State v. Dow

• Decision Date: 21 June 2011
• Docket Number: No. 39870–2–II.,39870–2–II.
• Citation: 162 Wash.App. 324,253 P.3d 476
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Jeffrey Allen DOW, Appellant.

162 Wash.App. 324

253 P.3d 476

STATE of Washington, Respondent,

v.Jeffrey Allen DOW, Appellant.

No. 39870–2–II.

Court of Appeals of Washington, Division 2.

June 21, 2011.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.Sara I. Beigh, Lewis County Prosecutor's Office, Chehalis, WA, for Respondent.QUINN–BRINTNALL, J.

[162 Wash.App. 326] ¶ 1 A jury found Jeffrey Dow guilty of first degree burglary, under RCW 9A.52.020(1)(b), and unlawful possession of a controlled substance (methamphetamine), under RCW 69.50.4013. Dow appeals only his burglary conviction, challenging several of the trial court's jury instructions. First, he assigns error to the trial court's duress jury instruction, asserting that the trial court did not explain that duress negates the intent element of burglary and requires that the State prove the absence of duress beyond a reasonable doubt. Next, Dow claims that the trial court had a duty to sua sponte provide a limiting instruction on the use of prior convictions admitted under ER 609(a)(2), and that failing to provide the instruction prejudiced him. Last, Dow asserts that he received ineffective assistance from his counsel related to these alleged jury instruction errors. Because the jury was properly instructed, we affirm.

FACTS

¶ 2 Randy Blair testified that on the night of October 14, 2008, he woke up and found Paul Peterson and Dow inside his trailer home. Blair had previously purchased drugs from Peterson but had never met Dow. Peterson had a gun and demanded money from Blair to pay off a drug debt. When Blair said he did not have the money, Peterson looked at Dow and said, “[Y]ou know what you got to do.” Report of Proceedings (RP) (Sept. 22, 2009) at 50. Dow then beat Blair's head and chest while Peterson pointed the gun in their direction. Blair testified that he did not recall Dow “ever appear[ing] to hesitate to hit [him].” RP (Sept. 22, 2009) at 81. At some point during the beating, Blair noticed that Peterson had left the trailer with the gun and he began fighting back; Blair testified that he thought Dow did not know Peterson had left because Peterson had been standing behind Dow. Blair grabbed a propane bottle, began swinging it around to fend off Dow, and the two continued fighting for about three to five minutes. Eventually, Dow fled from the trailer, Blair followed him, and Blair saw Dow jump into Peterson's car and drive away. Blair got the car's license plate number, went to a nearby house, and called 911. As a result of the attack, Blair sustained severe bruising on his head, a bloody nose, and two broken ribs.

¶ 3 Centralia police officers spotted Dow walking on a sidewalk the following day and arrested him. During a search incident to arrest, police found drugs and drug paraphernalia, including scales, baggies containing a white powdery substance later confirmed as methamphetamine, two syringes, and a spoon with residue on it in Dow's coat pocket.

¶ 4 The State charged Dow with first degree burglary and unlawful possession of a controlled substance (methamphetamine). Dow initially pleaded guilty to both charges. But he withdrew the plea when an offender score miscalculation changed his standard sentencing range. The case proceeded to trial in September 2009.

[162 Wash.App. 328] ¶ 5 At trial, Dow testified that on the night of the incident, he and Peterson ingested drugs together and then Peterson wanted to collect a drug debt from him. Peterson offered to forgive Dow's debt if he helped collect Blair's drug debt.¹ Dow testified that there was no discussion of how they were going to collect the debt or that they would use violence to collect it, but Dow saw Peterson had a gun. Dow also testified that he was aware that Peterson's prior drug debt collection activities always involved getting “physical with somebody.” RP (Sept. 23, 2009) at 170. Dow testified that he agreed to accompany Peterson because he was afraid of what Peterson might do to him if he refused. Dow testified that he believed if he did not cooperate with Peterson that he would be killed or seriously injured.

¶ 6 Dow testified that he and Peterson entered Blair's trailer. Dow told Blair he needed to “come up with some money” and then Peterson and Blair began arguing when Blair said that he could not pay his debt. RP (Sept. 23, 2009) at 171. Dow testified that Peterson placed the gun on his kidney and told him to “get [Blair].” RP (Sept. 23, 2009) at 172. Dow then hit Blair and continued hitting him because he was afraid to stop while Peterson stood behind “[his] back with the pistol.” RP (Sept. 23, 2009) at 174. According to Dow, eventually Peterson stopped the fight and left, Dow collected some things off the floor that had fallen out of his pockets, and then he and Peterson left in a car and headed to a bar. The next day Dow got rid of Peterson's gun. Officer Ruben Ramirez testified that on the day of Dow's arrest, Dow gave a statement to police with details similar to his trial testimony.

