State v. Hochhalter

• Decision Date: 02 February 2006
• Docket Number: No. 32117-3-II.,32117-3-II.
• Citation: 131 Wn. App. 506,128 P.3d 104
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. Daniel John HOCHHALTER, Appellant.

128 P.3d 104

131 Wn. App. 506

STATE OF WASHINGTON, Respondent, v. Daniel John HOCHHALTER, Appellant.

No. 32117-3-II.

Court of Appeals of Washington, Division 2.

February 2, 2006.

James David Senescu, Clark County Prosecutors Office, Vancouver, WA, for Respondent.

Lisa Elizabeth Tabbut, Attorney at Law, Longview, WA, for Appellant.

MORGAN, J.P.T.¹

¶ 1 Daniel John Hochhalter appeals convictions for felonious violation of a domestic violence order (Count I), second degree assault (Count II), and second degree unlawful possession of a firearm (Count III). He alleges that the evidence is insufficient to support Count I, that the "to convict" instruction on Count III erroneously omitted an element of the crime, and that he was denied his right to have a jury find each fact needed to support his sentence. We reverse the conviction on Count I and vacate the sentences on Counts II and III.

¶ 2 In early 2004, Hochhalter was D.D.'s ex-boyfriend. On January 29, 2003, February 11, 2004, and again on March 12, 2004, D.D. obtained domestic violence orders in which the court prohibited him from contacting her.

¶ 3 In March 2004, D.D. was living in a motor home. On the night of March 28, 2004, she parked it in a park-and-ride near I-5 and 134th Street in Vancouver. She and her current boyfriend, David Hubbard, then went to sleep inside. A friend of theirs, Ivana Johnson, went to sleep in the back seat of her own car, which was parked next to the motor home.

¶ 4 "[A]t approximately 5 A.M. or in the early morning hours"² on March 29, 2004, Johnson awoke and saw Hochhalter at the wheel of the motor home. When he saw her looking at him, he yelled and fired a pistol "in [her] direction."³ He then jumped out of the motor home and fled across the parking lot.

¶ 5 Hubbard heard the shot. He responded by diving naked out a window on the motor home's far side, running around it, and jumping into Johnson's car. Moments later, D.D. emerged from the motor home, "jumped in the front seat" of Johnson's car, and the three of them "took off."⁴

¶ 6 Johnson drove to a nearby Safeway. She "was gonna call 9-1-1,"⁵ but Hubbard insisted that she first take him to a friend's house; he had outstanding warrants and did not want to be in contact with the police. Acceding to his request, Johnson and D.D. drove him to the friend's house, which was a "good ten minutes" away.⁶ After dropping him off, they returned to the same Safeway and "got something to drink."⁷ They finally called 911, Johnson later said, either "twenty-five" or "forty-five minutes" after the incident.⁸

¶ 7 At 6:51 A.M., Deputy Skordahl was dispatched to the Safeway, where he spoke to Johnson and D.D. through the passenger window of Johnson's car. He later opined that Johnson and D.D. "were very excited, and they both really couldn't stop talking at the same time."⁹ They purported to relate what had happened—while purposefully omitting any mention of Hubbard.

¶ 8 About 8 A.M., Deputy Buckner interviewed D.D. at a fast food restaurant near the Safeway. D.D. now said that a man had been with her inside the motor home and that he had left through a window after hearing gunfire. She falsely identified the man as "David Reap."¹⁰

¶ 9 Hochhalter was arrested at 6:30 P.M. that same night. He "denied any knowledge of the incident, said he was not there, and didn't know why he was being accused of it."¹¹ He claimed that his car was with a mechanic waiting to be fixed, but officers located it later that night, parked not far from the park-and-ride.

¶ 10 The State charged Hochhalter with feloniously violating a no-contact order (Count I), assaulting Johnson in the second degree (Count II), and unlawfully possessing a firearm in the second degree (Count III). Count I alleged that Hochhalter violated a no-contact order "by having contact with and intentionally assaulting [D.D.]."¹²

¶ 11 At the ensuing jury trial, the State called Johnson, Hubbard, Skordahl and two other deputies, who testified essentially as set forth above. The defense called a ballistics expert to cast doubt on the origin of a hole the officers had observed in the motor home's windshield, and an alibi witness whose testimony the jury later rejected. The State did not call D.D., and the defense did not call Hochhalter.

