State v. Griepsma (In re Griepsma)

• Decision Date: 24 May 2021
• Docket Number: No. 79806-5-I (consolidated with 80148-1-I),79806-5-I (consolidated with 80148-1-I)
• Citation: 17 Wash.App.2d 606,490 P.3d 239
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. James David GRIEPSMA, Jr., Appellant. In the Matter of the Postsentence Review of James David Griepsma, Jr., Respondent.

17 Wash.App.2d 606

490 P.3d 239

STATE of Washington, Respondent,

v. James David GRIEPSMA, Jr., Appellant.In the Matter of the Postsentence Review of James David Griepsma, Jr., Respondent.

No. 79806-5-I (consolidated with 80148-1-I)

Court of Appeals of Washington, Division 1.

FILED May 24, 2021

Ordered Published Date June 24, 2021

Richard Wayne Lechich, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Appellant.

Department of Corrections A.g. Office, Attorney at Law, P.O. Box 40116, Olympia, WA, 98504-0116, Holger Kurt Sonntag, Attorney at Law, 1125 Washington St. Se, Olympia, WA, 98501-2283, for Petitioner.

Rosemary Hawkins Kaholokula, Branden Eugene Platter, Erik Pedersen, Skagit County Prosecuting Atty., Attorney at Law, 605 So. Third St., Courthouse Annex, Mount Vernon, WA, 98273, Richard Wayne Lechich, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Respondent.

Smith, J. ¶ 1 A jury found James Griepsma Jr. guilty of six counts of third degree assault and one count of third degree malicious mischief. Griepsma appeals, contending that the court allowed jurors with actual bias to sit on the jury, that the State failed to prove several of the assault charges, that the State was required to charge him under a more specific statute, and that the State failed to prove his criminal history. The Department of Corrections (DOC) filed a postsentence petition, alleging that the court erred by not ordering community custody. We conclude that the State properly charged and proved third degree assault and that Griepsma has failed to establish juror bias. Therefore, we affirm his convictions. However, we agree that the State failed to prove Griepsma's criminal history and that the court was required to impose community custody, and we therefore remand for resentencing.

FACTS

¶ 2 In February 2018, after a bus driver asked Griepsma to get off a bus and Griepsma refused, Griepsma got into a conflict with Skagit Transit employees at a transit station in Mount Vernon. Police officers arrived, and in the subsequent interaction, Griepsma punched the officers, resulting in charges for assault and resisting arrest. While in the Skagit County Jail, Griepsma twice spit on a corrections officer and, in one incident, swung a door at one corrections officer and pushed a different officer's head to the floor, leading to a concussion. The State added several additional third degree assault charges for these incidents on the basis that Griepsma had assaulted "a law enforcement officer or other employee of a law enforcement agency." The State also charged Griepsma with two counts of second degree assault, one against an arresting officer and one against a corrections officer. Finally, the State dismissed the resisting arrest charge and added a charge for third degree malicious mischief.

¶ 3 At trial, Griepsma represented himself. The jury found him guilty of malicious mischief and all but one of the third degree assault charges. The jury left the verdict form blank for the other third degree assault charge and the two second degree assault charges. The court determined that there was a mistrial as to those three charges and dismissed them without prejudice.

¶ 4 At sentencing, the State alleged that Griepsma's sentencing score was 9+, and it recommended the maximum sentence of 60 months under the standard range. The court ordered a midrange sentence of 55 months for each of the assault charges, to be served concurrently, and it did not order community custody. Griepsma appeals.

ANALYSIS

¶ 5 Griepsma contends that biased jurors sat on the jury, that the State erroneously charged and failed to prove several counts of assault, and that the State failed to prove Griepsma's criminal history. DOC challenges the court's failure to impose community custody. Finally, Griepsma raises several additional issues in a statement of additional grounds for review (SAG).¹

Juror Bias

¶ 6 Griepsma first contends that the court allowed jurors with actual bias to serve on the jury and that therefore he is entitled to a new trial. We disagree.

¶ 7 An appellant may raise the issue of juror bias for the first time on appeal, and if a juror exhibited actual bias, the appellant is entitled to a new trial. State v. Irby, 187 Wash. App. 183, 192-93, 347 P.3d 1103 (2015). "The trial judge is in the best position to evaluate whether a particular potential juror is able to be fair and impartial based on observation of mannerisms, demeanor, and the like." State v. Gonzales, 111 Wash. App. 276, 278, 45 P.3d 205 (2002). We review the court's failure to dismiss a biased juror for a manifest abuse of discretion. Gonzales, 111 Wash. App. at 278, 45 P.3d 205.

