State v. Hartzell, 63816-5-I.

Decision Date16 November 2009
Docket NumberNo. 63816-5-I.,63816-5-I.
Citation153 Wn. App. 137,221 P.3d 928
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. Charles HARTZELL, Appellant. State of Washington, Respondent, v. Jeremy Tieskotter, Appellant.

Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Charles Hartzell.

Patricia Anne Pethick, Attorney at Law, Tacoma, WA, for Jeremy Tieskotter.

Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

BECKER, J.

¶ 1 Charles Hartzell and Jeremy Tieskotter were convicted of armed assault and unlawful possession of a firearm for shooting into an apartment occupied by a woman and her daughter. Investigators were able to link Hartzell and Tieskotter to the crime by establishing that the guns they possessed in two separate incidents were the same guns used to shoot into the apartment. Upon review of their assignments of error, we conclude that the evidence of the two separate incidents was properly admitted under ER 404(b); the trial court's limiting instruction was not a comment on the evidence; and appellant Hartzell opened the door to hearsay when he himself elicited an incomplete and misleading hearsay version of events from one of the detectives. And although the special verdict returned by the jury found only that the appellants were armed with deadly weapons, the court's imposition of a firearm sentence enhancement is not a reversible error because the State charged a firearm enhancement and there was no evidence of any weapons other than the guns used in the shooting. We affirm.

¶ 2 According to testimony at trial, Michael Vernam was awakened by gunshots outside his home on Trailblazer Road in Thurston County early in the morning of April 7, 2007. He looked outside and saw someone shooting from what he thought was the sunroof of a red car. The car moved as shots were fired, so Vernam concluded that more than one person was in the car.

¶ 3 The gunshots also woke Kimberly Hoage, but she thought someone was banging on the wall outside her apartment. Later in the day, however, Hoage discovered bullet holes in the headboard of the bed where she and her daughter had been sleeping. Sheriff's deputies found a bullet and bullet fragments in the apartment and shell casings or cartridges from .9 mm and .357 mm caliber bullets outside.

¶ 4 Four days after the shooting at Hoage's apartment in Thurston County, police officers in Pierce County interviewed Jeremy Tieskotter in response to a report of him firing a .9 mm semi-automatic handgun in Lakewood. Tieskotter admitted firing the gun. Ballistics analysis showed that the bullets fired into Hoage's apartment had come from the same .9 mm weapon.

¶ 5 The next month at about 10 o'clock in the evening Kitsap County Sheriff's Deputy Daniel Twomey was dispatched to a house in a rural area of Kitsap County in response to a call of a man with a gun. The suspect had been described as a "skinhead." While the officer was waiting outside the house for backup to arrive, a RAV4 compact SUV pulled into the driveway and a man later identified as Hartzell got out. Hartzell gave a false name and claimed to be looking for his girlfriend, Sarah Dodge, who he said had been given a pill "by a guy named Randy," was acting "crazy," and had gotten out of the car somewhere in the area.1 When backup arrived, Deputy Twomey went inside where he found Sarah Dodge. After interviewing her, he took Hartzell into custody, and then discovered there was a bullet hole through the passenger door of the RAV4. Inside the vehicle, Detective Twomey found a .357 SIG cartridge on the front passenger-side floor, several boxes of .357 SIG ammunition in the rear, and a .357 SIG bullet in the seam of Hartzell's jacket.2

¶ 6 A K-9 officer was called to look for the gun that shot the bullet through the passenger door of the RAV4. The dog jumped up on the door, sniffed, then went south on the shoulder of Sidney Road. Less than 100 yards from where the RAV4 was parked, the dog found a .357 semi-automatic handgun, several rounds short of being fully loaded. A ballistics expert later determined that this was the same gun that had fired .357 bullets into Hoage's apartment in Thurston County.

¶ 7 Officers learned that Tieskotter and Hartzell were good friends. They also found out that Hartzell and his girlfriend, Sarah Dodge, had been staying with Hoage days before the shooting at Hoage's apartment. Hartzell and Dodge were forging checks, and Hoage had threatened to call the police if they did not leave. After he and Dodge left, Hartzell called Hoage to demand that she return his laptop. Hoage ignored the message because she had seen Hartzell leave with the laptop. But after the shooting she became fearful because she received a threatening text message from Hartzell that led her to believe he was the one who shot at her apartment.

