State v. Ross

Decision Date20 March 2018
Docket Number48321-1-II
Citation2 Wn.App.2d 1063
PartiesSTATE OF WASHINGTON, Respondent, v. AZARIAH CHENAZ ROSS, Appellant.
CourtWashington Court of Appeals



Azariah Chenaz Ross appeals his convictions of two counts of burglary in the first degree, three counts of robbery in the first degree, six counts of unlawful imprisonment, four counts of trafficking in stolen property in the first degree, and one count of theft of a firearm. He argues that the trial court erred by admitting his statements to the police and by failing to enter written findings of fact and conclusions of law. He also argues the information failed to sufficiently provide notice, insufficient evidence supported the theft of a firearm conviction, the prosecutor committed misconduct and his convictions of unlawful imprisonment must merge with his burglary and robbery convictions or violate double jeopardy. As to his sentence, Ross argues that his unlawful imprisonment convictions constitute the same criminal conduct as his robbery convictions.

Ross also raises numerous issues in a statement of additional grounds (SAG). We affirm Ross's convictions.

I. The Robberies

Between January 25 and August 26, 2012, a series of seven home invasion robberies occurred in a single neighborhood in southeast Tacoma.

A Fernandez Residence

In the early evening of May 10, 2012, Ross and another man broke into the residence of Remegio and Norma Fernandez through their back patio. One of the men pointed a gun with a laser sight at Mr. Fernandez. The men demanded jewelry the Fernandezes were wearing and money. They took gold jewelry from the Fernandezes. The intruders then ransacked the Fernandezes' bedroom searching for money. They found more jewelry in a briefcase. At one point, Mr. Fernandez tried to escape, but the men caught him and subsequently tied him up in the bathroom. The man with the gun punched and kicked Mr Fernandez and put the barrel of the gun in his mouth, warning him not to "try it again." 7 Report of Proceedings (RP) at 925.

The intruders were in the residence for approximately three hours. Before leaving, they told the Fernandezes not to move because they had friends waiting nearby who would come back and beat them up if they tried anything.

Mr. Fernandez made a list of items the intruders took, including a .22 caliber pistol, a laptop computer, an Xbox 360 console, and approximately $5, 500 in cash. They also took jewelry belonging to Mrs. Fernandez's daughter.

B. Eng-Yu-Moo Residence

On June 29, Rany Eng resided with her eleven-year-old daughter, Abby Eng Cui, and a couple, Hing Yu and Theim Moo. In the early evening, Eng entered her house and encountered two intruders, one of whom was Ross. One of them pointed a gun at her and ordered her to sit. One went upstairs while the other remained with Eng and the other residents. The intruder who remained downstairs tied Eng's hands and feet. He then asked her, "[y]ou want to die?" 7 RP at 1162.

Yu tried to run and call for help and managed to push an alarm button multiple times. He made it to the back door before the intruder caught him and pulled him back in the house. The intruder hit Yu with the gun. One of the intruders also pulled down a security camera and threw it at Moo, hitting her in the face. The camera also struck Cui. The men broke the other seven security cameras in the house.

Shortly after the intruders left, the police arrived, responding to the alarm.

Eng made a list of items taken from her, including jewelry and $8, 000 in currency.

C. Other Robberies and Investigation

Similar crimes occurred on five other occasions in 2012. Robbery detectives Timothy Griffith and Robert Baker investigated them.

On July 12, Griffith interviewed an inmate at the Pierce County Jail. Based on the inmate's tip, Griffith and Baker listened to several recorded phone calls made by an inmate at the Pierce County Jail. The inmate was Ross's brother, Azias Ross.[1] In the calls, Azias incriminated Ross.

II. Arrest and Interrogation

In August, police arrested Ross, Azias, and three other suspects: Nolan Chouap, Alicia Ngo, and Soy Oeung. When arrested, Ross possessed three Ziploc bags containing jewelry, a pouch containing five watches, and another pouch with more jewelry. He also had a wad of cash containing 56 hundred-dollar bills and various smaller denominations. The victims from one of the incidents identified much of the jewelry as theirs.