¶ 12 During Skordahl's testimony, the State asked him to relate the statements that D.D. and Johnson had made while speaking to him in the parking lot of the Safeway. The defense objected on both hearsay and confrontation grounds. The trial court overruled, and Skordahl then testified to what D.D. and Johnson had told him. D.D. said:

[S]he was sleeping in her motor home, and the purpose for sleeping in the motor home and the Park & Ride, which is somewhat of an unusual occurrence, was to get away from Mr. Hochhalter. . . .

She said that she was essentially traveling with Ivana, and that Ivana was sleeping in her car next to the motor home.

. . . [S]he was awoken this morning with Mr. Hochhalter in the motor home, that he had attempted to drive her away in the motor home, and that when she had awoken he was brandishing a what she describes as a revolver firearm. . . . .

She said that she had a small rock collection in the back of the vehicle with her and that she had thrown rocks at Mr. Hochhalter. She believed that she'd struck him on the head. . . .

She said that Mr. Hochhalter had, as I indicated, brandished the firearm and what she believed was fired two shots from the revolver.

She wasn't exactly sure . . . where the rounds had gone, but that he had fired two shots, anyway, and that he had threatened verbally to kill her, kill himself, that he had pointed the firearm at her and at himself as well.

She said . . . that Mr. Hochhalter then exited the motor home and that was the last she had seen him.[¹³]

Johnson related what she had observed, already described above, from her vantage point outside the motor home. Neither D.D. nor Johnson mentioned that Hubbard had been present or that they had driven him to a friend's house before calling 911.

¶ 13 At the end of the evidence, the trial court instructed the jury on what it had to find in order to convict on Count III, unlawful possession of a firearm. The court said in Instruction 18 that "[a] person commits the crime of unlawful possession of a firearm in the second degree when he has a firearm in his or her possession or control and he has previously been convicted of a felony."¹⁴ In Instruction 19, the court said:

To convict the defendant of the crime of unlawful possession of a firearm in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about March 29, 2004, the defendant had a firearm in his possession or control;

(2) That the defendant had previously been convicted of a felony; and

(3) That the possession or control of the firearm occurred in Clark County, State of Washington.[¹⁵]

The court did not require the jury to address the defendant's knowledge, but no one objected.

¶ 14 The jury convicted Hochhalter on all three counts. It was not asked to find, and thus it did not find, whether Hochhalter was on community placement on March 29, 2004.

¶ 15 On July 14, 2004, the trial court convened a sentencing hearing. Although the jury had not found that Hochhalter was on community placement on March 29, 2004, the State asked the court to find that fact and add one point to the offender score.¹⁶ Although defense counsel responded, "I don't disagree," nothing in the record shows that Hochhalter knew of or intentionally relinquished his right, if any, to have a jury decide that fact. The trial court granted the State's request, thereby increasing the top of the "standard range" on Count I from 54 months to 60 months, the top of the "standard range" on Count II from 43 months to 57 months, and the top of the "standard range" on Count III from 29 months to 43 months. Utilizing these increases, the trial court then imposed concurrent sentences of 60 months on Count I, 57 months on Count II, and 43 months on Count III.

I.

¶ 16 On appeal, Hochhalter argues that the evidence is insufficient to support Count I. He reasons that D.D.'s statements to Skordahl "were improperly admitted as excited utterances,"¹⁷ and that without them, the evidence is insufficient to support a finding that he assaulted D.D. We begin by examining his assertion that D.D.'s statements to Skordahl "were improperly admitted as excited utterances."

¶ 17 Although ER 801(c) generally excludes out-of-court statements offered to prove the truth of the matter asserted,¹⁸ ER 803(a)(2) excepts "[a] statement relating to a startling event or condition made while . . . under the stress of excitement caused by the event or condition." According to the advisory committee that promulgated Federal Rule of Evidence 803(2), from which Washington's ER 803(a)(2) was copied, the underlying theory "is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication."¹⁹ Hence, "the `key determination is whether the statement was made while the declarant was still under the influence of the event to the extent that the statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.'"²⁰

¶ 18 In State v. Brown,²¹ the Washington Supreme Court addressed these principles. T.G. was in her apartment with her boyfriend when Brown came to her door and asked her to perform an act of prostitution. She voluntarily accompanied him to his apartment where, according to her later testimony, she was raped by him and three other men. She escaped out a window, returned to her own apartment, and discussed the matter with her boyfriend. He initially suggested that she call the police, but she doubted that the police would believe her. He then "suggested that she think of something."²² An...