STATE OF WASHINGTON v. KEEHN

• Decision Date: 16 April 1999
• Docket Number: No. 21164-5-II,No. 21482-2-II,No. 21141-6-II,21141-6-II,21482-2-II,21164-5-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, RESPONDENT CROSS-APPELLANT, v. BRIAN GLENN KEEHN, APPELLANT CROSS-RESPONDENT. STATE OF WASHINGTON, APPELLAN/ CROSS-RESPONDENT,

[1]
[2]	STATE OF WASHINGTON, RESPONDENT CROSS-APPELLANT,; v.; BRIAN GLENN KEEHN, APPELLANT CROSS-RESPONDENT. STATE OF WASHINGTON, APPELLAN/ CROSS-RESPONDENT,; v.; GARY D. WARDEN, JR., RESPONDENT CROSS-APPELLANT. IN RE THE SENTENCE OF, BRIAN GLENN KEEHN
[3]	No. 21141-6-II No. 21164-5-II No. 21482-2-II
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of Clallam County Docket No: 96-1-00052-2 Judgement or order under review Date filed: 09/13/1996 Judge signing: Hon. George L. Wood Jr
[6]	April 16, 1999
[7]	Counsel: Counsel for Appellant(s) Sherryl A. Jones Davies & Jones PO Box 1869 Pt Townsend, WA 98368-1869 Albert L. Brockmeier Attorney At Law PO Box 307 Vallejo, CA 94590 Carolyn Brockmeier Attorney At Law 93 Cypress Ave Vallejo, CA 94590 Counsel for Petitioner(s) John S. Blonien Assistant Attorney General Asst. Atty Gen-Corr.DIV P.o. Box 40116 Olympia, WA 98504-0116 Counsel for Respondent(s) Carmon D. Clem 533 Vashon Apt 1 Port Angeles, WA 98362
[8]	The opinion of the court was delivered by: Houghton, J.
[9]	Judges: Authored by Elaine M. Houghton Concurring: J. Dean Morgan J. Robin Hunt
[10]	[Editor's note: originally released as an unpublished opinion]
[11]	Co-defendant Brian Keehn appeals his multiple criminal convictions on grounds of insufficient evidence, prosecutorial misconduct, ineffective assistance of counsel and trial court error in admitting evidence and instructing the jury. Co-defendant Gary Warden appeals on grounds of insufficient evidence and trial court error in admitting evidence and in sentencing. We affirm.1
[12]	FACTS
[13]	On February 11, 1996, a group of approximately 11 youths congregated at Brian Keehn's house in Port Angeles, including Keehn and Gary Warden. While there, the conversation turned to John Moniz and the altercation he had had the previous week with their friend Jason Oxen. Fueled by their belief that Moniz had been making racial statements, the group decided to go to Moniz and Kevin Davis's home in Sequim to avenge Oxen's beating by Moniz.
[14]	Once there, Keehn and several other members of the group went to the door and asked to speak with Moniz. Adam Hampton, Moniz's friend, answered the door and told the group that Moniz was not at home. The group left, but returned shortly, having decided that Hampton had lied about Moniz's whereabouts.
[15]	One of the members of the group kicked in the front door and entered the house, followed by others, and began assaulting Moniz. The assault lasted several minutes, during which Moniz was beaten severely and hit with a coffee table, a television set, and a club or baseball bat. Moniz later identified three of the assailants as Rocky Peoples, Jeremiah Hall, and Brian Keehn.
[16]	After the incident, the group eventually returned to Keehn's house in Port Angeles. Moniz called his mother and was taken to a hospital for treatment. He returned home without reporting the incident to the police, believing that the incident was not a "big deal." But the conflict continued as telephone calls were exchanged between Moniz and Kevin Davis, Moniz's roommate, and members of the group. During these telephone calls, racist remarks and threats of physical violence were traded.
[17]	At approximately 1:30 or 2:00 a.m. on February 12, 1996, nine of the members of the group decided to return to Moniz and Davis's house in Sequim. Keehn did not return to Sequim, but he drove into Port Angeles, where he was later pulled over and arrested.
[18]	Before leaving Port Angeles, Warden and Adam Bodey, one of the members of the group, drove to a friend's house to pick up a rifle. Upon returning to Sequim, several members of the group entered the house; three carried baseball bats, and Warden carried the rifle. Most of the assailants wore stocking hats or ski masks. Both Moniz and Davis were attacked repeatedly with baseball bats and were threatened with a gun.
[19]	On February 16, 1996, Keehn was charged by information with conspiracy to commit assault in the second degree, RCW 9A.28.040(1); burglary in the first degree while armed with a deadly weapon, RCW 9A.52.020(1); and assault in the second degree while armed with a deadly weapon, RCW 9A.36.021, as a principal or accomplice for the February 11 crimes only.
[20]	On February 21, 1996, Warden was charged by information with the identical crimes as Keehn. In addition, Warden was charged with burglary in the first degree while armed with a deadly weapon and/or firearm, RCW 9A.52.020(1), RCW 9A.08.020, RCW 9.94A.125, and RCW 9.41.010; and two counts of assault in the second degree while armed with a deadly weapon and/or firearm, RCW 9A.36.021(1)(a) and/or RCW 9A.08.020, RCW 9.94A.125, and RCW 9.41.010, as a principal or an accomplice, for the February 11th and 12th crimes.
