State v. Aho

• Decision Date: 25 October 2016
• Docket Number: 43932-8-II
• Parties: STATE OF WASHINGTON, Respondent, v. MATTHEW DAVID AHO, Appellant,
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. MATTHEW DAVID AHO, Appellant,

No. 43932-8-II

Court of Appeals of Washington, Division 2

October 25, 2016

UNPUBLISHED OPINION

SUTTON, J.

Matthew D. Aho appeals his convictions for theft of a firearm and two counts of unlawful possession of a firearm (counts V and VIII).^[1] He also appeals his consecutive sentences for theft of a firearm, and the two counts of unlawful possession of a firearm. We hold that (1) Aho's right to a public trial and right to be present were not violated, (2) the trial court did not abuse its discretion in allowing the State to amend the charge for theft of a firearm, (3) he received proper notice of the amended theft of a firearm charge, (4) the State properly elected specific acts to assure unanimous verdicts for theft of a firearm charge and both charges of unlawful possession of a firearm (counts V and VIII), (5) his time for trial under CrR 3.3 was not violated, and (6) the trial court did not err in imposing consecutive sentences. As to Aho's Statement of Additional Grounds (SAG) claims, we hold that (7) he received effective assistance of counsel, (8) the prosecutor did not engage in prosecutorial misconduct, and (9) there was sufficient evidence to support Aho's conviction of unlawful possession of a firearm (count VIII).

We affirm Aho's convictions and sentence for theft of a firearm and both counts of unlawful possession of a firearm (counts V and VIII).

FACTS

I. Background

On November 7, 2010, Jillian Newkirk and her then boyfriend Matt Aho, together with Nathan Rolfe and Brandi Snow, lured Bruce Gambill out of his house with the intention of entering Gambill's home and stealing his property. Snow testified that she later saw Aho handling an "older western type" small gun that she had not seen before the group went to Gambill's. Verbatim Report of Proceedings (VRP) (Aug. 22, 2012) at 270.

In December, Gambill reported to police that the missing weapon was a .357 Ruger revolver. Later, Gambill called Deputy Tony Filing to tell him that he made a mistake, and that it was his 10 mm handgun that was missing.

On January 28, 2011, deputies searched the Newkirk residence including the fifth-wheel trailer where Newkirk and Aho lived together, and Newkirk's vehicle. During the search deputies found 22-caliber magazines, 9 mm magazines, 9 mm ammunition in a box addressed to Aho, and "several 9 [mm] rounds" in a military backpack. VRP (Aug. 23, 2012) at 328. Deputies also found a loaded 9 mm gun on the passenger's floorboard of Newkirk's vehicle. Newkirk testified that she purchased the gun for Aho as a gift, but did not purchase ammunition and had not yet given the gun to Aho.

II. Procedure and Motions to Continue

In January 2011, the State charged Aho with theft of a firearm and two counts of second degree unlawful possession of a firearm (counts V and VIII).^[2] The charging information for theft of a firearm stated that the firearm was a .357 revolver handgun. Aho entered pleas of not guilty and, after the trial court granted several continuances, the case proceeded to a jury trial.

Between March 17, 2011 and February 29, 2012, the trial court granted eight motions to continue based upon the parties' written agreement.^[3] Aho was represented at each hearing and did not object to these continuances. On February 29, Aho failed to appear for trial, and on March 5, a bench warrant was issued for his arrest. On May 10, Aho filed an affidavit of prejudice and the trial court granted a motion to continue until May 14, upon the parties' written agreement. Aho did not object to the continuance.

Between May 14 and August 2, the trial was continued due to a lack of available courtrooms, witness issues, and other scheduling issues; Aho did not object. On August 2, the case was reassigned to a new judge and trial began on August 6.

III. Peremptory and For Cause Challenges

On August 20, 2012, the parties conducted voir dire in open court. The following colloquy took place:

[THE STATE]: Your Honor, I do have one challenge for cause.

THE COURT: All right. Why don't we do this. I am going to have you come back to chambers. I don't whisper well. So [counsel for both parties], if you would come back briefly and then we'll put it on the record later.

(WHEREUPON, sidebar was had.)^[4]

THE COURT: All right. Juror No. 23, we thank you and you are excused from this panel. Thank you and report downstairs. Thank you.

(WHEREUPON, juror leaves the courtroom.)

VRP (Aug. 20 & 21, 2012) at 102-03.

The parties then exercised their peremptory challenges at sidebar by writing them on a pleading titled "Peremptory Challenges, " which was filed with the trial court the same day. Clerk's Papers (CP) at 136.

