[Copyrighted Material Omitted]
Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellant.
Jason Eggertsen Ruyf, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.
[177 Wn.App. 143] ¶ 1 Brandon McWilliams appeals his second degree assault convictions and sentence. He argues that (1) the trial court erred by improperly admitting testimony as prior consistent statements under ER 801 and (2) the sentencing court erred by ordering forfeiture of property and imposing improper community custody conditions. In his statement of additional grounds for review, McWilliams also argues that (3) insufficient evidence supports his convictions, (4) his counsel was ineffective because he failed to move for dismissal of the second degree assault charge, and (5) the trial court erred in admitting the 911 tape because it violated his confrontation rights. Finding no error, we affirm the trial court.
[177 Wn.App. 144] FACTS
¶ 2 On the evening of July 25, 2010, McWilliams was at a social gathering with his girlfriend, Amber Pacheco-Noel, her mother, Kimberly Pacheco, and his friend, Alighwa Henderson. The party was at Pacheco's apartment. Around midnight, Pacheco-Noel walked about two blocks to a nearby convenience store, where McWilliams and Henderson shortly joined her.
¶ 3 Outside of the store, Marqise Labee and Lamar Reynald were selling recordings of their music. Pacheco-Noel went inside the convenience store, and Henderson began to follow her. Apparently mistaking the two men for gang members, McWilliams began arguing with Labee and Reynald outside the store. Henderson then came back outside and joined McWilliams's argument. Labee and Reynald used a racial  epithet toward Henderson and Henderson threw the first punch. McWilliams then punched Labee in the face, causing him to lose consciousness.
Pacheco-Noel ran outside to try to pull McWilliams and Henderson from the fight.
¶ 4 McWilliams produced a pistol and fired it in Reynald's direction, lacerating Reynald's neck, shattering the store window, and hitting a store clerk's leg. Another store clerk called 911, identifying the shooter as a white male.
¶ 5 Responding to the 911 call, police apprehended Henderson and Pacheco-Noel as each attempted to run toward Pacheco's apartment. When police initially apprehended Henderson, he told Deputy Huber that he did not know what was happening; he merely heard gunshots and ran. But later that same night, Henderson told Deputy Huber about his involvement in the fistfight and that McWilliams produced a gun and fired it.
[177 Wn.App. 145] ¶ 6 The State charged McWilliams with two counts of first degree assault, each charged with a firearm enhancement  and a gang motivation  aggravator; one count of second degree assault, also with a gang motivation aggravator; and one count of first degree unlawful possession of a firearm. The State also charged Henderson  with the same crimes.
¶ 7 In an interview with Detective Nist, Henderson stated only that he had heard shots; he did not say that McWilliams was the shooter. Henderson did tell Nist, however, that he and McWilliams had been in the fistfight at the store. About five or six months later, Henderson entered into an agreement to plead guilty, for which the State would recommend a nine-month sentence, plus fines and restitution.
¶ 8 At trial, Henderson testified and identified McWilliams as the shooter. McWilliams cross-examined Henderson, asking several questions about his plea agreement. Henderson admitted that his plea spared him from a possible 25 to 30-year sentence and a " second strike" under Washington's three strikes law in exchange for his testimony against McWilliams. 4 Verbatim Report of Proceedings (VRP) at 558-59. In addition, Henderson admitted on cross-examination that he lied to officers by telling them that he was not involved in anything and confirmed both that Labee or Reynald called him " the ‘ N’ word" and that they had directed this derogatory term only toward Henderson because McWilliams was white. 4 VRP at 562-64. McWilliams then asked if Henderson had pulled the gun and pointed it [177 Wn.App. 146] at Labee and Reynald because he was so angry; Henderson denied this. McWilliams asked, " You didn't shoot at anybody? ... You didn't run into the parking lot ... [and] try to hide the gun?" 4 VRP at 564. Henderson said he had not done these things.
¶ 9 After Henderson's testimony, the State asked Detective Nist whether Henderson had told her about McWilliams's involvement. McWilliams objected, saying that the testimony was hearsay; the State argued that Nist's testimony was admissible under ER 801(d)(1) either as a prior consistent statement or for purpose of identification. The trial court admitted Detective Nist's testimony as a prior consistent statement under ER 801(d)(1)(ii). Detective Nist testified that Henderson had not told her that McWilliams was the shooter but that his testimony was consistent with what he had told her regarding McWilliams's involvement in the fight outside the store.
¶ 10 The jury found McWilliams not guilty of first degree assault, but guilty of three counts of second degree assault, with two firearm enhancements. The jury also found McWilliams guilty of first degree unlawful possession of a firearm. The jury did not find that McWilliams committed the assaults with the gang motivation aggravating circumstance.
¶ 11 The sentencing court imposed a 156-month sentence, and ordered McWilliams to cooperate with the Department of Corrections
(DOC) and maintain law-abiding behavior. The court further ordered the forfeiture of unclaimed property seized in his case and community custody with crime-related prohibitions " per DOC/CCO [community corrections officer] per appendix F." Clerk's Papers (CP) at 335. Appendix F stated that based on McWilliams's second degree assault sentence, the court ordered special conditions " per DOC; CCO." CP at 340. McWilliams did not move the trial court to return the seized property.
[177 Wn.App. 147] ANALYSIS
¶ 12 McWilliams argues that the trial court improperly admitted Henderson's statement under ER 801 and that the sentencing court improperly ordered property forfeiture and community custody. We disagree.
I. ER 801
¶ 13 McWilliams argues  that the trial court improperly admitted Henderson's statement to Detective Nist under ER 801 because Henderson made the statement after he had ample time and reason to fabricate a story blaming McWilliams. Specifically, McWilliams argues that Henderson made the statement after police arrested Henderson for his involvement and after Henderson had replied to police inquiry with an admitted fabrication. The State responds that when McWilliams cross-examined Henderson, he strongly implied that Henderson fabricated his story to receive the benefits of a plea agreement; therefore, the trial court properly admitted the testimony. The State is correct.
A. Standard of Review
¶ 14 We review the trial court's decisions to admit evidence under the abuse of discretion standard. State v. Thomas,150 Wash.2d 821, 856, 83 P.3d 970 (2004), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Thus, we will reverse the trial court's decision only if no reasonable person would ...