State of Washington v. Teddy Roosevelt Sibley (Majority)

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FILED MAY 14, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, No. 36498-4-III Respondent, v. TEDDY ROOSEVELT SIBLEY, UNPUBLISHED OPINION Appellant. MELNICK, J. — Teddy Sibley appeals his conviction for one count of assault in the second degree, three counts of assault in the fourth degree, felony harassment, and reckless endangerment stemming from an altercation involving his domestic partner, Kara Finley. Sibley argues that the court erred in admitting an audio recording of the assault in violation of his right of confrontation. He also argues that three of his assault convictions are a violation of double jeopardy. Finally, he argues his sentence as a persistent offender violated his right to equal protection, and his rights to jury trial and due process were violated when the trial judge found the existence of two qualifying prior convictions under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570, by a preponderance of the evidence. Sibley also makes additional assertions in his statement of additional grounds (SAG). We remand to the trial court to vacate one count of assault in the fourth degree. We otherwise affirm. 36498-4-III State v. Sibley FACTS On the evening of March 22, 2018, Jacqueline Finley, Kara’s1 sister-in-law, received a call on her home phone from Kara’s cell phone, but nobody responded on the other end. Jacqueline hung up and redialed the number. She heard Kara’s and Sibley’s voices and a crying baby. Jacqueline did not know if Kara meant to call. She went to Kara’s house to see if they needed help. After Jacqueline left, her daughter heard yelling, crying, screaming, and swearing coming from the still-connected phone call. After listening to the call for about five minutes, the daughter began recording the house phone with her cell phone. Nobody asked her to take this action, but she made the recording because “This thing happened before” and she “just hoped if [she] recorded it this one time it would stop.” Report of Proceedings (RP) at 535. Upon arriving at Kara’s house, Jacqueline observed Sibley, acting belligerent, aggressive, and irate. He stood on the front porch. Kara laid on the floor just inside the front doorway. Jackie smelled “intoxicants” on Sibley. RP at 475. After a brief exchange with Sibley, Jacqueline left the house long enough to go to the neighbor’s house to call the police. When she returned, Jacqueline observed Kara’s daughter from a prior relationship loading items into a car. Sibley got in the car with his and Kara’s two sons and drove away. 1 Because Jacqueline and Kara Finley share a last name, this opinion uses their first names to avoid confusion. No offense is intended. 2 36498-4-III State v. Sibley The police arrested Sibley shortly after for an outstanding warrant and driving with a suspended license. Immediately after Sibley left, Kara called 911 and told the dispatcher that Sibley had broken her leg “right off the bat,” beaten her up, strangled her, beaten her daughter, taken her two sons and threatened to kill them if the police went after him. RP at 728. She also told the dispatcher that she had received help after dialing her phone and sliding it underneath the couch, without Sibley’s knowledge. Kara had tried calling others, including her father and her sister, but they had not answered. Kara went to the hospital for treatment of her injuries. She told the emergency room doctor that her domestic partner broke her leg when he threw her to the ground. She also said he struck her with open hands and fists, and manually strangled her. Kara had significant bruising to the left side of her face, a raspy voice, bruising on her neck, and internal inflammation consistent with manual strangulation. The State charged Sibley with one count of assault in the second degree for Kara’s broken leg, one count of assault in the second degree for strangulation, one count of assault in the fourth degree for striking Kara, and one count of assault in the fourth degree for striking Kara’s daughter. The State also charged interfering with domestic violence reporting, felony harassment, two counts of kidnapping in the first degree, reckless endangerment, and driving with a suspended license (DWLS). The State sought a pretrial ruling on the admission of the phone recording and a surveillance video of Kara’s front porch. The surveillance video showed Jacqueline 3 36498-4-III State v. Sibley arriving, talking with Sibley, and departing. It then showed Sibley walking in and out of the house several times to put items into the car, Jacqueline’s second arrival, and Sibley’s departure. Sibley objected to the admission of the phone recording, arguing that it violated the privacy act2 and contained hearsay. The court raised the issue of a possible confrontation clause violation sua sponte and discussed it with the State. Sibley did not argue a confrontation clause violation existed. The court ruled the recording