood on her, particularly [her] neck and over
the shirt."49 He also testified the laceration Lisa received "absolutely" could be
dangerous.53 The emergency room worker who treated Lisa testified the wound
required seven stitches to close.51 Lisa also told the EMTs who responded to the
911 call that she had been "stabbed by her husband."52 Based on this testimony,
a rational juror could certainly infer that Turner acted recklessly and created a
substantial risk of serious harm to Lisa.
Turner contends the jury rejected this evidence because it found him not
guilty of second degree assault.53 But the jury's rejection of second degree
assault does not prove Turner,acted safely or negate the evidence presented at
trial. Conduct can be reckless and create a substantial risk of serious harm
without constituting intentional second degree assault. Because substantial
evidence viewed in a light most favorable to the State supports both alternative
46 RP (Oct. 17, 2017) at 245, 277, 279.
47 Id. at 197, 202, 236.
49 Id. at 277.
49 Id. at 294-95.
5° Id. at 295.
51 RP (Oct. 19, 2017) at 410-11, 418.
52 Id. at 415.
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means presented to the jury, Turner's right to a unanimous jury verdict was not
violated.
Turner argues jury findings on the deadly weapon enhancement were
unsupported because the evidence did not show a nexus between his crimes and
the knife.54
A person is armed with a deadly weapon if it is easily accessible and ready
for use.55 But mere possession is insufficient because there must be a nexus
between the defendant, the crime, and the weapon.58 We analyze the nature of
the crime, the type of weapon, and the circumstances to ascertain whether a
nexus exists.57 Where "the facts and circumstances support an inference of a
connection. . . sufficient evidence exists."58
Here, Turner obtained the knife only because he knowingly violated the no
contact order and remained in the residence without authorization.59 And he held
the knife up to Lisa's neck after she told him to leave.80 This shows a nexus
between Turner's crimes, the circumstances, and possession of the knife.
53 Appellant's Br. at 26.
54 Id. at 24, 27.
55 Statev. Brown, 162 Wash. 2d 422, 431, 173 P.3d 245(2007)(citing State v.
Easterlin, 159 Wash. 2d 203, 208-09, 149 P.3d 366, 370(2006)).
56 Id.
57 Id. (citing State v. Schelin, 147 Wash. 2d 562, 570, 55 P.3d 632(2002)).
58 Easterlin, 159 Wash. 2d at 210.
59 Ex. 26; RP (Oct. 17, 2017) at 276-77.
89 RP (Oct. 17, 2017) at 243, 276-77.
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As a final matter, the State concedes both the criminal filing fee and DNA
collection fee should be stricken.61
Therefore, we affirm Turner's conviction and remand so the invalid fees
may be stricken.
WE CONCUR:
1717av A•U:
61 Resp't's Br. at 18-19.
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