State v. Ralph

• Decision Date: 07 August 2013
• Docket Number: No. 42398–7–II.,42398–7–II.
• Citation: 175 Wash.App. 814,308 P.3d 729
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Guy Jay RALPH, Jr., Appellant.

175 Wash.App. 814

308 P.3d 729

STATE of Washington, Respondent,

v.Guy Jay RALPH, Jr., Appellant.

No. 42398–7–II.

Court of Appeals of Washington, Division 2.

Aug. 7, 2013.

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Appellant.

Lewis M. Schrawyer, Attorney at Law, Port Angeles, WA, for Respondent.

OPINION PUBLISHED IN PART

HUNT, J.

[175 Wash.App. 817]¶ 1 Guy Jay Ralph, Jr. appeals his jury trial convictions and sentences for second degree robbery, second degree taking a motor vehicle without permission, and witness tampering. He argues that (1) the robbery and the taking a motor vehicle without permission convictions constitute double jeopardy, (2) the State failed to prove both “to convict” instruction alternative means of committing witness tampering and the trial court failed to give a jury instruction on alternative means unanimity, (3) the trial court erroneously included a prior Oregon conviction in his offender score because the State failed to prove it comparable to a Washington offense, and (4) the trial court erred in imposing legal financial obligations (LFOs) without finding that he had the ability to pay.

¶ 2 In the published portion of this decision, we hold that Ralph's robbery and taking a motor vehicle convictions constitute double jeopardy under the facts of this case. In the unpublished portion of this decision, we further hold that (1) Ralph fails to show manifest constitutional error under RAP 2.5(a)(3) to merit addressing for the first time on appeal his unpreserved challenges to (a) the State's failure to elect one alternative means of committing witness tampering, (b) the sufficiency of evidence to support the alternative means, and (c) the trial court's failure to give the jury an alternative means unanimity instruction; (2) the State failed to establish that Ralph's prior Oregon conviction was legally comparable to a Washington felony; and (3) his LFO issue is not ripe for review.

¶ 3 We vacate Ralph's conviction for second degree taking a motor vehicle without permission and remand to the trial court to strike this conviction from the record and to resentence him. At Ralph's resentencing hearing on remand, the State may present additional evidence to show the factual comparability of his prior Oregon conviction. We otherwise affirm.

FACTS

I. Crimes

¶ 4 In February 2011, Guy Jay Ralph, Jr., helped Leroy Hampton move belongings from Emily Beadle's trailer house to a new residence. After unloading his truck, Hampton told Ralph that they needed to return to Beadle's for another load. While Ralph was talking on Hampton's cellular telephone en route, Ralph asked Hampton to drive to another location to look at a bridge on which he (Hampton) had worked. Hampton heard Ralph ask whether the person to whom he was speaking on the phone wanted him (Ralph) “to go through the second job, or something like that”; the other person respond, “Yes”; and Ralph reply that he would “do it.” Verbatim Report of Proceedings (VRP) (July 19, 2011) at 35. Ralph then gave the phone back to Hampton and asked him to “pull over.” VRP (July 19, 2011) at 36. Feeling uncomfortable, Hampton initially refused to stop.

¶ 5 Ralph threatened to “beat [Hampton's] face in,” and Hampton stopped. Ralph accused Hampton of stealing a “$10 knife” from Beadle's house. VRP (July 19, 2011) at 38. Hampton denied this accusation and, to demonstrate that he did not have the knife, emptied his pockets and took off his jacket for Ralph to search. Ralph “punched [Hampton] in the face,” knocked him to the ground, and “came at [him] again”; Hampton “crawled under the door and ... took off running.” VRP (July 19, 2011) at 38.

¶ 6 Ralph drove away in Hampton's truck, which contained Hampton's jacket, wallet, and cell phone. Hampton ran to the nearest house and called 911. Officers later found Hampton's truck behind a store two or three miles from where the assault had occurred; Hampton's jacket was still in the truck, but his GPS system, his wallet, some stereo equipment, and his cell phone were missing.

¶ 7 Hampton identified Ralph in a photomontage. Ralph denied having taken Hampton's truck and asserted that Hampton had dropped him off at the trailer park where Beadle lived. The police arrested Ralph.