admissible. At trial, the State played the recording for the jury. It included the following: Sibley: I’m not playin! I’m not f***ing playing! Kara: No! No! No! My leg’s broke! My leg! [Inaudible] Oh my god! Sibley: Sit up right now! Hurry up! . . . f***ing drink! Are you f***ing serious?! Kara: I can’t get up Ted, my leg’s broke! Kara: The bags right there and there’s diapers right there. No no no no, Ted. No no no! No Ted! Ted, no! Leave her alone! Ted, no! Leave her alone! Leave her alone! Ted! Jackie! Jackie, go! Jackie, go! Leave her alone! Ted, leave her alone! Jackie, go! Go, Jackie, go! Jackie, Jackie go! Jackie go! Jackie go! Jackie go! Jackie, GO! Jackie, go! He's gonna hurt you! .... Sibley: Get your ass up here! . . . get the f***ing bottles right now, I'm leaving! Hurry up! Kara: No, Ted. No, Ted. No. No, Ted, no. [screaming] Sibley: Hurry up! Hurry up! I'm fucking going. F*** this shit. Take this stuff out to the car right now. F*** the car seat let's go! Go, go, GO! Daughter: I’m not doing anything! Sibley: Get your ass up here! Daughter: I’m sorry! I’m sorry! Sibley: Hurry up! Hurry Up! .... Kara: No, no, no Ted! 2 Ch. 9.73 RCW. 4 36498-4-III State v. Sibley Sibley: Right f***ing now! Where’s my money? Where’s my f***ing money? Where’s my money? Where’s my money? Where’s my money? (x5) Where’s it at? Kara: It’s in my purse! It’s in the truck, it’s in the truck! She brought it out to the car! Ex. 40, 88. At trial, a detective testified that he listened to the recording and observed that “[t]here was a moment where . . . Sibley was asking for his money, and there’s no response, and then the next response you hear from [Kara] is very raspy, and you can’t really hear it . . . and as time goes by her voice comes back to normal and then she starts responding where . . . she can find his money.” RP at 750. The detective concluded that the change in voice and evidence of the injury to Kara’s neck indicated that the strangulation took place at that point. On the second day of trial, the parties discussed Kara’s potential as a witness. Both sides had subpoenaed her. Sibley’s lawyer decided not to call Kara.3 He also stated that because Kara had observed the trial, he could no longer call her. The State explained that because of her emotions, Kara could not and would not testify. Kara did not testify. In closing argument, the State played a version of the audio recording that was “synched” to match the surveillance video. Sibley objected, arguing that the combination of the two exhibits could be misleading to the jury, because nothing verified that the audio and video matched up. The court agreed with Sibley and instructed the jury to disregard Although Sibley’s lawyer said Sibley agreed with this decision, Sibley claims in his SAG that he wanted Kara to testify. 3 5 36498-4-III State v. Sibley what they had observed in the last four minutes, “and counsel may use exhibits that have been admitted but this was not admitted as an exhibit.” RP at 1106. The jury found Sibley guilty of assault in the fourth degree as a lesser included offense of assault in the second degree for the broken leg, assault in the fourth degree for striking Kara with open hands and fists, and assault in the second degree for strangulation. In addition, the jury found him guilty of one count of assault in the fourth degree for assaulting Kara’s daughter, one count of felony harassment, reckless endangerment, and DWLS 3. At sentencing, the State presented certified copies of the judgment and sentences of Sibley’s prior qualifying convictions under the POAA. The court sentenced Sibley to life in prison without the possibility of release on the assault in the second degree count. Sibley appeals. ANALYSIS I. CONFRONTATION CLAUSE Sibley argues that the court admitted Kara’s statements in the recorded call in violation of the Sixth Amendment confrontation clause. He argues that the recorded statements are testimonial and that the error in admitting the statements was not harmless.4 Sibley acknowledges that he did not explicitly object on confrontation grounds at trial, but 4 He also argues that the court erred by relying on the privacy act to find that the recording was admissible and did not violate the confrontation clause. This argument is based on a misreading of the transcript. The court did not rely on the privacy act to make a determination about admissibility under the confrontation clause. 