State v. Frasquillo
| Citation | 255 P.3d 813,161 Wash.App. 907 |
| Decision Date | 17 May 2011 |
| Docket Number | 39135–0–II.,Nos. 39128–7–II,s. 39128–7–II |
| Court | Court of Appeals of Washington |
| Parties | STATE of Washington, Respondent,v.David Andrew FRASQUILLO, and Joseph Frasquillo, Jr., Appellants. |
OPINION TEXT STARTS HERE
Jan Trasen, Attorney at Law, Seattle, WA, Michelle Bacon Adams, Law Office of Michelle Adams PLLC, Port Orchard, WA, for Appellants.Randall Avery Sutton, Kitsap Co. Prosecutor's Office, Port Orchard, WA, for Respondent.
PART PUBLISHED OPINION
[161 Wash.App. 909] ¶ 1 At a consolidated jury trial, David and Joseph Frasquillo were each convicted of two counts of second degree assault and one count of attempted second degree assault, all with firearm sentencing enhancements. Joseph 1 was also convicted of first degree unlawful possession of a firearm. David appeals his convictions, arguing that (1) introducing Joseph's statements against him violated his confrontation clause rights,2 (2) the trial court gave an erroneous accomplice liability instruction, and (3) there was insufficient evidence as to one of the victims. Joseph appeals his convictions and the firearm enhancements, arguing that (1) the trial court erroneously gave a transferred intent jury instruction, (2) the trial court erred by failing to dismiss the attempted assault charges, (3) there was insufficient evidence to prove the assault charges, (4) the trial court's refusal to sever the firearm possession charge violated his right to a fair trial, (5) the trial court placed him in double jeopardy by failing to dismiss with prejudice two first degree assault charges on which the jury did not reach a unanimous verdict, and (6) the trial court erred by applying multiple firearm sentencing enhancements because the firearm was an element of each of the charged offenses. In his statement of additional grounds (SAG),3 Joseph further argues that (1) there was insufficient evidence to convict him of firearm possession, and (2) the trial court gave an erroneous “to convict” instruction. We affirm.
¶ 2 This case involves a conflict between two groups of friends that escalated into David and Joseph Frasquillo and an accomplice shooting out the windows of an occupied house. The conflict was between the friends of Andrew Treacher 4 and the friends of Andrew's ex-girlfriend, Shaelyn Luzik.5
¶ 3 On the evening before the incident, Andrew's friend Dustin Williams received a text message claiming that Shaelyn came to Andrew's workplace with four men, including her boyfriend Matthew Knowlton, and pushed Andrew around. The record does not demonstrate whether this assault actually occurred; the only evidence presented at trial regarding this exchange was testimony that Shaelyn's friends, Jacob Knowlton and Mike Lawrence, came to Andrew's workplace and were loud and disorderly. Nonetheless, Dustin retaliated by leaving a threatening note on Shaelyn's car. From there, a conflict built between the two groups involving the exchange of threatening text messages and phone calls that culminated in an agreement for the groups to meet in Silverdale to fight.
¶ 4 Before driving to Silverdale, Andrew's group drove past the home of Shaelyn's boyfriend, Matthew Knowlton, to find out if Matthew and Shaelyn were there or if they had left to meet them in Silverdale. Matthew and Shaelyn were there, though the group did not see them. Matthew saw the group's two cars drive past his house without their lights on. Due to the threatening phone calls and text messages, Matthew called the police and reported that suspicious cars had driven past his house.
¶ 5 Andrew's group then drove to Silverdale to meet Shaelyn's group, but Shaelyn's group was not there. Zach Gibbs–Churchley, one of Andrew's friends, then directed the group to the Frasquillo home where they met David and Joseph Frasquillo. There, one of the witnesses, Aaronessa Devin, saw both David and Joseph handle a pair of shotguns.
¶ 6 Andrew's group then met up in the parking lot of a Payless drug store in East Bremerton. Aaronessa testified that David and Joseph were in Zach's minivan6 in the Payless parking lot at that time, and Zach was very angry at Shaelyn's group. Andrew testified that he saw both David and Joseph in Zach's van wearing paintball masks and holding shotguns. He also testified that Zach's van drove out of the parking lot just before 3:00 a.m.
