State v. Gingrich

• Docket Number: 85047-4-I
• Decision Date: 24 July 2023
• Parties: STATE OF WASHINGTON, Respondent v. BRUCE CLIVE GINGRICH, Appellant
• Court: Washington Court of Appeals

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STATE OF WASHINGTON, Respondent v. BRUCE CLIVE GINGRICH, Appellant

No. 85047-4-I

Court of Appeals of Washington, Division 1

July 24, 2023

UNPUBLISHED OPINION

FELDMAN, J.

Bruce Clive Gingrich seeks reversal of his conviction and sentence for burglary in the first degree while armed with a deadly weapon. Because the facts of this case are known to the parties, we do not repeat them here except as relevant to the arguments below. We reverse in part and remand the matter with instructions that the judgment and sentence be amended to remedy a double jeopardy violation. In all other respects we affirm.

A. Sufficiency of the Evidence

Gingrich argues that there is insufficient evidence from which a jury could find him guilty of burglary in the first degree while armed with a deadly weapon. We disagree.

To decide whether sufficient evidence supports the jury's verdict, the court must determine "whether any rational fact finder could have found the elements of the crime beyond a reasonable doubt." State v. Homan 181 Wn.2d 102, 105, 330 P.3d 182 (2014). Additionally, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Under RCW 9A.52.020(1), "[a] person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person." Thus, we must consider three elements: "intent to commit a crime against a person or property therein," "enters or remains unlawfully," and "armed with a deadly weapon."

A rational juror could properly find that Gingrich entered or remained unlawfully and did so "with intent to commit a crime against a person or property therein." Id. The evidence includes home security video footage showing that an individual who matched Gingrich's description: entered the residence where Jackie Taylor was sleeping at 12:31 a.m., stood over Taylor and did not wake her up while looking around the room, was wearing metal knuckles (as discussed below), and grabbed a brown leather purse before exiting the residence. Following these events, Taylor was visibly upset. And when police attempted to locate Gingrich, he was found hiding in the forest behind his residence. This is more than sufficient evidence from which a rational juror could have found both the entry and intent elements beyond a reasonable doubt.

The record also includes sufficient evidence from which a rational juror could find that Gingrich was "armed with a deadly weapon." Under Washington law, the State must show that the defendant is "within proximity of an easily and readily available deadly weapon" and that a "nexus is established between the defendant, the weapon, and the crime." State v. O'Neal, 159 Wn. 2d 500, 503-04, 150 P.3d 1121 (2007). Here, Deputy Sheriff Benjamin Rodes testified that if metal knuckles are on someone's hand-as the home security video footage shows- they are immediately available for use and that he has seen only metal knuckles (a "deadly weapon" under RCW 9.95.040) used in criminal activity and had not seen knuckles made of non-metal material. Deputy Rodes also identified a "glint" in the home security video footage, which is additional evidence that the knuckles were made of metal. Gingrich's sufficiency of the evidence argument thus fails.

B. Prosecutorial Misconduct

Gingrich argues that he is entitled to a new trial because the prosecutor committed misconduct by misstating the role of a juror, misstating the law, arguing facts not in evidence, and arguing that defense counsel made "inaccurate" statements of the law. We disagree.

Significantly, Gingrich failed to object at trial to any of these purported instances of prosecutorial misconduct. Under controlling precedent, his failure to do so "constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Slater, 197 Wn.2d 660, 681, 486 P.3d 873 (2021). Additionally, the "court considers the prosecutor's arguments in the context of the case, the arguments as a whole, the evidence presented, and the jury instructions." Id.

1. Misstating the role of a juror

Gingrich argues that the prosecutor misstated the role of the juror during voir dire when she told jurors "your sole duty as the trier of fact is to determine if the allegations the State has made . . . whether those allegations are true, whether they occurred." Properly viewed in context, here is what the prosecutor said:

What we want to know, though, obviously, is if you are able to take the information that's provided to you in the court, you're going to get evidence, whether it is from the witness testimony or exhibits, evaluate that evidence, and then compare it to law that the court instructs you on. And your sole job as jurors, if you end up sitting in the jury panel, is to determine whether those acts occurred as they are alleged, and whether they are consistent or inconsistent with the law as the court instructs you.

(Emphasis added.) Contrary to Gingrich's assertion that the prosecutor misstated the role of the jury, the prosecutor was appropriately examining the jurors in voir dire to identify any biases.

Gingrich also argues that the prosecutor misstated the role of the juror during the State's closing argument when she told jurors that "she had met her burden if they could say 'Man, I really believe he did that,' . . . combined . . . with [the statement that the] jurors could convict even if they want[] more evidence." Properly viewed in context, here is what the prosecutor said:

So if you're saying that to yourself at the end of the case, after fully, fairly evaluating the evidence and discussing with your peers, if you're saying, "Man, I really believe he did that," then I submit to you that I have met my burden, because you didn't know anything about the case, and somehow you have now arrived at a place where you believe he did the things that the State has accused him of and has charged him with. If you don't believe it, then you have a reasonable doubt . . .

But I submit to you if you're saying you believe it but you'd like more evidence, that's a natural reaction. Everybody always wants more evidence . . . I submit to you it's not possible to have 100 percent certainty when you have 12 people sitting together in a room with a lifetime of different experiences . . . But unanimously, if you have an abiding belief in the truth of the charge, then I submit I have met my burden beyond a reasonable doubt.

(Emphasis added.) Gingrich also complains that the prosecutor told the jury that there was no numerical value or litmus test for reasonable doubt and that reasonable doubt is a "really high" standard.

The prosecutor's remarks, properly viewed in context, are consistent with 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01 at 98 (5th ed. 2021) (WPIC), which likewise states: "If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt." In State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d 1241 (2007), the Supreme Court approved WPIC 4.01 as the required jury instruction regarding reasonable doubt. Here again, the prosecutor's remarks are not flagrant or ill intentioned nor did they cause an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.

2. Misstating the law

Gingrich argues that the prosecutor improperly inverted the relationship between knowledge and intent-and thereby misstated the law-when she said, "[i]f you find that they're doing it knowingly, then they're acting with intent." Properly viewed in context, here is what the prosecutor said:

Intent is what you think it is, doing something with intent, intentionally. If you find that they're doing it knowingly, then they're acting with intent. When acting with the objective or purpose to accomplish a result that constitutes a crime.

The prosecutor's remark is consistent with the applicable jury instruction, which states that "[a] person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime." WPIC 10.01, at 225. Proof of knowledge tends to show objective or purpose, which in turn shows intent. There was no improper inversion here.

Gingrich also argues that the prosecutor misstated the law when she "told jurors they could not consider Taylor's absence during deliberations." Properly viewed in context, here is what the prosecutor said:

You don't get -- I submit to you, you don't get to assume. You don't get to guess why Ms. Taylor is not present. Whether it's Ms. Taylor, whether it's the State, or whether it's the defendant, you don't get to guess. You don't get to consider that. You get to consider the evidence that's in front of you, and that's what you get to consider. And I submit to you, based on all of the evidence that you have seen, all of these things are consistent with what the State has charged.

(Emphasis added.) The prosecutor was telling jurors that they should decide the case based on the evidence before them. This, too, is consistent with the controlling jury instruction. WPIC 1.02, at 26. In this respect as well, the prosecutor's remarks are not flagrant or ill intentioned nor did they cause an enduring and resulting prejudice that could not have...