¶ 8 Actual bias is "the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging." RCW 4.44.170(2). However, even if a juror appears to have formed an opinion, the court need not dismiss the juror unless the court is "satisfied, from all the circumstances , that the juror cannot disregard such opinion and try the issue impartially."

RCW 4.44.190 (emphasis added); State v. Lawler, 194 Wash. App. 275, 281, 374 P.3d 278 (2016).

¶ 9 Here, Griepsma challenges the seating of five jurors for the first time on appeal. First, he claims jurors 32 and 34 said that they expected Griepsma to testify and "that they would hold his failure to testify against him." This claim arises from the following interaction during voir dire:

THE DEFENDANT: ... Will -- would anyone here be disappointed if the Defendant does not present any evidence or burden of proof?

....

NUMBER 21: Is he asking that since -- if the Defendant doesn't say anything, that we won't hold that against him? Is that the question?

THE DEFENDANT: Yes, ma'am.

NUMBER 21: Thank you.

THE DEFENDANT: Does anyone expect me to testify?

¶ 10 Jurors 32 and 34, who were ultimately selected for the jury, raised their hands to this last question. This exchange is significantly more ambiguous than Griepsma contends. Griepsma's questioning was somewhat confusing, so it is unclear from the context whether the jurors were saying that they would hold a failure to testify against him or simply whether they expected him to testify. Because the court is in the best position to determine whether a juror is biased, we defer to the court's assessment of which question the jurors were responding to and defer to its decision to place jurors 32 and 34 on the jury. Gonzales, 111 Wash. App. at 278, 45 P.3d 205.

¶ 11 Griepsma next challenges jurors 13, 22, and 30 on the basis that they were biased toward law enforcement. These jurors answered yes to the question: "[W]ould anybody give more weight to ... a police officer's testimony just because they were a police officer." They were not asked follow-up questions.

¶ 12 "A prospective juror's expression of preference in favor of police testimony does not, standing alone, conclusively demonstrate bias." Gonzales, 111 Wash. App. at 281, 45 P.3d 205. However, if this stated preference rises to a preconceived opinion or belief about the issues, then actual bias is established. See Gonzales, 111 Wash. App. at 281, 45 P.3d 205 (juror's statement that she would have a " ‘very difficult’ " time disbelieving a police officer and was not certain she could apply the presumption of innocence was clear indicator of actual bias); Irby, 187 Wash. App. at 196, 347 P.3d 1103 (a juror who said she was "predisposed to believe" police officers but would try to decide the case fairly did not demonstrate actual bias, but a juror who said she " ‘would like to say he's guilty’ " because of her predisposition in favor of the State did demonstrate actual bias.). Here, the jurors’ answers express a mere preference in favor of police testimony. Therefore, Griepsma has not established actual bias on the part of these jurors.

¶ 13 Furthermore, the entire context of voir dire supports a determination that these jurors could be impartial. Juror 13 stated, "I don't feel I could have any problem with being biased in this case." Juror 30 indicated that their brother-in-law was in law enforcement but that they could decide "based upon the evidence [they heard] and the law, not outside influences." Finally, although juror 22 indicated they would give greater weight to a police officer's testimony, they also indicated that they had had a negative experience with law enforcement that led them to believe that police officers "sometimes ... take their duties a little above and beyond." Accordingly, we conclude that the trial court did not abuse its discretion when it allowed these jurors to sit on the jury.²

Sufficiency of the Evidence for Third Degree Assault

¶ 14 Griepsma contends that the prosecution failed to prove every element of third degree assault under RCW 9A.36.031(1)(g) as charged in counts 5, 6, 8, and 9. Specifically, Griepsma contends that the State failed to prove that the victims in these incidents qualified as law enforcement officers or other employees of a law enforcement agency. Because the record establishes that the victims in these incidents were all corrections officers employed by the Skagit County Sheriff's Office, we disagree.

¶ 15 In order to " ‘ensure that the defendant's due process right in the trial court was properly observed,’ " we review the record to ensure the State provided sufficient evidence to support a conviction. State v. Berg, 181 Wash.2d 857, 867, 337 P.3d 310 (2014) (quoting State v. Phuong, 174 Wash. App. 494, 502, 299 P.3d 37 (2013) ). In doing so, we ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S....