State Of Washington v. David R. Stevens ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 80606-8-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
DAVID ROBERT STEVENS, )
)
Appellant. )
)
HAZELRIGG, J. — David Stevens was convicted of one count of unlawful
possession of a firearm in the second degree following a jury trial. During trial, the
only witness called by the State testified that Stevens had “felony convictions.”
This statement violated a motion in limine related to Stevens’ stipulation that a
single prior disqualifying conviction would be presented to the jury. Following the
witness’ statement, Stevens moved for mistrial, but the motion was denied.
Stevens appeals the denial of his motion and the court’s imposition of a DNA1
collection fee at sentencing. We find no abuse of discretion as to the mistrial
motion and affirm his conviction, but remand for correction of the judgment and
sentence order to remove the discretionary fee.
1 Deoxyribonucleic acid.
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
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FACTS
David Stevens was charged with one count of unlawful possession of a
firearm in the second degree. The charge arose from events that occurred in
October 2017. In August 2019, Stevens proceeded to trial. Stevens had agreed
to submit a stipulation to the jury as to the fact of a prior felony conviction; an
essential element that the State was required to prove.
At trial, the State’s only witness was Washington State Department of Fish
and Wildlife Officer Nicholas Jorg. Jorg testified he was patrolling private land near
Index, Washington when he heard what sounded like gun shots. He continued
toward the sound and as he drove around the corner, he came into contact with
Jodi Ziebarth, who was standing in the road with two dogs. Jorg testified that, at
the point he saw Ziebarth, he heard another series of gun shots. He also indicated
that he saw Stevens about 20 yards away, walking toward him with a handgun.
Jorg asked Stevens to put the gun on the ground and Stevens complied.
Jorg recalled that Stevens explained that they were target shooting and
showed him the pumpkins they had setup as targets. Jorg stated at trial that
Stevens had commented that he did not think he had hit any of the pumpkins. Jorg
asked Stevens and Ziebarth if they had a permit to be on the private property and
they admitted they did not. At Jorg’s request, they both provided identification.
Jorg testified that at some point during their interaction, Stevens informed him that
he was a felon and not supposed to possess guns or ammunition.
On direct examination, the prosecutor asked Jorg about running
background checks on both Stevens and Ziebarth. When the prosecutor asked
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whether the checks confirmed anything for Jorg with regard to Stevens, he replied,
“Yes, definitely so.” The prosecutor next asked Jorg what was confirmed and Jorg
replied, “He was confirmed to have felony convictions.” Defense counsel objected
and argument was taken up outside the presence of the jury. Stevens moved for
a mistrial, arguing Jorg’s use of the plural “convictions” informed the jury that
Stevens had multiple disqualifying convictions despite the pretrial stipulation to the
disclosure to the jury of a single felony.
The trial court denied the mistrial motion. The judge admitted the testimony
was prejudicial, but concluded it was not “unduly” so and that any prejudice which
existed could be cured by modifying the stipulation to include an additional
instruction: “You are to disregard evidence inconsistent with that stipulation.”
Jorg’s testimony resumed and he explained that the couple also had three
boxes of ammunition with them and that Jorg found ammunition in Stevens’ front
pocket. During the encounter, Ziebarth explained to Jorg that the gun and
ammunition belonged to her. Jorg seized the weapon and ammunition and
ordered Stevens and Ziebarth off the private property. He indicated that they
complied. At the close of Jorg’s testimony, the trial court read the stipulation,
including the additional curative instruction, to the jury. The State then rested its
case.
The defense called Ziebarth, who testified Stevens never possessed the
gun and explained she had purchased it for self-defense. Ziebarth explained they
went out to the land where Jorg encountered them because she thought it would
be a safe place to learn how to use her handgun. She recalled that there were
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other people shooting in the area, but that they left shortly after she and Stevens
arrived. Ziebarth indicated she had been in possession of the firearm and Stevens
set up targets and stayed with the dogs while Ziebarth practiced. Ziebarth
indicated Jorg arrived while Stevens was handling the targets. Ziebarth testified
Stevens held a box of empty ammunition as Jorg approached, but denied that
Stevens possessed the gun.
At the close of trial, the jury found Stevens guilty as charged. Stevens was
sentenced to three months of incarceration. The court ordered Stevens to pay a
$100 DNA collection fee. Stevens now appeals.
ANALYSIS
I. Denial of Motion for Mistrial
Stevens challenges the trial court’s denial of his motion for a mistrial. The
motion for mistrial was based on Jorg’s testimony during which he stated that
Stevens’ background check indicated that he had “felony convictions.” This
testimony indicated multiple as opposed to a single conviction. Stevens argued
that Jorg’s testimony regarding multiple convictions prejudiced him by raising the
risk “that the jury’s verdict would be improperly based on a propensity for him to
commit crimes in general.” While the trial court recognized the irregularity as
prejudicial, it ultimately ruled the irregularity did not rise to the standard of being
unduly prejudicial such that it warranted granting the motion for a mistrial and that
a curative instruction was sufficient.
