State v. Bradley
| Decision Date | 16 June 2014 |
| Docket Number | No. 71647-6-I,71647-6-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JAMES BRADLEY, Appellant. |
UNPUBLISHED OPINION
SPEARMAN, C.J. — James Bradley appeals his conviction and sentence for second degree assault while armed with a deadly weapon, malicious mischief in the third degree, theft in the third degree, vehicle prowling in the second degree, and obstructing a law enforcement officer. He argues that the evidence was insufficient to support the deadly weapon enhancement, the theft conviction, and the obstruction conviction; that it violated double jeopardy to punish him for both vehicle prowl and theft; and that the trial court impermissibly imposed legal financial obligations. In a statement of additional grounds, Bradley argues that the prosecutor committed misconduct by misstating the definition of assault.
FACTS
Sage Sanchez hired James Bradley to repair Sanchez's father's motor home. On September 12, 2012, Sanchez went to Bradley's house in Tacoma to pay Bradley $540 for work he had done repairing Sanchez's father's motor home the previous week.Bradley told Sanchez he needed to be paid an additional $75 for work he did two days prior, so he could pay his bills. Sanchez told Bradley he would receive the rest of the money as soon as Sanchez's father deposited another check. Bradley said "'I see how this is going to go.'" Verbatim Report of Proceedings (VRP) (12/04/12) at 187. He went into his house and retrieved an aluminum baseball bat. Bradley then told Sanchez, '"[y]ou're going to pay me, or I'm going to take out every cent or every dollar on this truck.'" VRP (12/4/12) at 188. Bradley hit the truck with the bat three times, leaving dents. Sanchez was one or two feet away when Bradley began hitting the truck. Bradley then chased Sanchez around the truck with the bat raised, demanding to be paid.
Sanchez went across the street and asked a neighbor if he could go inside her house to call 911. She said no. Sanchez saw Bradley coming towards him with the bat, so he went to the opposite side of the car parked in front of the neighbor's house. Sanchez walked around the car quickly two or three times, trying to keep away as Bradley continued to chase him with the bat raised. Sanchez testified that he was afraid because "someone his size, if you get hit in the head with the bat at a full swing, you can probably die." 12/4/12 RP 201. However, Sanchez said Bradley never swung the bat at him.
Sanchez then said " " VRP (12/4/12) at 201. Bradley then walked back towards Sanchez's truck and said he was going to take Sanchez's leaf blower as collateral. Bradley removed the leaf blower from Sanchez's truck and placed it on the porch. Bradley then reached into the truck through the driver's window, removed the keys from the ignition, went into the house, and dropped the keys on the couch, and left.
Police officers arrived quickly in response to 911 calls from several neighbors who witnessed the incident. Police searched the area looking for Bradley but were initially unable to find him. Elizabeth Blankenship, who lived at the same house as Bradley, received a text message from Bradley telling her that he was in the backyard tool shed and asking her to let him know when the police left. Blankenship notified the police. Two police officers knocked on the tool shed door, announced "Tacoma police, if someone is in there, come out with [your] hands up." VRP (12/5/12) at 345-46. There was no reply. They entered the tool shed and found Bradley.
Bradley was arrested and charged with one count of assault in the second degree while armed with a deadly weapon, one count of malicious mischief in the third degree, one count of theft in the third degree, one count of obstructing a law enforcement officer, and one count of vehicle prowling in the second degree. A jury found Bradley guilty as charged. Bradley received a standard range sentence of 14 months for second degree assault, consecutive to 12 months for the deadly weapon enhancement, and consecutive terms of two months for each of the four gross misdemeanor convictions. Bradley appeals.
DISCUSSION
Bradley argues that the evidence was insufficient to find him guilty of the deadly weapon sentence enhancement, obstructing a police officer, or third degree theft. "When reviewing the sufficiency of the evidence to support a conviction, 'the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Myles, 127 Wn.2d 807, 816, 903 P.2d 979 (1995), quoting State v. Joy,121 Wn.2d 333, 338, 851 P.2d 654 (1993). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980)).