6 36498-4-III State v. Sibley argues the parties sufficiently discussed it to allow us to review it. Because Sibley is raising the confrontation clause issue for the first time on appeal, he has waived the argument. The Sixth Amendment confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. The confrontation clause “bars ‘admission of testimonial statements of a witness who did not appear at trial unless [s]he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’” Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). We review confrontation clause challenges de novo. State v. Price, 158 Wn.2d 630, 63839, 146 P.3d 1183 (2006). In State v. Burns, 193 Wn.2d 190, 210–11, 438 P.3d 1183 (2019), the court adopted “a requirement that a defendant raise an objection [based on the confrontation clause] at trial or waive the right of confrontation.” The court explained that “[w]here a defendant does not object at trial, ‘nothing the trial court does or fails to do is a denial of the right, and if there is no denial of a right, there is no error by the trial court, manifest or otherwise, that an appellate court can review.’” Burns, 193 Wn.2d at 211 (quoting State v. Fraser, 170 Wn. App. 13, 25-26, 282 P.3d 152 (2012)). Sibley did not object to the admission of the recorded call based on the confrontation clause. He objected, claiming that it violated the privacy act and the hearsay rule. Because Sibley did not object at trial, he has waived this issue. Burns, 193 Wn.2d at 210-11. 7 36498-4-III State v. Sibley II. DOUBLE JEOPARDY Sibley argues that the second degree assault conviction and the two fourth degree assault convictions involve the same victim and a single course of conduct, and therefore violate double jeopardy. We agree in part and disagree in part. The conviction for assault in the fourth degree for striking Kara violates double jeopardy; however, the assault in the second degree for strangulation and the assault in the fourth degree, originally predicated on the broken leg act, do not. As applicable here, the constitutional guarantee against double jeopardy protects defendants from being punished multiple times for the same offense. U.S. CONST. amend. V; WASH. CONST. art 1, § 9; State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803 (2011). We review double jeopardy claims de novo. Mutch, 171 Wn.2d at 661-62. When a conviction violates the prohibition against double jeopardy, we must reverse and remand with instructions to vacate the lesser punished crime. State v. Villanueva-Gonzalez, 175 Wn. App. 1, 8, 304 P.3d 906 (2013). A defendant must affirmatively establish that he has been punished twice for the same offense. U.S. CONST. amend. V; State v. Haye, 72 Wn.2d 461, 464, 433 P.2d 884 (1967). When a defendant is convicted of two crimes under the same statute, we apply the unit of prosecution test. State v. Villanueva-Gonzalez, 180 Wn.2d at 980. The unit of prosecution test examines the specific act or course of conduct the statute defines as the punishable act. Villanueva-Gonzalez, 180 Wn.2d at 980. Although second degree assault 8 36498-4-III State v. Sibley and fourth degree assault are different statutes, the unit of prosecution test applies to convictions for different degrees of assault. Villanueva-Gonzalez, 180 Wn.2d at 981-82. Assault is a course of conduct crime. Villanueva-Gonzalez, 180 Wn.2d at 984-85. Thus, if multiple assaults constitute only one course of conduct, then double jeopardy protects against multiple convictions. Villanueva-Gonzalez, 180 Wn.2d at 985. No brightline rule exists for when multiple assaultive acts constitute one course of conduct. Villanueva-Gonzalez, 180 Wn.2d at 985. Instead, we consider the following five factors in determining whether multiple assaults constitute one course of conduct: (1) the length of time over which the acts occurred, (2) the location of the acts, (3) the defendant’s intent or motivation for the assaultive acts, (4) whether the acts were uninterrupted, and (5) whether there was an opportunity for the defendant to reconsider his acts. Villanueva-Gonzalez, 180 Wn.2d at 985. No single “factor is dispositive, and the ultimate determination should depend on the totality of the circumstances, not a mechanical balancing of the various factors.” Villanueva-Gonzalez, 180 Wn.2d at 985. We review the evidence taking into consideration these factors. Kara attempted to call several people prior to successfully calling Jacqueline. Jacqueline left her home, and her daughter began recording the still-connected phone call after listening for approximately 5 minutes. The recording lasted 12 minutes. The assault, therefore, took place over a period of approximately 30 minutes. All of the acts occurred 9 36498-4-III State v. Sibley at the same location. We do not have evidence to know if Sibley’s motivation changed or remained the same throughout the event. The assault involving Kara’s broken leg The assault involved interruptions. occurred before the recording began and before Jacqueline arrived. Kara told the 911 dispatcher that her leg broke “right off the bat.” RP at 728. The strangulation assault occurred after the assault predicated on the broken leg, between when Jacqueline first arrived and when she returned from going to the neighbor’s house to call the police. In addition, approximately 9 minutes into the recording, Sibley repeatedly asks Kara “where’s my money.” Ex. at 40. Kara did not respond. A detective testified that Kara’s voice sounds normal prior to the gap in her statements. He opined that is when the strangulation occurred because Kara’s voice sounded hoarse and scratchy after. There is a clear temporal break between the assault predicated on the broken leg and the strangulation assault. Between them, Sibley walked in and out of the house and to the car. He assaulted Kara’s older daughter and had a heated conversation with Jacqueline. Between these assaults, Sibley had ample time to reconsider his actions. Relying on the five factors enumerated above, we conclude that the convictions for assault in the fourth degree originally predicated on the broken leg and the assault in the second degree for the strangulation assault do not violate double jeopardy. 