We review a trial court’s denial for a motion for mistrial for an abuse of
discretion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). “A trial
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court ‘abuses its discretion when it acts on untenable grounds or its ruling is
manifestly unreasonable.’” State v. Arndt, 5 Wn. App. 2d 341, 347, 426 P.3d 804(2018) (quoting State v. Gaines, 194 Wn. App. 892, 896, 380 P.3d 540 (2016)). A
trial court has wide discretion to cure trial irregularities resulting from improper
witness statements. State v. Gamble, 168 Wn.2d 161, 177, 225 P.3d 973 (2010).
“[T]he court should grant a mistrial only when the defendant has been so
prejudiced that nothing short of a new trial can insure that the defendant will be
tried fairly.” State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). “The trial
judge is best suited to judge the prejudice of a statement.” Id. Prejudice from error
is considered against the backdrop of the trial as a whole. State v. Escalona, 49
Wn. App. 251, 254, 742 P.2d 190 (1987).
In reviewing a trial court’s ruling on a motion for a mistrial, we utilize a three-
part test to determine whether the defendant was so prejudiced as to require a
new trial. State v. Weber, 99 Wn.2d 158, 165–66, 659 P.2d 1102 (1983). We
consider 1) the seriousness of the irregularity, 2) whether the statement at issue
was cumulative of other properly admitted evidence, and 3) whether the irregularity
was able to be cured by an instruction to disregard the improper testimony, which
the jury is presumed to follow. Id.As to the first factor, the seriousness of the irregularity, Jorg’s single
reference that “dispatch” confirmed the defendant had “felony convictions,” though
prejudicial, was not serious in that Stevens had in fact been convicted of a felony
that rendered him ineligible to lawfully possess a firearm and he expressly agreed
that the jury would be advised of that fact pursuant to his stipulation. Our state has
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long recognized that evidence of prior criminal convictions is prejudicial. See State
v. Hardy, 133 Wn.2d 701, 706–12, 946 P.2d 1175 (1997); State v. Alexis, 95 Wn.2d
15, 17–20, 621 P.2d 1269 (1980); State v. Gomez, 75 Wn. App. 648, 652–57, 880
P.2d 65 (1994). Here, though, the testimony by Jorg provided no indication as to
the nature of the convictions; not the crime nor the underlying facts. Additionally,
we find it informative that Stevens had already gone through the colloquy with the
court when he entered the stipulation to a conviction, such that he was fully aware
that some aspect of his criminal history was going to be disclosed. We also must
acknowledge that the dispute here is not that the jury was informed that Stevens
had any criminal history at all, but instead just how extensive it might be. The
single, relatively sanitized reference to “felony convictions,” as opposed to the
singular noun, was not particularly serious in the context of a trial on the charge of
unlawful possession of a firearm wherein proof of a prior disqualifying felony
conviction is an essential element.
State v. Condon is instructive on this issue. 72 Wn. App. 638, 865 P.2d 521(1993). Condon dealt with two statements by a witness that referenced the
defendant having been in jail. Id. at 648. The trial court had previously ruled to
exclude any references regarding Condon’s time in jail. Id. However on review,
our court determined the statements were not serious enough to warrant a mistrial
and that the court’s instruction to disregard the statements were sufficient to
“alleviate any prejudice that may have resulted.” Id. at 650.
Here, we have a similarly ambiguous statement regarding Stevens having
“felony convictions” with no indication of what the crimes of conviction were or the
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underlying facts regarding the criminal conduct. Additionally, Stevens was on trial
for unlawfully possessing a firearm after losing that right pursuant to a felony
conviction. Testimony regarding that disqualifying conviction was expected to be
adduced at trial in some form, which distinguishes this case from a situation where
criminal history may be otherwise inadmissible. As such, this was not a serious
irregularity.
Regarding the second factor, whether the statement at issue was
cumulative of other properly admitted evidence, we find the evidence was
generally cumulative in that the jury was provided a stipulation that Stevens had
been convicted of a felony. Stevens argues this evidence was not cumulative in
that it referenced multiple convictions instead of the single conviction addressed in
the stipulation. Due to the general nature of this statement in that no specific
number of convictions were given, no particular types of crimes, and no underlying
facts were provided, we find this argument unpersuasive. The evidence indicated
Stevens had been convicted as a felon. Jorg’s testimony did not go beyond this.
