State Of Wash. v. Cross

• Decision Date: 01 July 2010
• Docket Number: No. 38498-1-II.,38498-1-II.
• Citation: 156 Wash.App. 568,234 P.3d 288
• Parties: STATE of Washington, Respondent,v.Kevin Lee CROSS, Appellant.
• Court: Washington Court of Appeals

156 Wash.App. 568

234 P.3d 288

STATE of Washington, Respondent,v.Kevin Lee CROSS, Appellant.

No. 38498-1-II.

Court of Appeals of Washington Division 2.

June 29, 2010.

As Amended July 1, 2010.

Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA, for Appellant.

Stephen D. Trinen, Pierce County Prosecutor's Ofc., Tacoma, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 A jury found Kevin Cross guilty of first degree unlawful possession of a firearm, gross misdemeanor harassment, resisting arrest, and obstructing a law enforcement officer. On appeal, Cross challenges the search of a vehicle incident to his arrest in light of Gant,¹ the sufficiency of evidence supporting his gross misdemeanor harassment conviction, and the inclusion of his 1991 conviction in the calculation of his offender score. In a statement of additional grounds for review (SAG), ² Cross also challenges the sufficiency of evidence supporting his unlawful possession of a firearm conviction and the trial court's decision finding Reiko Mullens competent to testify despite her medical history of multiple brain surgeries.

¶ 2 Cross failed to preserve for review any error related to the vehicle search incident to arrest. In addition, the trial court did not abuse its discretion when it found Reiko Mullens competent to testify; sufficient evidence supports Cross's convictions; and the trial court properly included Cross's 1991 conviction, which did not wash out, when calculating Cross's offender score. We affirm.

FACTS

Background

¶ 3 On April 23, 2008, Tacoma Police Officer Samuel Lopez-Sanchez conducted a traffic stop of a vehicle. The driver, Joshua Mullens, failed to produce a driver's license and vehicle registration and Lopez-Sanchez ordered him out of the car to place him under arrest for reckless driving and driving without a license. Once out of the car, Mullens began resisting arrest. When Lopez-Sanchez tried to handcuff him, Mullens pulled away from him and dove into the vehicle, reaching toward the vehicle's center console. Lopez-Sanchez managed to pull Mullens from the car before he could reach the center console.

¶ 4 Officer Lopez-Sanchez also observed a passenger, later identified as Cross,³ in the front passenger seat of the vehicle. The passenger appeared “extremely nervous,” had visibly shaky hands, and was sweating profusely. 4 Report of Proceedings (RP) at 236. When Lopez-Sanchez and Mullens began struggling, Cross made furtive gestures toward his waist. Fearful that Cross was reaching for a weapon, Lopez-Sanchez ordered Cross to put his hands in the air. Cross refused to comply. While continuing to fear for his safety, Lopez-Sanchez pulled Mullens to the back of Mullens's vehicle and nearer the police car to put distance between himself and Cross. Lopez-Sanchez lost sight of Cross during his evasive maneuver, but he heard a “slapping sound” that he described as “like an object striking another object” come from inside the vehicle. 4 RP at 240. As soon as he could, Lopez-Sanchez called for backup.

¶ 5 Ultimately, Officer Lopez-Sanchez was able to handcuff Mullens and place him in the back of his patrol car. Meanwhile, Lopez-Sanchez saw Cross attempting to flee the scene on foot. Cross ignored orders to “stop.” Lopez-Sanchez chased Cross through a residential neighborhood. The chase ended when Cross jumped over a six- to eight-foot tall wooden fence and found himself trapped in a yard. When Lopez-Sanchez caught up to him, Cross put up his fists in an offensive fighting stance. After missing Cross with his stun gun, Lopez-Sanchez leg swept Cross to the ground, applied the stun gun directly to Cross's back, and handcuffed him.

¶ 6 Officer Jared Williams arrived on the scene and spotted Officer Lopez-Sanchez walking back to his patrol car with Cross in handcuffs. Cross was “very hostile and agitated,” and Williams had to hold him against the trunk of his patrol car so that Lopez-Sanchez could frisk Cross for weapons. 5 RP at 328. No weapons were found on Cross, who was then placed in Williams's patrol car. Cross yelled obscenities as Williams read him his Miranda ⁴ rights. Cross refused to identify himself. Another officer who arrived on the scene recognized Cross, retrieved a police report and booking photo from a previous incident, and used these to identify Cross.

¶ 7 Next, while Mullens and Cross were secured in separate patrol cars, Officers Lopez-Sanchez and Williams searched the vehicle which belonged to Mullens's sister, Reiko Mullens. The officers found two guns. Lopez-Sanchez found a loaded 9 mm semiautomatic handgun and holster in the unlocked center console compartment. Williams found a loaded .357 magnum revolver in the glove compartment. Lopez-Sanchez believed that the slapping sound he had heard while he struggled to subdue Mullens was the glove compartment slamming shut.