¶ 8 Hartzell and Tieskotter were each charged in Thurston County Superior Court with assault in the second degree while armed with a deadly weapon (a firearm) (Count 1), drive-by shooting (Count 2), and unlawful possession of a firearm in the first degree (Count 3). The two cases were joined for trial. Both defendants were convicted on Counts 1 and 3. The jury returned special verdict forms finding that each defendant was armed with a deadly weapon during the assaults. The court imposed 36-month firearm sentence enhancements. The appeals of Hartzell and Tieskotter have been consolidated.

SEARCH ISSUE

¶ 9 Hartzell argues that the trial court erred when it admitted evidence of the gun recovered in Kitsap County. He contends the dog sniffing through the open window of the RAV4 was a search requiring a warrant under article I, § 7 of the Washington Constitution.

¶ 10 Const. art. 1, § 7 protects a person's home and his private affairs from warrantless searches: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Article I, § 7 is not implicated if no search occurs. State v. Young, 123 Wash.2d 173, 181, 867 P.2d 593 (1994). To determine if there was a search, the court asks whether the State unreasonably intruded into a person's "private affairs." Young, 123 Wash.2d at 181, 867 P.2d 593. If it did, a warrant was required unless the circumstances fell into one of the recognized exceptions to the warrant requirement. Young, 123 Wash.2d at 181, 867 P.2d 593. None of those exceptions is present in this case.

¶ 11 The inquiry whether the State unreasonably intruded into a person's private affairs focuses on the privacy interests that "citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984). In general, a search does not occur if a law enforcement officer is able to detect something using one or more of his senses from a non-intrusive vantage point. State v. Seagull, 95 Wash.2d 898, 901, 632 P.2d 44 (1981). Such observation does not violate Washington's constitution because something voluntarily exposed to the general public and observable without an enhancement device from a lawful vantage point is not considered part of a person's private affairs. Young, 123 Wash.2d at 182, 867 P.2d 593. An observation may constitute a search, however, if the officer substantially and unreasonably departs from a lawful vantage point or uses a particularly intrusive method of viewing. Young, 123 Wash.2d at 182-83, 867 P.2d 593. What is reasonable is determined from the facts and circumstances of each case. Seagull, 95 Wash.2d at 903, 632 P.2d 44.

¶ 12 Whether or not a canine sniff is a search depends on the circumstances of the sniff itself. State v. Boyce, 44 Wash.App. 724, 729, 723 P.2d 28 (1986). In Boyce, this court held that as long as the canine "sniffs the object from an area where the defendant does not have a reasonable expectation of privacy, and the canine sniff itself is minimally intrusive, then no search has occurred." Boyce, 44 Wash.App. at 730, 723 P.2d 28.

¶ 13 The trial court correctly concluded that Hartzell did not have a reasonable expectation of privacy in the air coming from the open window of the vehicle. Hartzell was not in the SUV when the dog sniffed from a lawful vantage point outside the vehicle. The sniff was only minimally intrusive. The trial court did not err when it denied Hartzell's motion to suppress the evidence.

ER 404(b)

¶ 14 Hartzell and Tieskotter contend the evidence connecting Hartzell to the gun found in Kitsap County and Tieskotter to the gun fired in Pierce County was improperly admitted because it was used to show they had a propensity to commit gun crimes.

¶ 15 Washington's ER 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This court reviews decisions to admit evidence under ER 404(b) for abuse of discretion. State v. Lough, 125 Wash.2d 847, 863, 889 P.2d 487 (1995). A court abuses its discretion if it is exercised on untenable grounds or for untenable reasons. State v. Thang, 145 Wash.2d 630, 642, 41 P.3d 1159 (2002).

¶ 16 The test for admitting evidence under ER 404(b) is well-established. To admit evidence of other wrongs, the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect. Lough, 125 Wash.2d at 853, 889 P.2d 487.

¶ 17 As to the first prong, Hartzell argues that the evidence of the Kitsap County incident was insufficient to establish by a preponderance that he...

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