State v. Mortensen
| Decision Date | 26 September 2017 |
| Docket Number | No. 48518-4-II,48518-4-II |
| Parties | STATE OF WASHINGTON, Respondent, v. ANDREW JENS PETER MORTENSEN, Appellant. |
| Court | Washington Court of Appeals |
MAXA, A.C.J. - Andrew Mortensen appeals his convictions of two counts of second degree assault, one involving assault with a deadly weapon. The convictions arose from an incident in which Mortensen fought with one man while Mortensen's friend fought with another man. The fighting stopped when Mortensen used his gun to hit the man he was fighting and to compel the other man to let go of his friend.
We hold that (1) the trial court erred in refusing to amend the self-defense instructions to incorporate the defense of another, but this error was harmless; (2) the trial court did not err in excluding a defense witness from being recalled when she remained in the courtroom after testifying in violation of the trial court's ER 615 witness exclusion order; (3) defense counsel provided ineffective assistance by not initially proposing a defense of another instruction and by allowing the defense witness to remain in the courtroom after testifying, but Mortensen does not show prejudice; (4) the trial court's reasonable doubt instruction was not constitutionally deficient; (5) as the State concedes, Mortensen's two assault convictions violate double jeopardy; (6) the trial court properly imposed the criminal filing fee, which is a mandatory legal financial obligation (LFO) that could be imposed without considering Mortensen's ability to pay; and (7) as the State concedes, a scrivener's error in the judgment and sentence must be corrected on remand.
Accordingly, we affirm Mortensen's conviction of second degree assault with a deadly weapon (count two), vacate Mortensen's other conviction for second degree assault (count one) and the sentence relating to that conviction, and remand for correction of the scrivener's error in the judgment and sentence.
On the night of July 5, 2014, Mortensen, his girlfriend Aisha Nottingham, Aisha's1 brother Michael Nottingham, and others were camping on the bank of a fishing channel along the Columbia River. The group was playing music at a high volume.
Scott Burkett, Joshua McDonald, and Bianca Lujan were across the channel. McDonald yelled to Mortensen's group to turn their music down. When Mortensen's group refused, the two groups began yelling insults and profanities across the water at each other. Someone in Mortensen's group eventually yelled that they could come over there and that they had a gun.
Mortensen and Michael Nottingham drove a boat across the channel, landing in front of a fire that Burkett, McDonald, and Lujan had made. The two groups started fighting - Nottingham with McDonald and Mortensen with Burkett. Eventually, Mortensen displayed a gun that he had with him and the fighting stopped. Mortensen and Nottingham then went back to their camp.
Mortensen was charged with three counts of second degree assault and three counts of harassment.2 The first assault charge (count one) alleged that Mortensen inflicted substantial bodily harm on Burkett under RCW 9A.36.021(1)(a). The second assault charge (count two) alleged that Mortensen assaulted Burkett with a deadly weapon under RCW 9A.36.021(1)(c) and included a firearm enhancement under RCW 9.94A.825. The third assault charge (count three) alleged that Mortensen assaulted McDonald with a deadly weapon under RCW 9A.36.021(1)(c), and also included a firearm enhancement.
Burkett and McDonald testified at trial that Mortensen and Nottingham started the fight by charging at them as soon the boat landed. Burkett testified that he was able to put Mortensen in a choke hold on the ground, but he then heard the sound of a gun cocking and saw that Mortensen had a gun. Burkett let go and put his hands up while he backed away. Mortensen struck Burkett in the face and then in the head with the gun. Burkett yelled at McDonald to stop fighting because Mortensen had a gun. Burkett and McDonald both testified that Mortensen walked over to McDonald, pointed the gun at him, and said, "Do you want to die?" 2 Report of Proceedings (RP) at 186.
In contrast, Mortensen and Nottingham testified that they had attempted to avoid a fight. They testified that they crossed the river not for a confrontation, but because Nottingham needed to get to his car on the other side. Mortensen testified that because he did not want a fight, when the boat approached the other group's area he shouted out for the other people to stay where they were and not to come near.
