State v. Ruesga, No. 36985-1-II (Wash. App. 2/3/2009)
| Decision Date | 03 February 2009 |
| Docket Number | No. 36985-1-II.,36985-1-II. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. MARK ANTHONY RUESGA, Appellant. |
Appeal from Pierce County Superior Court Docket No: 07-1-01909-1. Judgment or order under review Date filed: 11/09/2007. Judge signing: Honorable Thomas P Larkin.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, Po Box 1401, Mercer Island, WA, 98040-1401.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171.
UNPUBLISHED OPINION
Mark Anthony Ruesga appeals and asks us to reverse one of two convictions for violating a domestic violence court order, under former RCW26.50.110 (2007). He argues that these two convictions violate his constitutional right to be free from double jeopardy1 because his continuous residence with Deanna Lowell cannot give rise to two separate units of prosecution for unlawfully having contact with her. In his statement of additional grounds, Ruesga argues that (1) he was denied his right to a speedy trial, (2) the prosecutor improperly introduced testimony and evidence about his prior offense history, and (3) he received ineffective assistance of counsel. We affirm.
On April 7, 2005, the Pierce County Superior Court entered an order prohibiting Mark Anthony Ruesga from having any contact with Deanna Lowell for five years.2 The order states:
IT IS HEREBY ORDERED pursuant to RCW 10.99 and 26.50 that the defendant shall have no contact, directly or indirectly, in person, in writing, by telephone, or electronically, either personally or through any other person, with: DEANNA LOWELL.
Plaintiff's Exhibit 1.
Two years later, in spring 2007, Ruesga moved into Lowell's house and stayed for about three weeks. In the week leading up to April 7, 2007, Ruesga left the house and returned every day, to meet with his probation officer.3 On April 8, Lowell dialed 911, but hung up before speaking with an operator. When 911 dispatch called back, Lowell stated that she needed help and then hung up again. Two police officers responded, and confirmed the no-contact order prohibiting Ruesga from being in contact with Lowell. The officers then entered the house and arrested Ruesga.
On April 9, 2007, the State charged Ruesga with two counts of violating a domestic violence court order under former RCW 26.50.110.4 In the original information, the State alleged unlawful contact "on or about the 7th day of April" (Count I) and "during the period between the 1st day of April, 2007 and the 6th day of April, 2007" (Count II). Clerk's Papers (CP) at 1-2.
Before trial, on August 28, the State filed an amended information, changing the alleged dates of unlawful contact to "on or about the 8th day of April" (Count I) and "during the period between the 1st day of April, 2007 and the 7th day of April, 2007" (Count II).5 CP at 7-9. The State also alleged that Ruesga had twice before been convicted of violating a protection order, thus increasing the crime's classification from a gross misdemeanor to a class C felony. Former RCW 26.50.110(1)(5); CP at 2, 9.
The trial court granted Ruesga's attorney's request for a continuance of the June 4 trial date until July 9 in order to allow additional time for investigation. On July 9, again at Ruesga's attorney's request, the trial court granted another continuance until August 23.6 The trial court called Ruesga's case for trial on Thursday, August 23; it then recessed until Monday, August 27.
When court reconvened on August 27, Ruesga's attorney appeared with a sprained ankle and asked the trial court to address only pre-trial motions that day and to wait until the following day to begin jury selection. The trial court granted defense counsel's request. The next day, before jury selection, Ruesga, acting on his own without his attorney, moved for dismissal, claiming violation of his right to a speedy trial.7 The trial court denied the motion. The parties then selected a jury.
