State v. O'NEAL

Decision Date15 March 2005
Docket Number No. 29523-7-II., No. 29150-9-II, No. 29154-1-II
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. Harry William O'NEAL, Jesse Jack O'Neal, and Gregory William O'Neal, Appellants.

Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA, Peter B. Tiller, The Tiller Law Firm, Centralia, WA, Patricia Anne Pethick, Attorney at Law, Tacoma, WA, Stephanie C Cunningham, Attorney at Law, Seattle, WA, Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Appellants.

Steven Curtis Sherman, Thurston County Pros Ofc., Olympia, WA, for Respondent.

HOUGHTON, J.

¶ 1 In their consolidated matter, William "Harry" O'Neal, Jesse O'Neal, and Gregory O'Neal appeal convictions of manufacturing methamphetamine. Greg1 also appeals his convictions of manufacturing marijuana, first degree unlawful possession of a firearm, and possession of a machine gun. The trial court imposed firearm enhancements on both of Greg's manufacturing counts and a firearm enhancement on Harry's and Jesse's methamphetamine manufacturing counts.

¶ 2 The O'Neals raise multiple assignments of error regarding their convictions and sentences. Because the charging document lacked an essential element, we reverse, without prejudice, Greg's conviction of possession of a machine gun. And because the trial court miscalculated the length of the firearm enhancement on Greg's marijuana count, we reverse and remand that enhancement for resentencing. Otherwise, we affirm.

FACTS2

¶ 3 On December 4, 2001, the Thurston County SWAT team and other agencies executed a search warrant at a mobile home owned by Michelle O'Neal. Michelle is Harry's ex-wife and Jesse and Greg's mother. At the time of the search, Greg lived in the home with his friend, Jason Shero. Testimony differed as to whether Jesse and Harry lived in the mobile home. But Shero testified that he and the O'Neal men lived together in the mobile home.

¶ 4 Officers obtained the search warrant based on information from two informants, one named and one confidential. When the warrant was executed, Jesse, Harry, and Greg were in the mobile home, but Shero was not.

¶ 5 During the search, Detective Steve Hamilton found a loaded AR-15 with a chambered round in the open closet of the master bedroom. In a second bedroom, officers located a "suspected marijuana smoking device" and found a knife and a semiautomatic pistol under the mattress. I Report of Proceedings (RP) at 44. Officers also discovered a gun safe in the second bedroom. A note taped to the safe was addressed to Shero and signed "G." I RP at 49. The safe contained rifles, scopes, and half rifles.

¶ 6 In the laundry room, officers also found a locked gun safe containing "a large number" of weapons, ammunition, and related items. I RP at 60. Finally, the officers found instructions for making methamphetamine.

¶ 7 On January 17, 2002, the State filed a third amended information charging Jesse with one count of manufacturing methamphetamine with a firearm enhancement and one count of manufacturing marijuana.

¶ 8 On March 4, 2002, the State filed a third amended information charging Harry with one count of manufacturing methamphetamine and one count of manufacturing marijuana, each with firearm enhancements.

¶ 9 After several amendments, on July 8, 2002, the State charged Greg with one count of manufacturing methamphetamine with a firearm enhancement, one count of manufacturing marijuana with a firearm enhancement, twenty counts of first degree unlawful firearm possession, and one count of machine gun possession.

¶ 10 Greg moved to continue his February 11, 2002 trial date. Harry opposed the motion, arguing that delaying the trial would violate his speedy trial rights. The court granted Greg's motion, citing "judicial efficiency and economy" and the "very strong principle that people ... should be tried together because of potential for inconsistent decisions." RP (1/18/02) at 18.

¶ 11 Greg sought discovery about the confidential and named informants, which the State declined to provide. Greg moved to compel discovery and requested a Franks3 hearing to determine the search warrant's validity. The court declined to hold a Franks hearing4 or to compel discovery.

¶ 12 After pleading guilty to manufacturing methamphetamine, Shero testified at the O'Neals' trial. He said that the mobile home contained both a methamphetamine manufacturing laboratory and a marijuana growing operation. He further testified that he and the O'Neals knew about these activities.

¶ 13 Shero also testified that he observed Greg make methamphetamine while Harry "[stood] watch." II RP at 302. Shero initially said that Jesse "really wasn't there," but indicated that Jesse lived in the mobile home at the time Greg was manufacturing methamphetamine. II RP at 303. After further questioning, Shero admitted that Jesse "pour[ed] lye into a reaction." II RP at 303. Although Shero claimed to own three of the guns, he explained that the AR-15 found in his room belonged to Greg. He also said that Jesse had "a couple shotguns" in one of the safes and that Harry owned a .45 caliber weapon.5 II RP at 305.