¶ 8 When Officer Williams asked Cross about the guns, Cross replied that “he did not know that the guns were in the vehicle and that he was just getting a ride home.” 1 RP at 60. He also stated that “he was a homeless junkie.” 1 RP at 60. When Officer Lopez-Sanchez asked Mullens about the guns, he responded that they belonged to his sister. Mullens also said that he was on his way to “take care of a problem,” referring to two individuals allegedly involved in a recent domestic violence dispute with his sister, but he denied any intent to use the guns to address this “problem.” 4 RP at 273.

¶ 9 While Officer Williams waited for Mullens's car to be impounded, Cross, who was handcuffed and seated in the back of the patrol car, made several inappropriate racial and sexual comments about Williams and stated that “he would kick [Williams's] ass if he wasn't in handcuffs.” ⁵ 5 RP at 331.

Procedure

¶ 10 On April 24, 2008, the Pierce County Prosecuting Attorney's office charged Cross with two counts of first degree unlawful possession of a firearm, a class B felony under RCW 9.41.040(1)(b), and one count of resisting arrest, a misdemeanor under RCW 9A.76.040. On June 19, 2008, the State filed an amended information adding one count of harassment (bodily injury), a gross misdemeanor under RCW 9A.46.020(2), and one count of obstructing a law enforcement officer, a gross misdemeanor under RCW 9A.76.020(3).

¶ 11 A joint jury trial for Cross and Mullens commenced on September 22, 2008. The trial court granted Cross's motion to sanitize the racial and sexual remarks that he had made to Officer Williams. Although Cross initially indicated an intent to move to suppress any evidence seized during the vehicle's search in his omnibus application, he never filed a motion to suppress nor did he request a CrR 3.6 hearing. During trial, Cross's counsel explicitly mentioned abandoning a CrR 3.6 motion. Also, Cross did not object to the admission of the firearms found in the car or to the State's questioning of witnesses about the guns; he only objected to the narrative nature of a response by Officer Lopez-Sanchez and to the relevance of questions regarding the actions required to fire the loaded .357 magnum revolver.

¶ 12 Cross stipulated to a prior felony conviction that was a serious offense. On October 3, 2008, the trial court dismissed, with prejudice, Cross's unlawful possession of a firearm count related to the 9 mm handgun found in the center console of the car. That same day, the jury entered verdicts finding Cross guilty on all other counts.

¶ 13 At Cross's October 24, 2008 sentencing, the State provided certified copies of Cross's prior felony judgments and sentences as well as an uncertified computer-generated District and Municipal Court Information System (DISCIS) printout listing Cross's prior nonfelony criminal convictions. Cross objected to the use of his 1991 class C felony conviction for third degree assault in the calculation of his offender score, arguing that the State had failed to meet its burden to prove that he had not spent five years in the community crime free. Specifically, he argued that because the State presented only a DISCIS printout listing several misdemeanor convictions during the relevant five-year wash-out period, that it had failed to present reliable evidence to satisfy its burden of proof and his 1991 class C felony conviction could not be included in his offender score. The trial court admitted the DISCIS printout ruled that the 1991 assault conviction did not wash out, and calculated Cross's offender score at 6. The trial court imposed a 75-month standard range sentence for the first degree firearm conviction and a concurrent 365-day sentence for his other misdemeanor and gross misdemeanor convictions. Cross filed this timely appeal.

ANALYSIS

Vehicle Search

¶ 14 For the first time on appeal, Cross challenges the search of the vehicle incident to arrest, citing Gant.⁶ The State argues that Cross failed to preserve this issue for appeal. State v. Millan, 151 Wash.App. 492, 212 P.3d 603 (2009) review granted, 168 Wash.2d 1005, 226 P.3d 781 (2010). We agree with the State that Cross failed to preserve this issue for our review.

¶ 15 In Millan, we held that Millan failed to preserve an alleged error in the admission of a gun obtained during a search of his vehicle incident to his arrest because he did not file a motion to suppress at trial.⁷ 151 Wash.App. at 502, 212 P.3d 603; see also State v. Baxter, 68 Wash.2d 416, 423, 413 P.2d 638 (1966) (“The exclusion of improperly obtained evidence is a privilege and can be waived.”); State v. Mierz, 72 Wash.App. 783, 789, 866 P.2d 65, 875 P.2d 1228 (1994) (a trial court does not err when considering evidence that a defendant did not move to suppress) aff'd, 127 Wash.2d 460, 901 P.2d 286 (1995); State v. Donohoe, 39 Wash.App. 778, 782 n. 5, 695 P.2d 150 (“Because a defendant can receive complete constitutional protection against the use of illegally obtained evidence through superior court suppression hearing procedures, and because the rights afforded by these constitutional...