State v. Grimes

• Decision Date: 02 December 2011
• Docket Number: No. 40392–7–II.,40392–7–II.
• Citation: 165 Wash.App. 172,267 P.3d 454
• Parties: STATE of Washington, Respondent, v. Mark David GRIMES, Appellant.
• Court: Washington Court of Appeals

165 Wash.App. 172

267 P.3d 454

STATE of Washington, Respondent,

v.Mark David GRIMES, Appellant.

No. 40392–7–II.

Court of Appeals of Washington, Division 2.

Dec. 2, 2011.

Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Appellant.

John C. Skinder, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

PART PUBLISHED OPINION

VAN DEREN, J.

[165 Wash.App. 175] ¶ 1 Mark David Grimes appeals a sentence enhancement imposed for conviction of delivering methamphetamine within 1,000 feet of a school bus route stop and his bail jumping conviction. He argues that we should vacate the enhancement portion of his sentence based on a Bashaw¹ instructional error, that the evidence is insufficient to support his bail jumping conviction, and that his trial counsel rendered ineffective assistance. ² The State responds that Grimes cannot challenge the Bashaw instruction for the first time on appeal because he fails to establish that it was a manifest error of constitutional magnitude. We hold that Grimes may not raise the issue of instructional error under Bashaw for the first time on appeal under the facts of this case, that the evidence was sufficient to support his bail jumping conviction, and that his counsel was not ineffective. We affirm.

FACTS

¶ 2 In the early morning of June 27, 2009, City of Lacey police used informant Michael Santos to conduct a controlled buy of methamphetamine from Grimes, in a Safeway store parking lot. Grimes arrived in a car driven by his girl friend, Johanna Crandell. When Santos approached the passenger side of the car, where Grimes was seated, Grimes handed Santos a plastic sandwich bag containing methamphetamine and Santos handed Grimes $100 of “prerecorded buy money.” Report of Proceedings (RP) at 92.

[165 Wash.App. 176] ¶ 3 Santos walked away from the car and pulled up his sweatshirt hood, signaling the police that the drug buy had occurred. Police immediately stopped the car, arrested its occupants, and recovered the methamphetamine and purchase money. After waiving his Miranda³ rights, Grimes talked with police, confessed that he had delivered methamphetamine to Santos, and indicated that he would work with police and that “he was willing to order up from his supplier to avoid going to jail.” RP at 221.

¶ 4 The State charged Grimes by first amended information with unlawful delivery of methamphetamine within 1,000 feet of a school bus route stop. On October 14, 2009, the trial court granted Grimes's motion for a continuance. Grimes signed an agreed order of trial continuance and agreed to appear at a December 2 status conference hearing and at trial scheduled for December 7. When Grimes did not appear in court for the scheduled status conference on December 2, the trial court issued a bench warrant for his arrest. Following his arrest on the warrant, the State filed a second amended information charging him with unlawful delivery of methamphetamine within 1,000 feet of a school bus route stop (count 1) and bail jumping (count 2).

¶ 5 When the trial finally commenced during February 2010, Santos testified that he had known Grimes for approximately one year before the June 27, 2009, drug delivery and that their relationship was primarily based on using methamphetamine together. Santos identified Grimes in open court as the person who had sold him the methamphetamine on June 27; Santos also identified Grimes using Grimes's booking photograph. Lacey Police Department Detective David Miller also identified Grimes in open court as the individual that police had arrested following Santos's controlled buy on June 27.

¶ 6 Crandell testified that, after she was subpoenaed to testify in Grimes's trial, she had left Washington and travelled to Arizona with Grimes. Crandell identified Grimes in open court, testifying that she had been in a relationship with him for the past four years and wanted to continue that relationship. She further testified that on June 27, 2009, she had driven Grimes to the Safeway parking lot to collect money that Santos owed her; ⁴ that Santos gave her $100; and, for the first time, she claimed that she gave Santos a bag of methamphetamine that she had found among the items in her car. Crandell also explained that she had pleaded guilty to conspiracy to deliver methamphetamine based on the June 27 delivery to Santos and that her court-imposed conditions included that she not communicate with Grimes.

¶ 7 Evidence related to the sale of drugs within 1,000 feet of two school bus route stops included the testimony of North Thurston Public Schools Transportation Director, Eric Weight, who testified that there were two separate school bus route stops within 1,000 feet of the Safeway store where the June 27, 2009, methamphetamine delivery took place.

