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State v. James

Washington Court of Appeals


November 21, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
THALMERS RAY JAMES, APPELLANT.

Appeal from Superior Court of Pierce County Docket No: 95-1-01571-1 Judgment or order under review Date filed: 08/01/95 Judge signing: Hon. Frederick B. Hayes

Authored by J. Dean Morgan Concurring: Karen G. Seinfeld Elaine M. Houghton

The opinion of the court was delivered by: Morgan, J.

PART PUBLISHED OPINION

Filed:

On March 30, 1995, Thalmers Ray James and Sherene Stetze were sharing a house. According to her, she fell asleep in the bedroom, but awakened about 4:30 p.m. as James was hitting her with his hand. After striking her repeatedly, James put a shotgun near her head and, at one point, in her mouth. He said he would kill her unless she would submit to sexual intercourse, and she submitted to his demand.

Afterward, James followed her into the bathroom, where he threw her to the floor, beat her, and accused her of sleeping with his father and brother. He said that if she did not confess to his accusations, he would beat her to death. She acceded to what he was saying, but he nonetheless jumped on her and choked her into unconsciousness.

When she came to, they began to argue, and he punched her. Later, he said he would shoot her with the shotgun unless she made a sandwich for him. She did, but he nevertheless punched her again. Finally, he forced her to lie in water he had poured on the living room floor, and he tied a noose around her neck to keep her from leaving. She fell asleep on the floor about 4:30 a.m. on March 31.

About 9 a.m., Stephanie Smith arrived. She noticed bruising and cuts on Stetze's face. During the morning--the precise time is not clear from the record--James picked up the shotgun and told Smith and Stetze, in essence, that if they reported him to the police, he would kill Stetze.

Around noon, Sherry Deyette arrived and noticed that Stetze had a black eye. James was sitting on the living room couch, and he told Deyette that she should not call the police.

Police received a report of domestic violence at 12:42 p.m. They arrived at the house five or ten minutes later. They left when Stetze told them that her injuries had not been caused by James, and that the person who had caused them was no longer present. According to Smith and Stetze, neither told the police what had actually happened, because they were afraid James would carry out his threat to kill Stetze. A half hour later, the police returned to the house and arrested James. They did not find the shotgun, but they did find numerous shotgun shells and a rope tied into a noose.

James was in jail between arrest and trial. During that time, according to a cellmate, he offered the cellmate and two others $50,000 to kill Stetze before she could testify.

James was charged in an amended information with solicitation to commit first degree murder (Count I), first degree assault (Count II), unlawful imprisonment (Count III), fourth degree assault (Count IV), intimidating a witness--Stetze (count V), intimidating a witness--Smith (Count VI), and first degree rape (Count VII). A jury trial commenced May 31. Stetze and Smith testified as described above. On Count II, the jury acquitted of first degree assault but convicted on the lesser included offense of second degree assault. On Counts V and VI, the jury convicted as charged. On the remaining counts, the jury was unable to reach verdicts.

After the State decided not to seek a second trial, the trial court sentenced James to 84 months on Count II, 102 months on Count V, and 102 months on Count VI. The court ordered that each sentence run concurrently with the others, but consecutively to the sentence imposed in a different felony case the day before. James now appeals.

I.

Relying on State v. Wiley,*fn1 James argues that a person cannot be convicted of intimidating a witness if the threat relied on by the State was made before an investigation was pending. Thus, he says, his conduct in telling Smith and Stetze that if they reported him to the police, he would kill Stetze, will not support his convictions on Counts V and VI.

Counts V and VI are based on RCW 9A.72.110(1). Between 1985 and 1994, it provided:

"A person is guilty of intimidating a witness if a person directs a threat to a former witness because of the witness' testimony in any official proceeding, or if, by use of a threat directed to a current witness or a person he has reason to believe is about to be called as a witness in any official proceeding or to a person whom he has reason to believe may have information relevant to a criminal investigation, he attempts to:

(a) Influence the testimony of that person; or

(b) Induce that person to elude legal process summoning him to testify; or

(c) Induce that person to absent himself from such proceedings."*fn2

While this version of the statute was in effect, Division One decided Wiley. In that case, the defendant told a woman whom he had assaulted that if she tried to send him to jail, he would send nude pictures of her to her mother. Several weeks later, the woman contacted the police, and they began to investigate. Reversing the defendant's conviction for intimidating a witness, Division One held that the intimidating statute had originally applied only when an official proceeding was in progress; that it had later been amended to apply when an investigation was in progress, even though an official proceeding was not; and if it was to be further amended to apply when an investigation was not yet in progress, the amendment should come from the legislature. It concluded that "threats made to prevent the reporting of a crime," before any investigation was in progress, were insufficient to support conviction.*fn3

Apparently responding to Wiley, the Legislature amended the statute in 1994.*fn4 Finding

"that the period before a crime or child abuse or neglect is reported is when a victim is most vulnerable to influence, both from the defendant or from people acting on behalf of the defendant and a time when the defendant is most able to threaten, bribe, and/or persuade potential witnesses to leave the jurisdiction or withhold information from law enforcement agencies{,}"*fn5

the Legislature added subsection (d) as follows:

"A person is guilty of intimidating a witness if a person directs a threat to a former witness because of the witness' testimony in any official proceeding, or if, by use of a threat directed to a current witness or a person he or she has reason to believe is about to be called as a witness in any official proceeding or to a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child, he or she attempts to:

(a) Influence the testimony of that person; or

(b) Induce that person to elude legal process summoning him or her to testify; or

(c) Induce that person to absent himself or herself from such proceedings; or

(d) Induce that person not to report the information relevant to a criminal investigation or the abuse or neglect of a minor child, not to prosecute the crime or the abuse or neglect of a minor child, not to have the crime or the abuse or neglect of a minor child prosecuted, or not to give truthful or complete information relevant to a criminal investigation or the abuse or neglect of a minor child."*fn6

Today, then, RCW 9A.72.110 criminalizes threats made to induce a person not to report a crime and, necessarily, threats made before an investigation is commenced. Hence, the present contention fails, and James' threat to Smith and Stetze is sufficient to support his convictions on Counts V and VI.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II.

