State v. Oeung
| Decision Date | 27 September 2016 |
| Docket Number | 46425-0-II,46435-7-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. SOY OEUNG AND AZIAS ROSS, Appellants. |
UNPUBLISHED OPINION
The unpublished opinion in this case was filed on June 14, 2016. Upon the motions of each appellant for reconsideration, it is hereby
ORDERED that appellant Oeung's motion for reconsideration is hereby denied. It is further
ORDERED that appellant Ross's motion for reconsideration is hereby granted, and the opinion previously filed on June 14 2016 is withdrawn. A new opinion will be filed this same date.
IT IS SO ORDERED.
" Soy Oeung and Azias Ross appeal their multiple convictions[1] arising from a series of home invasion robberies in January and April 2012 (Ross) and May 2012 (Oeung). They argue that they are entitled to a new trial because of the violation of their public trial right during jury voir dire, the trial court's denial of their motion for mistrial, the prosecutor's misconduct during closing arguments, and the erroneous jury instructions on unanimity and reasonable doubt; further, they argue that there is insufficient evidence to support several of their convictions and the associated firearm enhancements. They also argue that the trial court made errors at their sentencing hearing. Finally, Ross argues separately that he received ineffective assistance of counsel and asserts two additional claims in a statement of additional grounds (SAG).
We hold that none of the alleged procedural errors during trial constitute reversible error and that there is sufficient evidence to support all of Oeung's and Ross's convictions and the associated firearms enhancements. We also hold that Ross's counsel was effective and that his SAG claims have no merit.
Further the sentencing court did not err when it ruled that Oeung's and Ross's first degree burglary and first degree robbery convictions were not the same criminal conduct, but did err when it dismissed certain convictions on counts that violated double jeopardy rather than vacating and dismissing them with prejudice. We further hold that the sentencing court did not err when it denied Oeung's request for an exceptional mitigated sentence and that the remainder of Oeung's judgment and sentence was proper. However, we hold that the sentencing court did err in sentencing Ross on counts I, XI and LXXII, and Oeung on count XIV. We reverse and remand with instructions to resentence Ross on counts I and XI and Oeung on count XIV not to exceed the statutory maximum sentence, acknowledge the scrivener's error on Ross's count LXXII, and order the sentencing court to resentence Ross on count LXXI.
On the evening of January 25, 2012, Soeung Lem entered her home through the back door when a man grabbed her arm and held a "gun" against her head. VI Verbatim Report of Proceedings (VRP) at 799. Lem never saw what the man was holding because she was afraid to look at it. The intruder asked her, first in English, then in Cambodian, "Do you know what this is?" VI VRP at 800-01. The man then forced her to lay down on her stomach on the kitchen floor.
The gunman, who was wearing dark clothes and a mask, asked her where she kept her gold. He then led her to the living area, where he laid her on the couch, tied her hands behind her back, and covered her face with a jacket. There was another man also searching the house. After both men finished searching the house, the gunman removed the jacket from Lem's face and told her not to get up for 15 minutes. The incident lasted about 30 minutes.
Lem called her children, who called the police. Lem described the men as slender, wearing dark clothes, and that one man was taller than the other. The men stole $4, 000 in cash and several pieces of gold jewelry, which Lem and her daughter later identified in photos the police provided.
In July, police showed a photo array to Lem, who selected and signed her name next to a photograph that depicted Nolan Chouap, who Lem identified at trial as the man who tied her up.[2]
On the evening of April 27, 2012, Bora Kuch was at home with her two-year-old grandson, watching television upstairs in the home that she shared with her daughter, and son-in-law, Fred Van Camp. She heard a loud noise downstairs and went to investigate. Two men confronted her on the stairs and pushed her back into a bedroom.
The men wore dark clothes and one covered his face with one of Kuch's shirts. The man who pushed Kuch was "over 20 years old, long hair, with mustache" and Kuch stated that he was "Khmer" because he threatened her in Cambodian. V VRP at 635. The other man searched the house, and Kuch did not see any details about him, but did note that he was taller than the man who pushed her.