¶ 14 On cross-examination, Shero admitted that he initially implicated only Greg during his interview with Hamilton. Once the detective told him that placing all the blame on Greg "was not a good plan," Shero said that Jesse and Harry were involved. II RP at 337.

¶ 15 Defense counsel further questioned Shero about his interview with Hamilton:

Q: Was it your impression that Detective Hamilton didn't believe you were telling the truth in the interview?
A: Yes.
Q: Did he suggest to you why he didn't believe you were telling the truth?
....
A: Not that I can recall.
....
Q: After he suggested to you that you weren't telling the truth, did you then tell him something different?
A: Yes.
Q: Why would you tell him something different after you suggested he didn't believe you?
A: Because I wanted — I didn't — I don't know.

II RP at 355-56.

¶ 16 In response, the State recalled Hamilton and inquired further about his interview of Shero:

Q: Was there a certain point in that interview where you shared with Mr. Shero your view that he was not providing all the facts as to some of the people that were suspected to be involved in this matter?
A: Yes.
Q: ... [D]id he make statements which were inconsistent with what he had said earlier after you had that conversation with him?
A: No, he didn't....
Q: And what was it that you were — that you were bringing to his attention when you made this comment?
A: I had previous information which led me to believe that there was [sic] other co-conspirators involved in the crimes.[6]

III RP at 405.

¶ 17 After the State rested,7 Harry and Jesse moved to dismiss their marijuana manufacturing charges based on insufficiency of the evidence.8 The trial court granted the motions.

¶ 18 The jury convicted Greg of all counts, finding that he was armed with a firearm during the commission of the two manufacturing counts. The jury convicted Jesse and Harry of manufacturing methamphetamine and found that either they or their accomplices were armed with a firearm.

¶ 19 At sentencing, the trial court based its calculation on Greg's most serious offense, that being an offender score of 9 and a seriousness level of X.9 Given these factors, Greg's standard range was 149 to 198 months. The court then imposed consecutive 36-month firearm enhancements on the methamphetamine count, resulting in a total standard range of 221 to 240 months. Under the doubling statute,10 the court determined that the maximum sentence for the methamphetamine count was 240 months.11 It sentenced Greg to 221 months, a term within his standard range.

¶ 20 On October 23, 2002, the State moved to amend Greg's judgment and sentence, arguing that the trial court improperly calculated the firearm enhancement. The State asserted that when Greg's statutory maximum sentence on the methamphetamine charge became 20 years under the doubling statute, his firearm enhancement on that count increased to 60 months, the length for 20-year statutory maximum crimes. The court amended the judgment and sentence, imposing a 240-month standard range sentence with 60- and 36-month firearm enhancements on the methamphetamine count.

¶ 21 Harry, Jesse, and Greg appeal their convictions and sentences on multiple grounds.

ANALYSIS
The Trial

Issues Common to all Appellants

Detective Hamilton's Testimony Regarding Shero

¶ 22 In their Statements of Additional Grounds (SAG),12 the O'Neals contend that the trial court improperly allowed Hamilton to testify as to Shero's veracity.13 We hold that the trial court acted within its discretion.

¶ 23 We review a trial court's decision regarding the scope of redirect examination for abuse of discretion. State v. Gallagher, 112 Wash.App. 601, 609, 51 P.3d 100 (2002), review denied, 148 Wash.2d 1023, 66 P.3d 638 (2003). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. Gallagher, 112 Wash.App. at 609, 51 P.3d 100.

¶ 24 A witness may not give an opinion as to another witness's credibility. State v. Casteneda-Perez, 61 Wash.App. 354, 360, 810 P.2d 74, review denied, 118 Wash.2d 1007, 822 P.2d 287 (1991). Credibility determinations lie within the sole province of the fact finder. State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990).

¶ 25 Here, the O'Neals opened the door to Hamilton's testimony through their cross-examination of Shero; the cross-examination placed Hamilton's opinion of Shero's veracity at issue.14 See Gallagher, 112 Wash.App. at 609-10,

51 P.3d 100 (when defense counsel cross-examined a detective about the lack of drug paraphernalia found at the scene, the trial court properly allowed the State to introduce evidence of syringes found in the home, evidence that was initially excluded by motion in limine). This entitled the State to respond. As the...

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