State v. Craver
| Decision Date | 27 September 2022 |
| Docket Number | 56103-4-II |
| Parties | STATE OF WASHINGTON, Respondent, v. DEMECIES DAYTON CRAVER, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
A jury found Demecies Craver guilty of two counts of third degree assault, one count of harming a police dog, one count of fourth degree assault, and one count of violation of a no contact order. As part of Craver's sentence, the trial court imposed legal financial obligations (LFOs) with an income withholding provision, which authorized the Department of Corrections or clerk to issue a notice of payroll deduction. Craver appeals the income withholding provision of his judgment and sentence, arguing that the trial court cannot satisfy his LFOs by attaching or garnishing social security income. Craver also filed a statement of additional grounds for review (SAG), arguing that the jury improperly communicated with a third party, the State did not prove an absence of self-defense by substantial evidence, and a witness lacked credibility.
We hold that Craver's income withholding argument is not reviewable because he failed to preserve the error. We also hold that sufficient evidence supports Craver's convictions and that there was no juror misconduct, but we do not address his credibility argument. We affirm.
Before trial, a superior court commissioner imposed a domestic violence no contact order protecting Craver's younger sister.
On December 21, 2019, Craver's mother called 911 to report that Craver had assaulted his six year old developmentally delayed sister and had attempted to retrieve a gun from under the mother's bed. Deputy Jankens and Deputy Kurkowski responded to the call, and a struggle ensued. The deputies asked Craver to put his hands behind his back, but Craver resisted arrest by tensing his arms in an attempt to resist being handcuffed. Craver then started to strike Deputy Kurkowski and grabbed ahold of him. In response, Deputy Kurkowski struck Craver multiple times to gain compliance but Craver did not comply. Deputy Kurkowski then tased Craver, and Craver dropped to his knees. Before the deputies were able to handcuff Craver, Craver got up and lunged at Deputy Kurkowski. The officers continued their attempts to handcuff Craver, but Craver continued to swing at the officers.
Craver fell to the ground, then got up after a few seconds and ran outside the house. The officers ran after Craver and tased him again but failed to handcuff him before the taser cycle wore off. Deputy Jankens then attempted to perform vascular neck restraint to render Craver unconscious so they could place him into handcuffs. Craver pretended to be unconscious and when Deputy Jankens released his grip, Craver escaped. Deputy Kurkowski deployed pepper spray, but it was ineffective. Deputy Kurkowski and Deputy Jankens requested backup from a third officer, Deputy Redding, who warned Craver that he would release a police dog if he did not lay on his stomach. Craver did not comply.
Deputy Redding released the police dog, who immediately latched onto Craver. Craver then held the police dog in a chokehold until the police dog's body became limp. The officers eventually gained control over Craver and handcuffed him.
The State charged Craver with two counts of third degree assault for assaulting the police officers, one count of second degree unlawful possession of a firearm, one count of harming a police dog, one count of assault in the fourth degree for assaulting his minor sister, and violation of a no contact order. The case proceeded to a jury trial. Craver asserted self-defense as to third degree assault and harming a police dog.
At trial, Deputy Kurkowski, Deputy Jankens, and Deputy Redding testified to the facts listed above. At the close of the evidence, Craver called an unusual juror situation to the attention of the trial court.
A police officer who had responded to the scene of a different 911 call involving Craver had died en route. Apparently, that officer's widow had appeared at a different trial and attempted to contact jurors. In this case, Craver asked that juror 8 be made an alternate, stating that juror 8 attended the same church as the deceased officer's parents, and mentioning the wife's conduct in the other case. Craver conceded that there was no evidence that juror 8's judgment was affected by those facts. The trial court denied Craver's request, explaining that the case law did not allow the court to exclude a juror based solely on the appearance of fairness, and that it did not appear that the communications with the juror had tainted the jury pool.
The jury found Craver guilty of two counts of third degree assault, one count of harming a police dog, one count of fourth degree assault, and one degree of violation of a no contact order. As part of Craver's felony convictions, the trial court found Craver indigent and imposed a $500 victim penalty assessment fee and a $100 DNA collection fee as LFOs. The judgment and sentence included the following notice:
NOTICE OF INCOME-WITHHOLDING ACTION. If the court has not ordered an immediate notice of payroll deduction in Section 4.1, you are notified that the Department of Corrections or the clerk of the court may issue a notice of payroll deduction without notice to you if you are more than 30 days past due in monthly payments in an amount equal to or greater than the amount payable for one month. RCW 9.94A.7602. Other income-withholding action under RCW 9.94A may be taken without further notice. RCW 9.94A.7606.
Craver appeals his judgment and sentence.
Craver argues that the trial court erred by including the income withholding provision in his judgment and sentence. The State argues that Craver may not challenge the provision for the first time of appeal because he failed to preserve the issue. We agree with the State.
A defendant who makes no objection to the imposition of LFOs at sentencing is not entitled to review. State v. Stoddard, 192 Wn.App. 222, 224-26, 366 P.3d 474 (2016). We have discretion to refuse to review a claim of error not raised in the trial court, unless the defendant can show that the error falls under an exception. RAP 2.5(a). A party may argue for the first time on appeal that the trial court lacked jurisdiction, a party failed to establish facts upon which relief can be granted, and the trial court committed manifest error affecting a constitutional right. RAP 2.5(a).
The purpose of issue preservation is to maintain judicial efficiency. State v. Robinson, 171 Wn.2d 292, 304-05, 253 P.3d 84 (2011). Issue preservation ensures that the trial court has the opportunity to correct any errors, thereby avoiding unnecessary appeals. Robinson, 171 Wn.2d at 304-05. Therefore, permitting appeal of unpreserved issues undermines the trial process and wastes judicial resources. Robinson, 171 Wn.2d at 305.
Here, Craver never objected to the trial court's imposition of LFOs or the income withholding provision of his judgment and sentence, thus he can only assert his argument for the first time on appeal if it meets the RAP 2.5(a) exceptions. Craver bases his argument on 42 U.S.C § 407(a), which provides that social security income based on disability or old age may not be garnished or attached. State v. Dillon, 12 Wn.App. 2d 133, 153, 456 P.3d 1199 (2020). The alleged violation here does not fall within any of the stated exceptions, nor does Craver make any argument that it does. Because Craver failed to object, he did not preserve the error and we decline to consider this issue.
Craver argues that a decedent officer's wife tampered with the jury, entitling him to a new trial. We disagree.
"Communications between a third person and a juror about an ongoing trial constitute misconduct which warrants a new trial if such communications prejudice the defendant." State v Brenner, 53 Wn.App. 367, 372, 768 P.2d 509 (1989), overruled on other grounds by State v. Wentz, 149 Wn.2d 342, ...
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