Nottingham testified that when he got out of the boat, something hit him in the head, causing his eyebrow to split open. He stated that he saw someone about 10 feet away. Nottingham assumed that the person had hit him and rushed at the person, trying to detain him.
Mortensen testified that he was still on the boat when he saw a very large person dragging Nottingham away. Mortensen jumped out of the boat and attempted to run toward Nottingham, but heard someone behind him. He thought that whatever was happening to Nottingham was going to happen to him. He turned around and swung, connecting with Burkett's shoulder. Mortensen again tried to help Nottingham, but Burkett grabbed him from behind and pulled him backwards.
Mortensen testified that during the ensuing fight, his gun fell out of his waistband. Both he and Burkett reached for the gun but Mortensen was able to get a better grip. Mortensen swung the gun and connected with Burkett's face. Mortensen then yelled for McDonald to let Nottingham go. Nottingham heard Mortensen say 4 RP at 851. Mortensen and Nottingham then went back to the boat and left for the other side.
Mortensen stated that when he and Nottingham got back to their camp, the group talked about making up a story about what had happened. Mortensen admitted that he told a fabricated story to the police. He told one officer, David Krebs, that Burkett and McDonald had come across the channel on a raft and started a fight. Mortensen testified that he told the story because Officer Krebs and another officer had threatened him, saying that Mortensen would go to jail and his children would be taken away from him if he had gone to the other side of the river.
Mortensen attempted to elicit testimony from Aisha about Officer Krebs's alleged threat. Aisha was at Mortensen's campsite and apparently heard the threat, but she did not know who made it. The State objected on the grounds that it would be difficult to offer rebuttal testimony because Aisha did not know who made the statement. The trial court initially sustained the objection. Aisha completed her testimony without testifying about the threat.
The parties revisited the trial court's ruling during Mortensen's testimony. The court determined that it would allow testimony on the threat. Immediately after that ruling, the court noted that Aisha was in the courtroom, which would prevent her from being recalled under the court's ER 615 witness exclusion order. Defense counsel stated that he did not expect to recall Aisha. But he later sought to recall her and have her corroborate Mortensen's testimony. The court denied permission, citing the ER 615 order requested by both parties that excluded testifying witnesses from the courtroom.
Mortensen intended to submit a jury instruction on defense of another, consistent with his testimony about attempting to help Nottingham. However, his proposed instructions and the instructions given by the trial court for both assault and harassment addressed only self-defense. The court also gave a first aggressor instruction that did reference defense of another.
Immediately after the court finished reading the jury instructions but before closing argument, defense counsel informed the court that the self-defense instructions erroneously did not include a reference to the defense of another. Counsel acknowledged that he had drafted the instructions and had only himself to blame. But he requested that the court add language to the self-defense instructions stating that a person can use force to lawfully aid a person who he reasonably believes is about to be injured.
The trial court denied the request, stating, 10 RP at 1425. However, the court agreed that defense counsel could argue during closing argument that defense of another applied and that the State could not argue that defense of another did not apply.
The court also provided a standard instruction on reasonable doubt. The instruction included the statement, "A reasonable doubt is one for which a reason exists." Clerk's Papers (CP) at 142.
The jury found Mortensen guilty on counts one and two, both for second degree assault of Burkett, and found that he was armed with a firearm on count two. The jury found Mortensen not guilty on the remaining counts, including count three for assaulting McDonald.
At sentencing, the State conceded that the two assault convictions constituted the same criminal conduct for purposes of calculating Mortensen's offender score. The trial court sentenced Mortensen at the top of the standard range, nine months for each count to run concurrently plus 36 months for the firearm enhancement. The court also imposed as an LFO a criminal filing fee of $200. The judgment and sentence stated that Mortensen was found guilty based on a guilty plea rather than on a jury verdict.
Mortensen appeals his convictions and the court's imposition of the criminal filing fee LFO.
Mortensen argues that the trial court erred by refusing his request, made after the court had given the jury instructions but before closing arguments, to amend the self-defense...
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