During the State's case in chief, Lowell testified that Ruesga had lived with her at her house for approximately three weeks and that in the week leading up to April 7, he had left the residence every day. Two police officers testified about having responded to Lowell's 911 call and arresting Ruesga at Lowell's house on April 8. The State also called Jennifer Sievers, a Pierce County deputy prosecuting attorney, who established (1) the existence of the protection order prohibiting Ruesga from being in contact with Lowell, and (2) that Ruesga had two prior convictions for violating a protection order.8
Ruesga testified that, although he had been in contact with Lowell at her residence on April 8, 2007, he did not know that there was a court order prohibiting him from contacting her.9
At the end of the two-day trial, the court instructed the jury that, to convict Ruesga of Count I, it must find beyond a reasonable doubt:
(1) That on or about the 8th day of April, 2007, the defendant willfully had contact with Deanna Lowell;
(2) That such contact was prohibited by a no-contact order;
(3) That the defendant knew of the existence of the no-contact order (4) That the acts occurred in the State of Washington.
CP at 21, Instruction No. 6. The instruction for Count II was identical except that it required the jury to find "[t]hat at some point between the 1st day of April, 2007 and the 7th day of April, 2007, the defendant willfully had contact with Deanna Lowell." CP at 22, Instruction No. 7. During closing, both Ruesga and the State argued to the jury that, in order to convict on both counts, it must find that Ruesga had made contact with Lowell, left, and then made contact with her again.
The jury convicted Ruesga on both counts. It also found by special verdict that Ruesga had twice before been convicted of violating a no-contact order. The trial court sentenced Ruesga to 56 months confinement on each count, to be served concurrently.
Ruesga appeals, asking us to reverse one of his convictions.
Ruesga argues that his two convictions for violating a protection order violate double jeopardy prohibitions10 because his continuous residence with Lowell for three weeks could give rise to only one "unit of prosecution." We disagree. Assuming, without deciding, that continuous contact with the victim could constitute only one "unit of prosecution," we hold that (1) the evidence is sufficient to show that Ruesga's contact with Lowell was not continuous; and (2) therefore, charging Ruesga with both counts did not violate double jeopardy principles.
Ruesga did not object below to his two charges on double jeopardy grounds. He also did not object to the trial court's now-alleged "failure" to instruct the jury that it must find that one act of violation of a protective order was complete before another violation of the protective order began; nor did he propose such an instruction at trial.
Generally, a party may not raise an issue for the first time on appeal unless the issue implicates a manifest error affecting a constitutional right. See RAP 2.5(a)(3). We use a two-part test to determine whether we should allow a new argument for the first time on appeal: First, we determine whether the error is truly constitutional. Second, we determine whether the error is manifest. State v. Kirkpatrick, 160 Wn.2d 873, 880, 161 P.3d 990 (2007) (citing State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)). "An error is manifest when it has practical and identifiable consequences in the trial of the case." State v. Ridgley, 141 Wn. App. 771, 779, 174 P.3d 105 (2007) (quoting State v. Stein, 144 Wn.2d 236, 240, 27 P.3d 184 (2001)).
An appellant may raise the issue of whether multiple convictions for violating the same statute violate double jeopardy principles for the first time on appeal because the alleged error is a manifest error affecting the defendant's constitutional rights. State v. Turner, 102 Wn. App. 202, 206, 6 P.3d 1226 (2000). Thus, in spite of Ruesga's failure to preserve this constitutional double jeopardy issue for appeal, we address it.
We review the interpretation and application of the double jeopardy clause de novo. State v. Knight, 162 Wn.2d 806, 810, 174 P.3d 1167 (2008) (citing State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007)). The appropriate remedy for double jeopardy violations is to dismiss with prejudice the convictions that violate double jeopardy. Knight, 162 Wn.2d at 810. We find no double jeopardy violations here.
The test for determining the sufficiency of the evidence is whether a rational person, after viewing the evidence in the light most favorable to the State, could have found each element of the crime beyond a reasonable doubt. State v. Montgomery, 163 Wn.2d 577, 586, 183 P.3d 267 (2008) (citing State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980)). When a criminal defendant challenges the sufficiency of evidence, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted 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 inferences that reasonably can be drawn therefrom. State v. Mines, 163 Wn.2d 387, 391, 179 P.3d 835 (2008); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd 95 Wn.2d 385, 622 P.2d 1240 (1980)).
We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
The double jeopardy...
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