10 36498-4-III State v. Sibley We also conclude that the assault in the fourth degree conviction, which was not the lesser degree conviction, and which involved Sibley striking Kara, occurred at various times throughout the whole event. It violates violate double jeopardy and must be vacated.5 III. EQUAL PROTECTION Sibley argues that the classification of the persistent offender finding as an “aggravator” or “sentencing factor” rather than as an “element,” deprived him of the equal protection of the law. Br. of Appellant at 22. He contends that there is no rational basis for treating a prior conviction as an element to be proven to the jury in certain circumstances and an “aggravator” in others that only must be proven by a preponderance of the evidence. We disagree. We have previously rejected the exact equal protection claim Sibley raises. State v. Reyes-Brooks, 165 Wn. App. 193, 206-07, 267 P.3d 465 (2011); State v. Langstead, 155 Wn. App. 448, 456-57, 228 P.3d 799 (2010); State v. Williams, 156 Wn. App. 482, 49698, 234 P.3d 1174 (2010). We adhere to our precedent and again reject Sibley’s claim. IV. DUE PROCESS Sibley argues that his right to a jury trial and to due process have been violated because the judge found the existence of his qualifying prior convictions under the POAA by a preponderance of the evidence, rather than beyond a reasonable doubt. We disagree. 5 The State did not specify in its arguments or elect a time when the slapping and punching occurred. 11 36498-4-III State v. Sibley In State v. Witherspoon, 180 Wn.2d 875, 892-93, 329 P.3d 888 (2014), the court said, [F]or the purposes of the POAA, a judge may find the fact of a prior conviction by a preponderance of the evidence. In [State v. Manussier, 129 Wn.2d 652, 681-84, 921 P.2d 473 (1996)], we held that because other portions of the SRA utilize a preponderance standard, the appropriate standard for the POAA is by a preponderance of the evidence. We also held that the POAA does not violate state or federal due process by not requiring that the existence of prior strike offenses be decided by a jury. [Manussier, 129 Wn.2d at 682–83]. . . . This court has consistently followed this holding. We have repeatedly held that the right to jury determinations does not extend to the fact of prior convictions for sentencing purposes. See State v. McKague, 172 [Wn.2d] 802, 803 n. 1, 262 P.3d 1225 (2011) (collecting cases); see also In re Pers. Restraint of Lavery, 154 [Wn.2d] 249, 256, 111 P.3d 837 (2005) (“In applying Apprendi, we have held that the existence of a prior conviction need not be presented to a jury and proved beyond a reasonable doubt.”). At sentencing, the State presented certified copies of the judgment and sentences of Sibley’s prior qualifying convictions under the POAA. The judge found the existence of two prior qualifying convictions under the POAA by a preponderance of the evidence. Well settled precedent supports a conclusion that there is no due process or jury trial violation in Sibley’s sentence. See State v. McKague, 172 Wn.2d at 802; Manussier, 129 Wn.2d at 681-84. Sibley, like the appellant in Witherspoon, relies on Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), where the Court held that any fact that increases a mandatory minimum sentence for a crime is an element of the crime that must be submitted to the jury. However, the court in Witherspoon rejected this argument, stating “nowhere in Alleyne did the Court question Apprendi’s exception for prior convictions. It 12 36498-4-III State v. Sibley is improper for us to read this exception out of Sixth Amendment doctrine unless and until the United States Supreme Court says otherwise.” Witherspoon, 180 Wn.2d 892. Accordingly, we reject Sibley’s argument. STATEMENT OF ADDITIONAL GROUNDS I. PROSECUTORIAL MISCONDUCT Sibley asserts that the prosecutor committed misconduct during closing when she synchronized the audio recording exhibit and the surveillance footage exhibit, and this misleading evidence affected the outcome of his trial. We disagree. To establish prosecutorial misconduct, the defendant first bears the burden to establish that a prosecutor’s conduct was improper. State v. Emery, 174 Wn.2d 741, 75960, 278 P.3d 653 (2012). The defendant must then show that the improper conduct resulted in prejudice that had a substantial likelihood of affecting the verdict. Emery, 174 Wn.2d at 760-61. Counsel cannot argue facts not in evidence, but