THE COURT: Counsel, if you would please approach.

[DEFENSE COUNSEL]: The Court's numbering is off but we are in agreement.

THE COURT: Okay. Let me see this. That's my copy and you're in agreement?

[THE STATE]: Yes.

VRP (Aug. 20 & 21, 2012) at 103. Aho did not challenge this procedure.

IV. Trial Testimony

At trial, Gambill testified that he was confused when he mistakenly reported to the police that the missing weapon was a .357 revolver when it was, in fact, a 10 mm handgun. Newkirk's father testified that while deputies searched the property, he gave them a 1917 Enfield rifle that Aho had given to him about a month earlier.

A forensic investigator with the Pierce County Sherriff s office, testified that the 9 mm semi-automatic appeared to be a real gun upon visual inspection, fired as designed, and appeared to have all necessary components to fire a projectile such as a bullet. He also testified that the 1917 Enfield rifle was a "real weapon" but that it was not operable and would not be able to fire a projectile. VRP (Aug. 27, 2012) at 475.

V. Amendment of Charging Document and Motions to Dismiss

After the State rested, it immediately moved to re-open its case to allow the trial court to read into the record a stipulation that Aho had been convicted of previous felonies on November 7, 2010 and on January 28, 2011. Aho did not object. VRP (Aug. 27, 2012) at 480.

Aho moved to dismiss the theft of a firearm charge for insufficient evidence. VRP (Aug. 27, 2012) at 482-83. Aho argued that the original charging documents charged theft of a .357-caliber revolver but that the evidence at trial supports that "[n]o 357 was even taken" and that his "defense in cross-examination was developed and pursued based on" Aho being charged as an individual and not an accomplice. VRP (Aug. 27, 2012) at 483, 485. The trial court denied Aho's motion to dismiss.

The State then moved to amend the theft of a firearm charge to allege a 10 mm handgun, instead of a .357-caliber revolver, noting that there was no prejudice because the specific firearm would not have changed how that charge was defended at trial. Aho did not specifically object to this amendment but generally argued that an amendment to the charge would prejudice his defense. The trial court granted the State's motion to amend.

Aho then moved to dismiss the charge for second degree unlawful possession of a firearm (count VIII) for insufficient evidence. The trial court reserved ruling on Aho's motion to dismiss and he rested his case.

VI. Jury Instructions

Aho did not object to jury instruction 19, which instructed that "a 'firearm' is a weapon or device from which a projectile may be fired by an explosive such as gunpowder." CP at 31. Aho did, however, object to jury instruction 25 which stated,

A firearm need not be operable during the commission of a crime to constitute a "firearm" as defined in previous instructions. Instead, the relevant question is whether the firearm is a gun in fact rather than a toy gun or gun like object which is incapable of being fired.

CP at 37. Finally, Aho did not object to the lack of a unanimity instruction for theft of a firearm or the two counts of unlawful possession of a firearm (counts V and VIII), nor did he propose one.

VII. Closing Arguments

During closing argument, the State addressed Gambill's mistake when initially reporting the missing weapon,

You might hear some argument, and I anticipate you will probably hear a lot of argument from the defense attorney . . . about what about this firearm? It's a 357 revolver? It's a 10 [mm]? Is it both? Is it neither? Was there even a firearm that was taken? Mr. Gambill was very candid with you about the fact that when he was filling out that theft inventory report he made a mistake. He was very candid with you and he was very candid with Deputy Filing when he realized that what he had intended to write down, the firearm that had in fact been taken, was a 10 [mm] handgun. He let Deputy Filing know and Deputy Filing told you that. Mr. Gambill told you that.

VRP(Aug. 27, 2012) at 530.

The State also stated that, with regard to the charge of theft of a firearm, "the firearm that had in fact been taken, was a 10 [mm] handgun.... Clearly that firearm was taken. The individuals intended to deprive that other person, Mr. Gambill, of that firearm. They took it. They took it permanently." VRP (Aug. 27, 2012) at 530.

With respect to the charges of unlawful possession of a firearm (counts V and VIII), the State stated in its closing,

We have two counts, Counts V and VIII, unlawful possession of a firearm in the second degree. And we are talking about two separate dates, Count V talks about November 7, 2010 knowingly had a firearm in his possession or control. If you are going in and taking a firearm out of the residence you are stealing that firearm. If you believe that the defendant is guilty of theft of a firearm you can also, based on the testimony and the evidence you heard, find that that firearm is in his possession or control.

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