In his pro se brief, James argues that the State elicited evidence of multiple acts of assault without electing between them, and that the trial court erred by failing to give a jury unanimity instruction on Count II. James can raise the lack of a jury unanimity instruction for the first time on appeal.*fn7

When the evidence shows two or more separate and distinct acts, any one of which could form the basis of a single crime charged, the State must tell the jury which act to rely on, or the trial court must instruct the jury that it must unanimously agree that the same underlying act has been proved beyond a reasonable doubt.*fn8 This rule does not apply, however, when the evidence shows one continuing offense, as opposed to several distinct acts.*fn9

Here, the evidence shows only one act that could possibly have formed the basis for Count II. That count alleged as follows:

"That THALMERS RAY JAMES, in Pierce County, Washington, on or about the 30/31st day of March, 1995, did unlawfully and feloniously with intent to inflict great bodily harm, assault Sherene Stetze with a firearm or deadly weapon or by any force or means likely to produce great bodily harm and death . . . ."*fn10

Jury Instruction 12 told the jury what it had to find to convict on Count II. It stated:

"To convict the defendant of the crime of assault in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 30/31st day of March, 1995, the defendant assaulted Sherene Stetze;

(2) That the assault was committed with a firearm; (3) That the defendant acted with intent to inflict great bodily harm; and

(4) That the acts occurred in the State of Washington."*fn11

Jury Instruction 26 told the jury that second degree assault was a lesser included offense of first degree assault. It stated:

"If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, the defendant may be found guilty of any lesser crime, the commission of which is necessarily included in the crime charged, if the evidence is sufficient to establish the defendant's guilt of such lesser crime beyond a reasonable doubt.

The crime of ASSAULT IN THE FIRST DEGREE necessarily includes the lesser crime of ASSAULT IN THE SECOND DEGREE.

When a crime has been proven against a person and there exists a reasonable doubt as to which of two or more degrees that person is guilty, he or she shall be convicted only of the lowest degree crime."*fn12

Jury Instruction 22 told the jury what it had to find to convict on the lesser included offense of second degree assault. It stated:

"To convict the defendant of the crime of assault in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 30th/31st day of March, 1995, the defendant knowingly:

(a) assaulted Sherene Stetze with a deadly weapon; or

(b) intentionally assaulted Sherene Stetze, and thereby recklessly inflicted substantial bodily harm;

(2) That the acts occurred in the State of Washington."*fn13

Given these instructions, the jury necessarily had to focus in its deliberations on Count II on conduct that at least allegedly involved both a firearm and an intent to inflict great bodily harm. The only act that satisfies these requirements was the assault at 4:30 p.m. on March 30. It began, in our view, with James hitting Stetze, and continued at least until he had choked her into unconsciousness. In the interim, as seen above, it included him pointing the shotgun at her and even, at one point, putting the shotgun in her mouth. The various other acts could have been fourth degree assaults, as reflected by the charge in Count IV, or intimidating a witness, as reflected by the charges in Counts V and VI, but the jury could not have thought that they were the basis for Count II. We conclude that the omission of a unanimity instruction was not error.

III.

In his pro se brief, James argues that Count II alleged alternative means, and that one or more of those means was not supported by substantial evidence. Having examined the entire record, we conclude that if Count II charged alternative means, each such means was supported by substantial evidence.

IV.

James contends that the trial court erred in imposing sentences at the high end of the standard range. "A sentence within the standard range," however, "shall not be appealed."*fn14

James also contends that the trial court erred in ordering that his sentences be consecutive to a felony sentence imposed by another court the previous day. RCW 9.94A.400(3) provides:

"Subject to subsections (1) and (2) of this section, whenever a person is sentenced for a felony that was committed while the person was not under sentence of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively."

This section gave the trial court discretion to impose a consecutive sentence, and it did not err by doing so.*fn15

V.

James argues that the trial court should not have allowed Smith to testify, because the State did not provide defense counsel with Smith's recorded statement until June 2, two days after trial had begun. According to James, this violated the omnibus order, which required counsel to exchange written or recorded witness statements by May 24. The omnibus order also required the State to provide follow-up reports as they were received.

Before trial, the State listed Smith as a witness. A police officer was asked to subpoena Smith on May 18, but could not serve her until May 31 or June 1. A defense investigator had similar difficulty. The State first recorded a statement from Smith on June 1, and defense counsel received a transcript by the morning of June 2. The State did not violate the omnibus order, or its continuing duty to provide information as information was received.

VI.

James contends that the trial court erred by refusing to allow defense counsel to recall Stetze as a witness for the defense. After the State's redirect of Stetze, defense counsel requested that Stetze remain subject to recall as a witness. The trial court responded: "You will have to work that out. She is excused as far as I am concerned."*fn16 After the State rested its case, defense counsel said he planned to call only Detective Holmes as a witness. No other mention is made about Stetze's availability as a witness, and the record does not show what she would have said if recalled. Obviously, the record does not show error.

VII

James contends that his convictions should be reversed because several witnesses testified falsely. But the jury, not this court, determines the credibility of, and weight to be given to, witness' testimony.*fn17

Affirmed.

Morgan, J.

We concur:

Houghton, C.J.

Seinfeld, J.


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