¶ 8 While detained in the Clallam County Jail awaiting trial, Ralph wrote a letter to his sister, stating:

Hey sister, ... could you do me a great big favor before my trial? Please. I need Emily (Welcome Inn number 44) to write a statement that on the morning of the 27th of February Leroy Hampton picked [sic] me and Denise around 1:00 a.m., and dropped us off around 4:00 a.m., and he was fine. Also, I need you to get ahold of Denise, Emily should know how, and have her say the same thing, only that Leroy, her and I drove to the Lower Elwha, he unloaded his truck and we came back. If you guys can't get ahold of her just leave her out of it. But have Emily write one please. And have her and Mike write that I stayed with them the rest of the day. Unless you want to write one for me. And Kim and mom. If not please make sure Emily will please. I need the statements to get to my attorney.... I'm putting his card in with this letter. Please make sure this gets done. And write back soon and let me know. Love me always, your little brother.

VRP (July 20, 2011) at 37–38.

II. Procedure

¶ 9 The State charged Ralph with second degree robbery (of Hampton's “personal property,” otherwise unspecified), second degree taking a motor vehicle (Hampton's truck) without permission, third degree theft (of unspecified “property or services of another”),¹ and tampering with a witness (by attempting to induce a person to testify falsely or to withhold from a law enforcement agency information relevant to a criminal investigation). Clerk's Papers (CP) at 92–93. The case proceeded to a jury trial.

A. Trial

¶ 10 At trial, the State's witnesses testified as described above. Ralph, the sole defense witness, testified that (1) Hampton arrived at Beadle's after midnight and he (Ralph) volunteered to help Hampton move, (2) he (Ralph) had not been angry with Hampton, and (3) Hampton had dropped him off near the trailer park and left. Ralph denied having assaulted Hampton and having taken his truck or other property. Ralph admitted having written the letter to his sister asking her to contact witnesses; but he claimed that he had not intended to ask anyone to change his or her testimony and that he had just wanted these people to contact his attorney and say that he (Ralph) had been with them on the day of the assault.

¶ 11 The trial court gave the jury the following “to convict” witness tampering instruction:

To convict the Defendant of the crime of TAMPERING WITH A WITNESS as charged in Count IV, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That during the period of time from on or about March 27, 2011, to on or about May 6, 2011, the Defendant attempted to induce a person to testify falsely or withhold from a law enforcement agency information which he or she had relevant to a criminal investigation; and

(2) That the other person was a witness or a person the Defendant had reason to believe was about to be called as a witness in any official proceedings or a person whom the Defendant had reason to believe might have information relevant to a criminal investigation.

CP at 74 (Instruction 20) (emphasis added).² Although Ralph objected to this “to convict” instruction on various grounds, he did not request a unanimity instruction for the alternative means mentioned in part (1) of this instruction. Nor did he object to the instruction's language “withhold from a law enforcement agency information which he or she had relevant to a criminal investigation.” Consequently, the trial court did not advise the jury that it must be unanimous about the alternative means used to commit witness tampering.

¶ 12 In their closing arguments, the State and Ralph mentioned both witness tampering means from the “to convict” instruction: attempt to “induce a person to testify falsely” and to “withhold from a law enforcement agency information which he or she had relevant to a criminal investigation.” But the substance of their arguments focused solely on attempt to “induce a person to testify falsely.” VRP (July 20, 2011) at 135.

¶ 13 The jury found Ralph guilty of second degree robbery of Hampton's truck, second degree taking a motor vehicle (Hampton's truck) without permission, and tampering with a witness. It found him not guilty of third degree theft of Hampton's personal items in his truck.

B. Sentencing

¶ 14 At sentencing, the State conceded that Ralph's robbery and motor vehicle taking convictions “merge[d] for purposes of sentencing” because the jury had acquitted him of the theft charge, which had been based on theft of the items in the stolen truck. VRP (Sentencing) at 4. Neither the parties nor the trial court, however, addressed whether the robbery and the motor vehicle taking convictions were the same crime for double jeopardy purposes.

¶ 15 Also at sentencing, Ralph argued that his prior 2004 Oregon conviction for unauthorized use of a motor vehicle should not be included in his offender score because the Oregon offense's “elements” were not the same as those for the analogous Washington offense and that his Oregon conviction should not be included in his offender score because it was “not counted” for sentencing on a previous otherwise unrelated Washington conviction. VRP (Sentencing) at 9. The State argued that the Oregon offense had the same elements as Washington's taking a motor vehicle offense. Without addressing the factual comparability of the Oregon offense, the trial court included the Oregon conviction in Ralph's offender score.

¶ 16 Despite Ralph's assertion that he was “indigent,” the trial court imposed LFOs, without making written or oral findings about Ralph's present or future ability to...