State v. Engelstad, 30640-2-III

• Decision Date: 30 September 2014
• Docket Number: 30640-2-III,30641-1-III
• Parties: STATE OF WASHINGTON, Respondent, v. GARY DALE ENGELSTAD, JR, JOSEPH LEE SHOUSE, Appellants.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. GARY DALE ENGELSTAD, JR, JOSEPH LEE SHOUSE, Appellants.

Nos. 30640-2-III, 30641-1-III

Court of Appeals of Washington, Division 3

September 30, 2014

UNPUBLISHED OPINION

FEARING, J.

A jury found Joseph Shouse and Gary Engelstad guilty of two counts of robbery in the first degree, three counts of assault in the second degree, burglary in the first degree, and unlawful possession of a firearm in the first degree. Both defendants raise numerous issues on appeal: Whether sufficient evidence supports their convictions? Whether prosecutors engaged in misconduct? Whether second degree assault merges with first degree robbery? Whether dismissal of counts eight and nine theft in the second degree, negates an essential element of the first degree robbery offenses? In addition, Shouse and Engelstad filed statements of additional grounds, arguing ineffective assistance of counsel, cumulative trial court errors, prosecutorial misconduct, and jury tampering. The charges stem from erratic behavior of Shouse and Engelstad with their companions, on October 20, 2011, at the property of Gerald Moccardine.

FACTS

An understanding of the criminal charges requires some background. Victim Gerald Moccardine makes his living collecting scrap metal and other "junk." To acquire the scrap metal, Moccardine often scouts his environs looking for businesses or residences where cars or other junk have accumulated. In early October 2010, Gerald Moccardine saw cars and other potentially valuable scrap metal at Joseph Shouse's charred home. Moccardine approached Shouse at his home and asked whether he could collect the scrap metal and other junk littered around his property. According to Moccardine, Shouse gave him permission to take some, but not other, scrap.

On October 13, 2010, Gerald Moccardine and a friend went to Joseph Shouse's home late at night to collect the offered scrap metal. While they loaded the junk into Moccardine's van, Shouse and two of Shouse's friends arrived. Shouse demanded they put everything back. Moccardine testified he returned all objects. Joseph Shouse and his friend Gary Engelstad believed Moccardine stole some property.

On October 17, Joseph Shouse and Gary Engelstad drove to Gerald Moccardine's property. Moccardine considered the visit to be friendly and invited the two into his house trailer. Dawn Flood, who stayed with Moccardine at the time, was inside the trailer. Flood concluded that Engelstad and Shouse were angry with Moccardine. She testified that Shouse carried a hammer and asked her, apparently outside of Moccardine's earshot, if she would "freak out" if he smashed Moccardine's hands with it. Report of Proceedings (RP) at 182. She asked him if it mattered, and continued "visiting" with Shouse and Engelstad because she "didn't want any problems." RP at 181.

Gerald Moccardine showed Joseph Shouse around Moccardine's property. As the two walked the property, Gary Engelstad searched the trailer. After Shouse and Engelstad left the property, Moccardine noticed several objects missing including an air gun and old tools.

Two days later, on October 19, Julie Curry went to Gerald Moccardine's property to get snow tires. The sun set before Moccardine could place the tires on Curry's car. So Curry decided to spend the night with Dawn Flood and Moccardine inside the trailer. The presence of Curry and Flood compound the charges against Joseph Shouse and Gary Engelstad.

Before retiring to bed, Curry decided to retrieve cigarettes from her van. When she opened the trailer door, she saw four people standing around her van. Surprised to see people, she called to Moccardine and Flood, "there is people here." RP at 408. Gerald Moccardine and Dawn Flood came to the trailer door. Four people then walked from Julie Curry's van toward the trailer door. Flood and Moccardine recognized two of them as Joe Shouse and Gary Engelstad. Curry recognized one of them as Gary Engelstad. Stephanie Van Comen, the mother of Joseph Shouse's son, was also present with Shouse and Engelstad, although Moccardine Flood, and Curry did not see her.

After reaching the door to Moccardine's trailer, Joe Shouse asked Moccardine and Dawn Flood why they complained to the police about him. Moccardine and Flood denied having contacted the police. Gary Engelstad then approached Moccardine and said "this is the second time I have had to deal with you on a car deal, " and he told Moccardine that he was going to take his alternators. RP at 300. Moccardine said, "nobody is taking nothing from here." RP at 299. Engelstad then hit Moccardine in the face. Moccardine backed into his trailer, and Engelstad followed. Engelstad threw an object that struck Moccardine in the head, causing him to bleed.