Deadly Weapon
Bradley does not challenge his conviction for second degree assault with a deadly weapon. Rather, he argues that the evidence was insufficient to impose a deadly weapon sentencing enhancement. When used as a means of committing second degree assault, a "deadly weapon" is defined as an explosive, firearm, or "any other weapon, device, instrument, article, or substance ... which, under the circumstances in which it is used, ... is readily capable of causing death or substantial bodily harm." RCW 9A.04.110(6); see RCW 9A.36.021(1)(c). In contrast, if an instrument is not on the statutory list of per se deadly weapons, it qualifies as a "deadly weapon" for sentencing enhancement purposes only if it "has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death." RCW 9.94A.825. Baseball bats are not on the statutory list of per se deadly weapons. Thus, Bradley argues that the baseball bat does not qualify as a "deadly weapon" for sentencing enhancement purposes because there is insufficient evidence that he used it in a manner that was likely to produce or may easily and readily produce death. Whether a weapon is deadly is a question of fact, which the State must prove beyond a reasonable doubt. State v. Tongate, 93 Wn.2d 751, 754, 613 P.2d 121 (1980).
We need not reach the question of whether Bradley used the aluminum bat in a manner that was likely to produce or may easily or readily produce death. Jury Instruction No. 34 stated in relevant part:
A deadly weapon is an implement or instrument that has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are examples of deadly weapons: blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, and any metal pipe or bar used or intended to be used as a club.
CP at 85 (Emphasis added.) The second sentence of this instruction provided the jury with the statutory list of deadly weapons per se, and the first sentence provided them with the statutory definition for deadly weapons that are not included on the per se list. RCW 9.94A.825. Bradley did not object to this instruction. Therefore, the jury was entitled to consider whether the aluminum bat was a deadly weapon under either prong of the definition. The jury could have found that an aluminum bat qualifies as a deadly weapon per se because it meets the definition of "any metal pipe or bar used or intended to be used as a club." We uphold the deadly weapon sentencing enhancement.
Obstruction
Bradley argues that his conviction for obstructing a law enforcement officer must be reversed because he had a constitutionally protected right to refuse warrantless police entry into the shed where he was hiding.1 He contends that "passive refusal toconsent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing." U.S. v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978). The State argues that the right to refuse a warrantless entry does not apply to toolsheds on other people's property. This argument lacks merit, because the record clearly shows that Bradley was hiding in a shed in his own backyard.
However, Bradley did not move to dismiss the obstruction charge below based on his right to refuse warrantless police entry into his shed. The record shows that defense counsel merely made a cursory oral motion to dismiss the charge based on insufficient evidence, which the trial court promptly denied without further argument.2 Under RAP 2.5(a), an issue first raised on appeal may be reviewed by an appellate court where it is a manifest error affecting a constitutional right. For this exception to apply, Bradley must show that "(1) the error implicates a specifically identified constitutional right, and (2) the error is 'manifest' in that it had 'practical and identifiable consequences' in the trial below." State v. Bertrand, 165 Wn. App. 393, 400, 267 P.3d 511 (2011) review denied. 175 Wn.2d 1014, 287 P.3d 10 (2012). We cannot conclude that the alleged error is "manifest." Bradley's argument is based on the premise that, absent a warrant, he was not obligated to respond to the officer's commands. But it is not clear that police needed a warrant in this situation. Bradley's housemate Elizabeth Blankenship testified that she gave consent for the police to search the home, and told them that Bradley was hiding in the shed. Nor is it clear that Bradley had a reasonableexpectation of privacy in the shed. Because the warrantless entry issue was not raised below, the record on these fact-specific issues is undeveloped. Accordingly, we cannot further analyze the warrantless entry question. "RAP 2.5(a) does not...
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