State v. Aho
Decision Date | 25 October 2016 |
Docket Number | No. 43932-8-II,43932-8-II |
Parties | STATE OF WASHINGTON, Respondent, v. MATTHEW DAVID AHO, Appellant |
Court | Washington Court of Appeals |
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 assistanceof 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).
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.
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.
On August 20, 2012, the parties conducted voir dire in open court. The following colloquy took place:
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.
VRP (Aug. 20 & 21, 2012) at 103. Aho did not challenge this procedure.
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.
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.
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.
The State also stated that, with regard to the charge of theft of a firearm, VRP (Aug. 27, 2012) at 530.
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