[21]	On May 10, 1996, these matters were joined for trial. Other members of the group who were charged with various crimes pled guilty and testified at trial. On July 5, 1996, both Keehn and Warden were convicted on all counts, including special verdicts that Keehn and Warden were armed with a deadly weapon on Counts II and III, and Warden was armed with a firearm on counts four through six. Keehn and Warden appeal.2, 3
[22]	ANALYSIS
[23]	I. Keehn's Appeal
[24]	A. Perjury
[25]	Keehn first contends that victim/witness Moniz committed perjury when he stated that Keehn re-entered his house on the morning of February 12, 1996. Keehn asserts that Moniz's statements amounted to perjury because witnesses, including a police officer, testified that Keehn did not return to Sequim or participate in the second assault, but was in police custody at the time of the assault.
[26]	The requirements of proof in a perjury case are more stringent than those in any other area of the law except treason. State v. Olson, 92 Wn.2d 134, 136, 594 P.2d 1337 (1979). If an answer is literally, technically, or legally true, it cannot form the basis of a perjury charge. Olson, 92 Wn.2d at 136. In order to sustain a perjury charge, the questions and answers that support the allegation must demonstrate both that the witness was aware of the meaning behind the examiner's questions and that the witness knew the answers were not the truth. State v. Stump, 73 Wn. App. 625, 628, 870 P.2d 333 (1994).
[27]	The relevant testimony between the State and Moniz was as follows:
[28]	Q: How were you {after the second assault}?
[29]	A: Very upset and emotionally distraught and I believe I was going in{to} shock.
[30]	Q: Did you recognize any of -- you described four people. Did you recognize any of those persons?
[31]	A: Yes. As I described them also at the first incident, Rocky Peoples was there. Sundray Korsmo. I believe the defendant Brian Keehn also to be there, and I did not identify the gun man.
[32]	Then, on cross examination:
[33]	Q: Your testimony earlier was that there were four people that came in?
[34]	A: Yes, sir.
[35]	Q: Can you give me their names?
[36]	A: Like I said earlier in my earlier testimony that I believe one to be Rocky Peoples, Brian Keehn, Sundray Korsmo, and I could not identify the gun man.
[37]	Q: But your testimony is that Brian Keehn was there on the second occasion?
[38]	A: That's what I said.
[39]	"The burden is on the questioner to pin the witness down to the specific object of his inquiry. Precise questioning . . . is imperative as a predicate for perjury." Olson, 92 Wn.2d at 139. Here, the alleged perjury appears to be a mistaken belief by Moniz, which was subject to cross examination by the defense. As the State notes, Moniz merely stated that he "believe{d}" Keehn was involved in the second entry, not that he was certain. Such a mistake was reasonable given that Moniz had been severely beaten; and he was on medication at the time of the second entry. Perjury is not established by merely providing testimony of witnesses that contradict the alleged perjured statements. See Stump, 73 Wn. App. at 628. Nevertheless, the State recognized that Keehn was elsewhere at the time of the second entry and did not charge Keehn with crimes involving the second entry, nor did the jury find him guilty of crimes involving the second entry. As Keehn has provided no evidence that Moniz was aware that his answers were not the truth, Keehn is not entitled to a vacation of Judgement on this basis.
[40]	B. Sufficiency of the Evidence
[41]	Keehn next challenges the sufficiency of the evidence to convict him of any of the crimes charged based upon the State's alleged failure to demonstrate that he possessed the requisite intent.
[42]	When reviewing the record below on a sufficiency of the evidence claim, the proper test is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990) (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). All reasonable inferences are drawn in the State's favor. State v. Sanchez, 60 Wn. App. 687, 693, 806 P.2d 782 (1991). Circumstantial evidence is considered equally reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
[43]	1. Conspiracy to Commit Assault in the Second Degree
[44]	Keehn contends that there was insufficient evidence to convict him of conspiracy to assault Moniz because the State failed to prove the element of intent. Keehn concedes that substantial evidence established that Keehn was on Moniz's property at the time of the first assault, but he argues that Keehn lacked the requisite intent to commit conspiracy to assault. He argues that he never threatened anyone, never carried a weapon, and attempted to talk the others out of returning to Moniz's home the second time. Keehn asserts that there was never any Discussion concerning beating up Moniz, and that he believed the group

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