¶ 8 To prove the bail jumping charge, the State called a Thurston County senior deputy prosecutor, David Bruneau, to introduce the October 14, 2009, agreed order continuing Grimes's trial on the methamphetamine delivery charge. Bruneau directed the jury to the language on the order that read, “This order is valid only if personally signed by the defendant.” Ex. 11 (capitalization omitted). The order was signed by Grimes, his defense counsel, the deputy prosecutor, and the trial court judge. In signing the agreed order, Grimes agreed to appear in court on December 2 for a status conference hearing and to appear for trial on December 7. Just above the date and signature lines, the order stated in capitalized, bold, italicized lettering that failure to appear could result in criminal prosecution for bail jumping. Bruneau testified that he was in court on December 2, 2009, that Grimes did not appear at the status hearing as ordered, that as a result the trial court issued a bench warrant for Grimes's arrest, and that Grimes was arrested for bail jumping on December 30, 2009.

¶ 9 Following testimony, the trial court's jury instruction 16 explained the special verdict form related to the school zone enhancement on the methamphetamine delivery charge:

Because this is a criminal case, all twelve of you must agree in order to answer the special verdict form. In order to answer the special verdict form “yes”, you must unanimously be satisfied beyond a reasonable doubt that “yes” is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer “no”.

Clerk's Papers (CP) at 54. Grimes's defense counsel did not object to this instruction or to any other of the trial court's jury instructions.

¶ 10 The jury convicted Grimes of both crimes as charged and found by special verdict that he had been within 1,000 feet of a school bus route stop when the methamphetamine delivery occurred. Grimes appeals the school bus route stop sentence enhancement on his delivery conviction and his bail jumping conviction.

ANALYSIS

Special Verdict Instruction

¶ 11 Citing Bashaw, Grimes argues that we should reverse his 24 month sentence enhancement because the trial court erred in instructing the jury that it must be unanimous to return a “yes” or “no” answer on a special verdict finding about whether he delivered a controlled substance within 1,000 feet of a school bus route stop. We disagree that Grimes's sentence enhancement must be reversed.

¶ 12 Grimes contends that the following instruction is reversible error under Bashaw:

Because this is a criminal case, all twelve of you must agree in order to answer the special verdict form. In order to answer the special verdict form “yes”, you must unanimously be satisfied beyond a reasonable doubt that “yes” is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer “no”.

CP at 54 (emphasis added); 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 50:60, at 986 (3d ed. 2008) (WPIC).⁵

¶ 13 The State responds that (1) Grimes cannot raise this issue for the first time on appeal because he failed to object to the instruction at trial and (2) the asserted error does not fall within the exception to the general rule requiring preservation of issues for appeal because this instruction was not a manifest constitutional error. We agree with the State.

A. Manifest Error Affecting a Constitutional Right

¶ 14 RAP 2.5(a)(3) provides, “The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed error[ ] for the first time in the appellate court: ... manifest error affecting a constitutional right.” State v. Powell, 166 Wash.2d 73, 82, 206 P.3d 321 (2009). CrR 6.15(c) requires timely and well stated objections to jury instructions. State v. Scott, 110 Wash.2d 682, 685–86, 757 P.2d 492 (1988). The policy underlying the preservation rule is to promote “efficient use of judicial resources”; therefore, “[this] court[ ] will not sanction a party's failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial.” Scott, 110 Wash.2d at 685, 757 P.2d 492.

[165 Wash.App. 180] ¶ 15 Referring to RAP 2.5(a), our Supreme Court recently noted:

Generally, an appellate court may refuse to entertain a claim of error not raised before the trial court. RAP 2.5(a). An exception exists for a claim of manifest error affecting a constitutional right. [RAP 2.5(a).] In order to benefit from this exception, “the [defendant] must identify a constitutional error and show how the alleged error actually affected the [defendant]'s rights at trial.” A constitutional error is manifest if the appellant can show actual prejudice, i.e., there must be a “plausible showing by the [defendant] that the asserted error had practical and identifiable consequences in the trial of the case.” If an error of constitutional magnitude is manifest, it may nevertheless be harmless.

State v. Gordon, 172 Wash.2d 671, 676, 260 P.3d 884 (2011) (some citations omitted) ...