The detectives interviewed Ross after he had been in a holding cell for approximately ten and a half hours. They read Ross his Miranda[2] rights and he initialed and confirmed that he understood them. The interview lasted approximately two hours.

During the course of the interview, Ross admitted to having taken part in the crimes, including those at the Fernandez and Eng-Yu-Moo residences. Ross also told the detectives he sold stolen gold jewelry to a man at a watch repair kiosk that didn't take Ross's name down.

III. Pretrial Proceedings

On August 30, the State charged Ross with 57 counts, including conspiracy to commit burglary in the first degree, conspiracy to commit robbery in the first degree, burglary in the first degree, robbery in the first degree, unlawful imprisonment, assault in the second degree, trafficking in stolen property, and theft of a firearm. The State included Chouap, Oeung, Ngo, and Azias as codefendants but Ross eventually went to trial as the sole defendant.

A. Confession Hearing

The court held a confession hearing pursuant to CrR 3.5 on the admissibility of Ross's statements to the police. Griffith testified that he believed Percocet pills had been found in the interrogation room, but he did not recall Ross being under the influence of drugs during the interrogation. Griffith did not notice "any indications" of Ross being "high on drugs." RP (Aug. 19, 2013) at 37. Baker also did not recall Ross being high on pills during the interview. He testified that he had destroyed his notes of the interview because Griffith had written the report.

The court found that Ross had stated he understood his rights and he never asked for an attorney or for the interview to stop. It also found that there was no indication that Ross was high or on drugs during the interview. It found there was no evidence to support Ross's arguments that he had been under the influence of Percocet during the interview, despite counsel's "questions and innuendos" to the contrary. Clerk's Papers (CP) at 216. The court ruled that all of Ross's statements were admissible.

The court did not enter any written findings of fact or conclusions of law after the hearing. However, after Ross had filed his notice of appeal and opening brief, the court issued its written findings of fact and conclusions of law. It concluded that there was "no evidence the defendant was on Percocet at the time of the interview" and that Ross's statements to the detectives were admissible. CP at 1053. It further concluded that Ross made a "knowing, voluntary, and intelligent waiver of his Miranda rights after fully understanding them."[3] CP at 1053-54.

B. Second Amended Information

On June 12, 2015, the State filed its second amended information. The charges that would go to trial consisted of: 1 count of conspiracy to commit robbery in the first degree and/or burglary in the first degree, 7 counts of burglary in the first degree, 14 counts of robbery in the first degree, 18 counts of unlawful imprisonment, 7 counts of trafficking in stolen property in the first degree, 2 counts of theft of a firearm, and 3 counts of assault in the second degree. The burglary counts each specified the date on which the alleged burglary took place, but did not identify the addresses where each occurred or provide any other details of the specific burglaries. The robbery counts provided each victim's last name and first initial but did not identify what property was stolen or the locations where the robberies occurred. The unlawful imprisonment counts specified the date on which the alleged crimes took place but did not specify the victims or any other details.

IV. Trial
A. Motion to Dismiss

On the eighteenth day of trial, after the State rested its case, Ross moved to dismiss all counts in the second amended information. He argued that the information was constitutionally deficient as to the robbery counts because it did not identify what property was taken from each victim, where that property was taken, and the identity of each victim. He argued it was deficient as to the burglary counts for failing to identify the addresses where the alleged burglaries had occurred. He argued it was deficient as to the unlawful imprisonment counts for failing to identify the victims of each individual count. He argued that the trafficking in stolen property counts were deficient because they failed to identify the stolen property that was trafficked. Finally, he argued that the theft of a firearm counts were deficient because the information did not "identify which firearms were stolen." CP at 410.

After the trial court heard arguments on Ross's motion to dismiss, it ruled that "the essential elements are in fact set forth as to each crime" and that the information was not constitutionally deficient. 18 RP at 2450. It concluded that "the information [was] in fact constitutionally sufficient because as to each crime that [was] alleged, the essential elements of the crime [were] set forth." 18 RP at 2451.

In so ruling, the court stated that any deficiency as to specific facts was "the kind of information that could have been addressed with a bill of particulars." 18 RP at 2452. The prosecutor then voluntarily offered an oral bill of particulars to address any...

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