Further, the defense witness provided statements which indicated that Stevens
had a criminal record which included a felony. Overall, this factor weighs toward
the cumulative nature of the challenged evidence.
The final factor, whether the irregularity was able to be cured by an
instruction to disregard the improper testimony, weighs in favor of a conclusion that
it was curable. As discussed above, the statement at issue was fairly sterile in that
it indicated Stevens had more than one conviction in the context of a trial where
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he had entered a stipulation to having a felony conviction. The trial court provided
a curative instruction with the stipulation at the close of Jorg’s testimony. It stated:
Members of the jury the parties have agreed that certain facts
are true. You are to disregard any evidence that is inconstant with
this stipulation. You must as true that the person before the Court
who has been identified in charging—in the charging document as
Defendant David Robert Stevens was convicted on October 27,
2008, of a felony offense in [State of Washington vs. David Robert
Stevens], Cause [No.] 08-1-05731 SEA. The stipulation is to be
considered evidence only of the prior conviction element. You are
not to speculate as to the nature of the prior conviction. You must not
consider the stipulation for any other purpose.
This instruction walked the very fine line between calling undue attention to Jorg’s
statement and instructing the jurors to disregard such information. It is noteworthy,
that defense did not propose a curative instruction, which could be considered a
tactical decision as doing so might have drawn more attention to the statement.
See State v. Kloepper, 179 Wn. App. 343, 355–56, 317 P.3d 1088 (2014). Further,
jurors are presumed to follow the instruction given by the court. State v. Hicks, 75
Wn.2d 73, 78, 448 P.2d 930 (1968). Here, the curative language added to the
stipulation was sufficient such to cure any potential prejudice from Jorg’s
statement.
The factors weigh against a determination that the trial court abused its
discretion in denying Stevens’ motion for a mistrial. The statement was made in
isolation, the evidence was generally cumulative in that the jury was informed that
Stevens had been convicted of one disqualifying felony, and the court provided a
sufficient curative instruction in a form that did not further emphasize the testimony.
Finding the trial court did not abuse its discretion, we affirm Stevens’ conviction.
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II. Imposition of DNA Collection Fee
Stevens’ final challenge on appeal is that the $100 DNA collection fee
imposed as a part of his judgment and sentence should be stricken. We agree.
The State first argues that this issue is waived by the defense and that we should
decline to review it. The State then contends that the fee was properly imposed
based on the information available to the court at the time of sentencing. We
disagree with the State’s reasoning on this matter and further question the efficacy
of the State’s opposition to assignments of error based on the imposition of non-
mandatory fees for those the court finds to be indigent. We will review this
challenge.
Our court recently reiterated in State v. Anderson that it is improper to
collect a DNA fee from an indigent individual. 9 Wn. App. 2d 430, 461, 447 P.3d
176 (2019); see also State v. Maling, 6 Wn. App. 2d 838, 844–45, 431 P.3d 499(2018). Further, Anderson expressly held that courts should not order the fee in
cases where the defendant has prior felonies which would require a DNA collection
under RCW 43.43.754(1)(a). 9 Wn. App. 2d at 461. Here, as in Anderson, Stevens
has at least one prior felony conviction for which a DNA sample was statutorily
required to be collected and further, the record reflects that the court found Stevens
was indigent at the time of sentencing.
At oral argument on sentencing, the State averred that Stevens did not have
a DNA sample on file and the statement of defendant’s criminal history prepared
by the State and filed with the court similarly reflected that assertion. However,
that same statement of criminal history demonstrates that Stevens had two
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separate convictions for class C felonies in 2008,2 either of which would have
required the collection of a DNA sample under state law. Based on this
information, which was available to the trial court at the time of sentencing, and the
court’s finding that Stevens was indigent, we conclude that the imposition of a new
DNA collection fee was in error. As such, we remand for the court to strike the
DNA collection fee from Stevens’ judgment and sentence.
Affirmed in part and remanded for correction of the judgment and sentence.
WE CONCUR:
2 It appears that the deputy prosecutor at the trial court mistakenly categorized a 2008
conviction for attempted possession of a controlled substance as an adult misdemeanor. That
offense is an unranked class C felony. RCW 69.50.4013(2) and 69.50.407; see also State v.
Wojtyna, 70 Wn. App. 689, 697, 855 P.2d 315 (1993) (citing State v. Mendoza, 63 Wn. App. 373,
819 P.2d 387 (1991)).
However, our Supreme Court’s recent opinion in State v. Blake, No. 96873-0, slip op.
(Wash. Feb. 25, 2021), http://www.courts.wa.gov/opinions/pdf/968730.pdf, renders Stevens’
conviction for attempted possession of a controlled substance void and would not change the
court’s original calculation of his offender score as a one.
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