¶ 7 At the end of Dow's cross-examination, he admitted, without objection, to having prior convictions for burglary and taking a motor vehicle without permission. Defense counsel did not request, and the trial court did not give, a jury instruction limiting the jury's use of the prior conviction evidence. The trial court instructed the jury on the law of duress and that “[t]he burden is on the defendant to prove the defense of duress by a preponderance of the evidence.” Clerk's Papers (CP) at 41; see also 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 18.01, at 274 (3d. ed. 2008) (stating in relevant part that “[t]he defendant has the burden of proving [duress] by a preponderance of the evidence”).

¶ 8 A jury entered verdicts finding Dow guilty of first degree burglary and unlawful possession of a controlled substance (methamphetamine). The trial court sentenced Dow, who had an offender score of 9+, to 87 months of confinement and up to 36 months of community custody. Dow appeals only his burglary conviction.

ANALYSIS

Duress Defense Jury Instruction

¶ 9 Dow asserts that the trial court erred by instructing the jury that he had the burden of proving by a preponderance of the evidence that he acted under duress. Dow argues that after he asserted his duress defense, the State had the burden to disprove duress beyond a reasonable doubt because duress negates the intent element of first degree burglary. The State responds that Dow failed to preserve any error for review by not objecting to the duress jury instruction at trial and that nothing in Washington law supports Dow's argument that duress negates the intent element of first degree burglary. We discern no error.

¶ 10 Generally, failing to object to a jury instruction at trial precludes appellate review of any alleged errors. CrR 6.15(c); State v. Hickman, 135 Wash.2d 97, 104–05, 954 P.2d 900 (1998). But a defendant may raise an error for the first time on appeal when it is a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Mills, 154 Wash.2d 1, 6, 109 P.3d 415 (2005).

¶ 11 Dow did not comply with CrR 6.15(c)'s requirement to timely object to the jury instructions he seeks to challenge on appeal. But because Dow asserts that the jury instructions relieved the State of its burden of proving all required elements beyond a reasonable doubt, which would violate his due process rights, we review this issue. State v. O'Hara, 167 Wash.2d 91, 100–01, 217 P.3d 756 (2009); State v. McCullum, 98 Wash.2d 484, 487–88, 656 P.2d 1064 (1983).

¶ 12 We review alleged errors of law in jury instructions de novo. State v. Barnes, 153 Wash.2d 378, 382, 103 P.3d 1219 (2005). Due process requires the State to prove every essential element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Deal, 128 Wash.2d 693, 698, 911 P.2d 996 (1996). In order to prove first degree burglary under RCW 9A.52.020(1)(b), the State had to show that Dow (1) entered or remained unlawfully in a dwelling, (2) with an intent to commit a crime against a person or property therein, and (3) assaulted someone.

¶ 13 Duress is an affirmative defense that must be established by a preponderance of the evidence.² State v. Harvill, 169 Wash.2d 254, 258, 234 P.3d 1166 (2010); State v. Frost, 160 Wash.2d 765, 773, 161 P.3d 361 (2007), cert. denied, 552 U.S. 1145, 128 S.Ct. 1070, 169 L.Ed.2d 815 (2008). The burden of proving duress is on the defendant. Frost, 160 Wash.2d at 773, 161 P.3d 361; State v. Riker, 123 Wash.2d 351, 368–69, 869 P.2d 43 (1994). Generally, the affirmative defense of duress does not negate an element of a charged offense; instead, a finding of duress excuses the defendant's otherwise unlawful conduct. Frost, 160 Wash.2d at 773–74, 161 P.3d 361; Riker, 123 Wash.2d at 368, 869 P.2d 43. A finding of duress is an excuse for committing an unlawful act while self-defense is a defense based on performing a lawful act. Compare Frost, 160 Wash.2d at 773–74, 161 P.3d 361, and Riker, 123 Wash.2d at 368, 869 P.2d 43, with State v. Box, 109 Wash.2d 320, 329, 745 P.2d 23 (1987).

¶ 14 Here, the trial court properly instructed the jury on the law of duress in accord with RCW 9A.16.060 and stated that “[t]he burden is on the defendant to prove the defense of duress by a preponderance of the evidence.” CP at 41. The trial court's jury instruction allocating the burden of proving duress to Dow was not error.

¶ 15 Dow cites Dixon v. United States, 548 U.S. 1, 6 n. 4, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006), to claim that duress negates the mens rea element in burglary charges. Dixon involved multiple convictions related to the illegal acquiring of firearms under federal laws that included mens rea requirements of acting “knowingly” and “willingly.” 548 U.S. at 3–5, 126 S.Ct. 2437. Dixon raised an argument similar to Dow's and the Supreme Court rejected...