Shortly after he pushed her into her room, the shorter man pointed a gun at Kuch. At one point, when Kuch attempted to open a window, the gunman shouted, "Do you want to die?" and pointed a black handgun at her. V VRP at 637, 642. The gunman then tied Kuch's hands behind her back "[w]ith some kind of wire." V VRP at 638. Kuch managed to untie herself while the men were still searching the house, but the men found her and tied her up again.
The two men continued to threaten Kuch, demanded keys to a safe, and asked for money. Kuch told the men that there was no money in the safe, only guns; Kuch gave the men $500 cash she kept hidden under her mattress when they threatened to hurt her grandson. The men broke into the safe, and one of the men showed Kuch a gun he took from the safe, stating, "This is a nice gun, grandma." V VRP at 652. While they were emptying the safe, Kuch heard the "taller guy" talking to a female on a phone. V VRP at 659.
The men took a number of handguns and jewelry from the safe and a necklace that Kuch's grandson was wearing. After they emptied the safe, the men left. The incident lasted for approximately two hours.
Van Camp learned of the robbery and called the police on his way home where he discovered eight firearms missing from the safe in his office. His friend, Sidoung Chan Sok, owned six of the stolen firearms. One of his guns, a 9 mm handgun, was mounted with a red laser-sight.
When police returned to show him photographs of recovered property, Van Camp identified four of the stolen firearms"a 12 gauge Remington 870 shotgun, a Mossberg 500 shotgun, a Springfield XT 9 mm handgun, and a Taurus 9 mm handgun. All but the 12 gauge shotgun belonged to Van Camp's friend, Sok. Van Camp also identified jewelry belonging to his wife and son. Van Camp testified that his and Sok's firearms functioned properly and were operable.
Later, on two separate dates, the police showed Kuch a photomontage. While viewing one of the photomontages, "[Kuch] told the officer that one picture looked similar to the person that came to rob [her], but the officer said, no, that's not the right guy." V VRP at 673-74. Kuch also testified that the officer showed her another photomontage, and that she identified and signed her name next to a photograph that depicted Nolan Chouap. That montage was admitted into evidence, and Kuch never made an in-court identification of any of the defendants.
On May 10, 2012, at around 5:00 p.m., a woman knocked on the door of Remegio and Norma Fernandez and asked for "John." VII VRP at 949. Remegio [3] looked out a window at the side of the door and told the woman, "John doesn't live here." VII VRP at 949. The woman left and got into a blue, four-door sedan. Remegio described the woman as 20-something, short, chubby, approximately four-foot eight-inches tall, and with light brown skin.
Approximately one hour later, Remegio and Norma were watching television when two men, one armed with a gun, shattered their back door and entered the home. Both men wore black knitted caps and handkerchiefs over their faces. At one point, the gunman lowered his handkerchief for a brief moment, and Remegio could see his whole face.
When the men entered the house, they ushered the Fernandezes upstairs, held them at gunpoint, and demanded money. Remegio a 20-year Army veteran, recognized the gun as a 9 mm handgun with a mounted laser-sight. Throughout the time the men were in the home, the gunman repeatedly threated Remegio with the gun, removed the pistol's loaded magazine, and showed Remegio the bullets. While the men searched the rest of the house, both Remegio and Norma heard the second man talking on a "two-way radio" with a woman. VII VRP at 988-90.
At one point, Remegio attempted to escape, but was caught by the gunman, who held the pistol in Remegio's mouth and threatened to kill him. After he attempted to flee, the men bound Remegio's hands and legs, and confined him and Norma in their bathroom, where the gunman held them at gunpoint until he and the other man left. The Fernandezes were in the bathroom for approximately one hour.
Before the intruders left, they told Remegio that they had friends at the Jack-in-the-Box near his home, and that if he did something the friends would come over and beat-up the Fernandezes. The intruders left with the stolen items in backpacks and suitcases taken from the home. The men were in the home for approximately three hours.
The men took more than $5, 000 in cash from Remegio's step-daughter's bedroom, all of the gold jewelry in the house, a display samurai sword, an Xbox 360 gaming console and a .22 caliber pistol. The pistol belonged to...
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