Upon Gerald Moccardine being struck, his billfold fell off a table and onto the floor. Moccardine bent to retrieve the billfold, as Gary Engelstad asked, "what are you after, " and brandished what appeared to be a firearm. RP at 308. Dawn Flood, in an attempt to stop Engelstad, tugged on his sweat shirt, exclaiming "knock it off, " "come on, " "why do you got to pull a gun?" RP at 199. Flood testified at trial that Engelstad did not point the gun at her and that she did not feel threatened by Engelstad.

At trial, Julie Curry testified that Gary Engelstad pointed the gun "at all of us more or less . .. because we were all standing close together but mostly at [Moccardine]." RP at 414. Moccardine testified, "Say I seen [Engelstad] holding the gun .... [I]t could have been a pipe[;] all I seen was a[n] octagonal barrel." RP at 311.

As a result of Engelstad's pointing his gun, Curry feared for her safety. During trial, the State asked if she felt threatened by the gun? Curry responded;

Yeah, because mostly because I felt maybe not so much that it was—I mean I don't want to believe anybody was going to get shot or anything but it was just getting—it was getting scary because the jostling and everything I thought perhaps it would go off accidentally, yeah, I was a little worried.

RP at 416. The State asked further if Curry was afraid for her safety? Curry replied, "Yeah, I was at that point just trying to back out[;] I was like trying to duck out under people's arms and stuff and get back." RP at 416.

With weapon in hand, Gary Engelstad took Gerald Moccardine's wallet and the $15 therein. Julie Curry went outside to her van to calm her barking dogs. After Curry left the trailer, a third person entered the house trailer brandishing a weapon. Upon entering, he moved the gun with his gaze across the trailer in a sweeping fashion. Gary Engelstad lowered his weapon and went outside. The third man then demanded Dawn Flood's and Gerald Moccardine's cell phone batteries and said, "you ain't going outside now." RP at 315. He holstered his weapon, but straddled the trailer door until the gang of four left. Julie Curry testified that the "person standing at the doorway ... was holding a gun on [Moccardine] and [Flood] to keep them" in place. RP at 422.

While the third man stood guard, Gary Engelstad, Joseph Shouse, and a fourth man rummaged through the various trailers on Moccardine's property. During this time, Shouse approached Julie Curry while she stood on the steps of her van, called out to her, and identified himself. Curry then recognized Shouse. Shouse told Curry her van blocked their access to a trailer and asked her to move it. Curry complied. After Curry moved her van, she laid down inside it.

For the next 45 to 90 minutes, Julie Curry, Dawn Flood, and Gerald Moccardine heard people opening and closing cars and trailers and moving objects. None of them saw anyone take any scrap.

After Gary Engelstad, Joseph Shouse, and their two to three companions left Gerald Moccardine's property, Dawn Flood and Moccardine discovered two crown royal bags of Flood's jewelry, Flood's son's Play Station Portable, Moccardine's welder, torch, and various other tools missing.

PROCEDURE

The State charged Gary Engelstad and Joseph Shouse each with nine crimes as follows:

1. Robbery in the first degree by taking personal property of Gerald Moccardine by the use of force and, in the course of the robbery, being armed with a deadly weapon, displaying what appeared to be a deadly weapon, or inflicting bodily injury on Moccardine;

2. Assault in the second degree upon Gerald Moccardine with a deadly weapon, the handgun;

3. Robbery in the first degree by taking personal property of Dawn Flood by the use offeree and, in the course of the robbery, being armed with a deadly weapon, displaying what appeared to be a deadly weapon, or inflicting bodily injury on Flood;

4. Assault in the second degree upon Dawn Flood with a deadly weapon, the handgun;

5. Assault in the second degree upon Julie Curry with a deadly weapon, the handgun;

6. Burglary in the first degree by entering the building of Gerald Moccardine while armed with a deadly weapon or during which Moccardine was assaulted;

7. Unlawful possession of a firearm in that each had prior disqualifying crimes;

8. Theft in the second degree by taking auto parts and tools of Gerald Moccardine valued at more than $750; and

9. Theft in the second degree by taking jewelry of Dawn Flood valued at more than $750.

Shouse and Engelstad were charged as both a principal and an accomplice on each count. The charges against both were heard during the same trial. We are unaware of any charges against the third and fourth men.

At trial the State called as witnesses several responding police officers, Gerald Moccardine, Dawn Flood, Julie Curry, and Stephanie Van Comen. Because Shouse and Engelstad contend the prosecutor's examination of those witnesses amounted to misconduct, we recount some of the testimony the State...