¶ 7 At 2:30 or 3:00 a.m., Matthew saw a light blue or dark color Mercury Villager or Nissan Quest minivan drive past his house. Matthew got back into bed, and then the window of his bedroom shattered. Matthew assumed the window had been shattered by a rock. Shaelyn, who was in bed with Matthew at the time, also believed a rock had shattered the window. Shaelyn received superficial cuts from glass that fell onto the bed.
¶ 8 Also in the house were Matthew's mother, Linda, his father, Keith, and his brother, Jacob. Linda was awake at the time of the shooting. Linda testified that she heard two loud knocks. Keith was asleep at the time of the shooting and was awakened by what he believed was “a really loud knock on the door.” 4 Report of Proceedings at 428. There was no evidence of either Keith or Linda being frightened by the incident. Jacob slept through the shooting. A subsequent police investigation revealed that Matthew's bedroom window and the window of another room in the house had been shot out by two shotgun blasts. The police arrested Zach in connection with the shooting.
¶ 9 The police obtained a warrant to search the Frasquillo house and, while executing the warrant, saw Joseph Frasquillo's car drive past the house and accelerate away. A deputy pursued the car and stopped it, detaining David and Joseph. Before the police searched the trunk of the car, Joseph said that the shotgun inside belonged to David. David also told the police that the shotgun was his. The police searched the trunk of the car and found a shotgun and two paintball masks. The police found another shotgun in an unlocked case in the Frasquillos' living room. Evidence at trial established that the car belonged to Joseph and further established that the shotguns found were the same guns that David and Joseph had possessed just before the shooting. David and Joseph's father testified that all guns in the Frasquillo house were kept locked and away from Joseph. David and Joseph's brother, Darren Frasquillo, testified that both of the shotguns at issue belonged to David, who did not let Joseph use them.
¶ 10 The State charged both David and Joseph with first degree assault or, in the alternative, second degree assault against Matthew and Shaelyn (counts I through IV), and with attempted second degree assault against Keith, Linda, and Jacob (counts V through VII). All of the assault charges alleged the use of a firearm as a sentencing enhancement. The State also charged Joseph with first degree unlawful possession of a firearm.
¶ 11 The State moved to consolidate the charges against David and Joseph; the trial court granted this motion. Joseph moved to sever the firearm charge, arguing that David's testimony would be necessary for Joseph's defense to that charge and that David would be unavailable to testify in the consolidated trial because he was a codefendant. The trial court denied this motion. During pretrial motions, when discussing Joseph's statement that David owned the shotgun found in Joseph's trunk, David's counsel assured the trial court that the statement did not raise an issue under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
¶ 12 At trial, David and Joseph called an alibi witness, Tiffany Weir. Tiffany testified that David and Joseph had been at her house from 10:30 p.m. on the night before the shooting until at least 5:00 a.m. on the morning of the shooting. A detective testified that Tiffany reported that David and Joseph had left her house at 1:30 or 2:00 that morning, though Tiffany denied making such a statement. At the close of the State's case and again at the close of all the evidence, both David and Joseph moved to dismiss the charges for insufficient evidence. The trial court denied these motions.
¶ 13 The trial court instructed the jury on transferred intent.7 The trial court also gave instructions on accomplice liability.8 And the trial court further instructed the jury not to consider one defendant's out-of-court statements as evidence against the other.9 The trial court also gave “to convict” instructions on the second degree assault charges that failed to include the intent element.10 The jury found David and Joseph guilty of second degree assault against Shaelyn and Matthew (counts II and IV), and of attempted second degree assault against Jacob (count VII). The jury returned special verdicts finding that David and Joseph were armed with firearms during all three assaults. The jury failed to reach unanimous verdicts as to first degree assault against Shaelyn and Matthew (counts I and III) and as to attempted second degree assault against Keith and Linda (counts V and VI). The jury found Joseph guilty of first degree unlawful possession of a firearm.
¶ 14 At sentencing, the State moved to dismiss counts I, III, V and VI without prejudice. David and Joseph argued that the counts should be dismissed with prejudice. The trial court granted the State's motion and dismissed the counts without prejudice. The trial court sentenced Joseph to 132 months of incarceration, including 90 months for firearm sentencing enhancements. The trial court sentenced David to 103 months of incarceration, also including 90 months for firearm sentencing enhancements. David and Joseph appeal.
¶ 15 Joseph argues that the trial court violated his right to a fair trial by giving the transferred intent jury instruction. He argues that the doctrine of transferred intent did not apply because neither Linda, Keith, nor Jacob were harmed or put in...
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