State v. Nulf, No. 36276-7-II (Wash. App. 9/17/2008)
| Decision Date | 17 September 2008 |
| Docket Number | No. 36276-7-II,36276-7-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. SHANE H. NULF, UNPUBLISHED OPINION Appellant. |
Shane H. Nulf appeals his conviction for assault in violation of a no-contact order for domestic violence. We affirm the conviction, but we remand for correction of the judgment and sentence to clarify that the duration of confinement plus the term of community custody shall not exceed the five-year statutory maximum.
On February 9, 2007, during daylight hours, a car pulled into a driveway just across from Barrie Christman's house.1 Christman heard someone yelling for help from the unfamiliar car. Then from about 150 feet away, Christman saw someone striking the passenger of the car. As Christman proceeded toward the car, the driver "gunned the motor like they were going to turn around and come towards [Christman]." RP (Mar. 22, 2007) at 20. Christman pointed at him to stop; the driver put the car in reverse and proceeded to back up the driveway. The driver then turned around and started to drive away. Before the driver sped off, the passenger got out and ran away from the car.
The passenger, Rebecca Moose, was bloody, frantic, hysterical and appeared to be "pretty badly hurt." RP (Mar. 22, 2007) at 21. Christman called 911 and remained with Moose until the ambulance arrived. When he spoke to 911 dispatch, Christman provided the license plate number, a description of the vehicle, and a description of the events he witnessed. Grays Harbor County law enforcement officers also arrived on the scene. Moose told the officers that the registered owner of the car was the person who assaulted her.
Based on Moose's statement and Christman's description of the car and license plate number, Grays Harbor County sheriff, Lieutenant David Porter, stopped Nulf on the night of the incident. Nulf was driving the car fitting Christman's description when they stopped him. Deputy Tracy Gay was also on the scene and immediately advised Nulf that he was under arrest for the assault. As Deputy Gay was handcuffing him, Nulf said RP (Mar. 22, 2007) at 57-58.
The State charged Nulf with one count of assault in violation of a no-contact order—domestic violence, under RCW 26.50.110 and RCW 10.99.020.2 The case proceeded to trial, but Moose did not testify. The jury convicted Nulf as charged. The trial court sentenced Nulf to 54 months' confinement, the high end of the standard sentencing range.3
Nulf first contends that there was insufficient evidence to support his conviction. He argues that the State did not meet its burden of proving that the assault in violation of the no-contact order occurred in Grays Harbor County.
In a criminal case, evidence is sufficient to support a guilty verdict if, when viewed in the light most favorable to the State, any rational trier of fact could find each element of the crime proved beyond a reasonable doubt. State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003). When the sufficiency of evidence is challenged in a criminal case, we draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We give circumstantial and direct evidence equal weight. State v. Linden, 138 Wn. App. 110, 117, 156 P.3d 259 (2007). In addition, we leave resolution of conflicting testimony, credibility determinations, and the persuasiveness of evidence to the fact finder and do not review them on appeal. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
To prove the charged crime, the "to-convict" instruction required the State to prove that the assault in violation of the no-contact order occurred in Grays Harbor County.4 Nulf relies on State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998), to support his contention that the State was required to and failed to show that he committed the crime in Grays Harbor County.
In Hickman, the defendant participated in a plan to steal his car for financial gain. Hickman, 135 Wn.2d at 100. The defendant was living in Hawaii when the car was stolen. Hickman, 135 Wn.2d at 100. He called his insurance company, located in Kent, Washington, from Hawaii to report his car stolen. Hickman, 135 Wn.2d at 100. The car was eventually found in Snohomish County. Hickman, 135 Wn.2d at 100-01. The State charged the defendant with insurance fraud in Snohomish County. Hickman, 135 Wn.2d at 100-01. Although venue was not an element of the crime, the State agreed to the to-convict jury instructions, including an element that the crime occurred in Snohomish County. Hickman, 135 Wn.2d at 100-01.
The Washington Supreme Court held that because the State failed to object to the "to-convict" jury instructions, venue became an element of the crime that the State was required to prove beyond a reasonable doubt. Hickman, 135 Wn.2d at 105. Moreover, the Supreme Court found the State failed to prove that the fraud occurred in Snohomish County. Hickman, 135 Wn.2d at 105-06. Specifically, one statement by a deputy sheriff that he received a call reporting the car stolen "off Logan Road" without specification as to the Logan Road location was insufficient to prove the fraud occurred in Snohomish County. Hickman, 135 Wn.2d at 106.
This case is distinguishable from Hickman. Although the State presented no direct and explicit evidence that Nulf committed the assault in Grays Harbor County, it did present sufficient circumstantial evidence from which a rational trier of fact, drawing all reasonable inferences, could find the State met its burden of proving beyond a reasonable doubt that the incident occurred in Grays Harbor County. First, contrary to Hickman, the incident in this case occurred at one location. Second, several Grays Harbor County deputies and detectives testified that they responded and/or investigated the incident. The deputies and detectives also testified that Grays Harbor County employed them and the record contains no evidence that any of the officers worked for a jurisdiction outside of Grays Harbor County. Moreover, Deputy Eric Cowsert testified that the incident occurred in the "area of State Route 12 in Alfredson Road." RP (Mar. 22, 2007) at 48. Lieutenant Porter testified that he responded to the incident from Montesano (the Grays Harbor County seat), leading to a reasonable inference that the incident was in Grays Harbor County. Drawing all reasonable inferences from the evidence in favor of the State, a rational trier of fact could reasonably find that Nulf committed the assault in violation of the no-contact order in Grays Harbor County. DeVries, 149 Wn.2d at 849. There was substantial evidence to support the gratuitous element of venue.
Nulf next contends that the trial court violated his Sixth Amendment right to confrontation by admitting testimonial statements that Lieutenant Porter made while testifying for the State. The State concedes that Lieutenant Porter's testimony that the victim told the officers that Nulf was the car's owner and also that the person who assaulted her were likely testimonial statements. But the State maintains that the testimonial statements were harmless under the overwhelming untainted evidence test. The State is correct.
A confrontation clause violation does not require reversal if the error is harmless. State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005), aff'd, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). We employ the overwhelming untainted evidence test to determine whether an error implicating the confrontation clause is harmless. State v. Hieb, 107 Wn.2d 97, 109-10, 727 P.2d 239 (1986). The overwhelming untainted evidence test requires a finding of harmless error if the untainted evidence admitted is so overwhelming as to necessarily lead to a finding of guilt. Hieb, 107 Wn.2d at 110 (citing State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986)).
Here, the State elicited Christman's testimony that he observed the assault from his property. He observed the victim walking away from the car, leaving a trail of blood. He identified the car. He also identified Nulf in a photo lineup as the person in the car committing the assault. In addition, Officer Gay testified that when he arrested Nulf, Nulf made the statement, RP (Mar. 22, 2007) at 57-58. Furthermore, the officers described blood found in Nulf's car and the victim's significant injuries. The State also submitted the no-contact order showing that Nulf was prohibited from contacting Moose due to domestic violence.
Given this overwhelming and untainted evidence, the trial court's admission of Lieutenant Porter's statement that Moose told officers that the owner of the car was the person who assaulted her was harmless error. See Hieb, 107 Wn.2d at 110.
Nulf also contends that the trial court erred when it denied his request for a missing witness jury instruction. He maintains that he was entitled to the instruction because the victim did not testify during the trial. We disagree.
We review a trial court's refusal to give a requested instruction for abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997). A trial court abuses its discretion when it exercises that discretion on untenable grounds or for untenable reasons. State v. Lord, 161...
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