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State v. Berg

Court of Appeals of Washington, Division 2

October 8, 2013

The State of Washington, Respondent,
v.
Daylan Erin Berg et al., Appellants. The State of Washington, Respondent,
v.
Jeffrey S. Reed, Appellant

Page 867

PUBLISHED IN PART

Appeal from Clark Superior Court. Docket No: 09-1-00761-6. Date filed: 09/03/2010. Judge signing: Honorable Robert a Lewis.

Casey Grannis (of Nielsen Broman & Koch PLLC ) and Catherine E. Glinski, for appellants.

Anthony F. Golik, Prosecuting Attorney, and Abigail E. Bartlett and Rachael Rogers Probstfeld, Deputies, for respondent.

AUTHOR: Lisa Worswick, C.J. We concur: Jill M Johanson, J., Brian Maynard Tollefson, J.P.T.

OPINION

Page 868

Worswick, C.J.

[177 Wn.App. 122] ¶ 1 -- After a jury trial, Daylan Berg and Jeffrey Reed were each convicted of five counts: attempted first degree murder, first degree burglary, first degree kidnapping, first degree robbery, and intimidating a witness. [1] In special verdicts, the jury found that Berg and Reed committed each of the five counts while armed with a firearm and that the attempted murder was of a police officer performing his official duties. Berg and Reed appeal their convictions, arguing that (1) the exclusion of an observer from the courtroom violated their public trial rights and was erroneous as a matter of courtroom operations and (2) insufficient evidence supports their kidnapping convictions. We hold that because no courtroom closure occurred, the trial court did not violate Berg's and Reed's public trial rights and further hold that any courtroom operations error was harmless. In addition, because we follow our decision in State v. Korum, 120 Wn.App. 686, 86 P.3d 166 (2004), aff'd in part and rev'd in part on other grounds, 157 Wn.2d 614, 141 P.3d 13 (2006), we vacate the kidnapping convictions for insufficient evidence.

¶ 2 In the unpublished portion of this opinion, we address Berg's and Reed's other contentions: (1) Berg and Reed argue that the State committed prosecutorial misconduct by making improper remarks during closing argument and their counsel were ineffective for failing to object to these remarks, (2) Berg argues that insufficient evidence supports [177 Wn.App. 123] his conviction for witness intimidation, (3) Berg and Reed argue that the special verdict instructions violated their right to a unanimous verdict, (4) Reed argues that a witness's opinion on Reed's state of mind violated his right to a jury trial, and (5) Reed argues that cumulative error warrants reversal of his convictions. In a pro se statement of additional grounds, Reed further argues (1) evidentiary error, (2) additional improper remarks in closing argument, (3) instructional error, (4) additional ineffective assistance of counsel, and (5) erroneous denial of motions for mistrial. Aside from the insufficiency of the kidnapping evidence, we reject Berg's and Reed's arguments. We affirm Berg's and Reed's convictions, except that we remand to the trial court to vacate Berg's and Reed's first degree kidnapping convictions and to resentence them accordingly.

FACTS

A. Substantive Facts

¶ 3 Albert Watts was an authorized medical marijuana user who lived in a rented house in Vancouver, Washington. Berg and Reed learned that Watts grew marijuana in a workshop located in a walled-off portion of his garage.

¶ 4 One evening, Watts was alone in the workshop tending to the marijuana plants when Berg and Reed kicked in the door.

Page 869

Holding a handgun, Reed ordered Watts to the ground. Berg took the gun and pinned Watts to the floor, threatening to shoot him if he moved. Reed then went inside the house and took Watts's cell phone and wallet. Reed then loaded the marijuana plants into a white car.

¶ 5 When Reed finished loading the car, he returned to the workshop. Berg stopped pinning Watts to the floor, and Reed asked whether Watts would call the police. Watts answered that he would tell the police " nothing." 24 ...


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