they may argue facts in evidence and reasonable inferences therefrom. State v. Schierman, 192 Wn.2d 577, 640, 438 P.3d 1063 (2018). The jury is presumed to heed instructions of the court. State v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991). The prosecutor presented two exhibits introduced separately at trial and synched them for closing argument. Sibley objected. The court sustained the objection and instructed the jury to disregard the prosecutor’s argument. The jury is presumed to have 13 36498-4-III State v. Sibley disregarded the argument. Sibley does not explain how prejudice resulted. No prosecutorial misconduct occurred. II. CONFRONTATION Sibley asserts that his right to confront a witness against him was violated because “the state failed to produce Kara Finley . . . at trial.” SAG at 1, 5-6. Although Sibley is “not required to cite to the record or authority,” he must “still ‘inform the court of the nature and occurrence of alleged errors.’” State v. Thompson, 169 Wn. App. 436, 493, 290 P.3d 996 (2012) (quoting RAP 10.10(c)). He fails to point to any particular testimonial statements made by Kara that violated his right to confrontation, but instead argues that his right had been violated by her not testifying at trial at all. We reject this assertion. III. INEFFECTIVE ASSISTANCE OF COUNSEL Sibley asserts that he received ineffective assistance of counsel because his counsel (1) failed to move for a mistrial after the prosecutor improperly synched the two exhibits discussed above and (2) failed to move for a material witness warrant from the court to require Kara to testify. We disagree. The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). 14 36498-4-III State v. Sibley We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel, the defendant must show both that defense counsel’s representation was deficient and that the deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-33. If either prong is not satisfied, the defendant’s claim fails. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). “Deficient performance is performance falling ‘below an objective standard of reasonableness based on consideration of all the circumstances.’” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (quoting State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). CrR 4.10(a) states, in pertinent part: The [material witness] warrant shall issue only on a showing . . . that (1) The witness has refused to submit to a deposition ordered by the court pursuant to rule 4.6; or (2) The witness has refused to obey a lawfully issued subpoena; or (3) It may become impracticable to secure the presence of the witness by subpoena. Sibley claims that he received ineffective assistance of counsel because his attorney failed to move for a mistrial in closing argument after the prosecutor combined two exhibits. Sibley fails to explain how not moving for a mistrial was deficient given that his attorney asked for and received a curative instruction. Also, as previously discussed, Sibley has failed to explain how the use of the improper exhibit prejudiced him. Because Sibley cannot show either deficient performance or resulting prejudice, his claim fails on this issue. 15 36498-4-III State v. Sibley Sibley also claims that his attorney was ineffective for failing to move for a material witness warrant. Both the State and Sibley had subpoenaed Kara. A material witness warrant would not have issued. To the extent Sibley asserts that the only way to procure Kara’s testimony was with a material witness warrant, he fails to allege what effect, if any, Kara’s testimony would have on the verdict if she had testified. He has therefore not shown any prejudice. IV. OTHER ARGUMENTS Sibley argues that his right to be present was violated because he was not brought to court to appear for a hearing on June 18, 2018. At this hearing, Sibley’s counsel represented him telephonically. The parties briefly discussed discovery and preliminary evidentiary matters. Sibley has mistaken the right to a public trial as a right to be present at all minor pretrial hearings. We reject this argument. Sibley argues that the court’s decision to schedule the final day of trial on November 14, 2018 rather than November 13, 2018 was an intentional tactic to prejudice the jury against him. This argument is without merit. Sibley argues that the court erred by allowing a juror to remain on the jury, after the juror informed the court after jury selection that he had mistakenly answered a question incorrectly during voir dire. Sibley does not explain what, if any, effect this had on his trial. This argument is without merit. 16 36498-4-III State v. Sibley We remand to the trial court to vacate one count of assault in the fourth degree. We otherwise affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. WE CONCUR: 6 The Honorable Richard Alan Melnick is a Court of Appeals, Division Two, judge sitting in Division Three under CAR 2l(a), 17

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