State v. Sundberg

• Decision Date: 18 October 2011
• Docket Number: No. 40261-1-II,40261-1-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. CORY A. SUNDBERG, Appellant.

STATE OF WASHINGTON, Respondent,

v.CORY A. SUNDBERG, Appellant.

No. 40261-1-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

Filed: October 18, 2011

UNPUBLISHED OPINION

Penoyar, C.J. - Cory A. Sundberg appeals his convictions of second degree assault (domestic violence) and unlawful imprisonment (domestic violence). He challenges the sufficiency of the evidence as to both counts and claims that the prosecutor committed misconduct in closing argument that denied him a fair trial. We reverse in part, affirm in part, and remand for resentencing.

Facts

After a volatile evening, Sundberg agreed to give RM, his girlfriend for the previous eight months, a ride from his home in Grapeview to Belfair. When Sundberg reached the intersection of State Route 106 and Highway 3, he turned right toward Allyn instead of left into Belfair. According to RM, he said to her that he was going to take her back to where he got her from. This remark frightened RM and she started waving her arms out the door, hoping someone would call the police. She continued screaming at the top of her lungs for him to stop the car, but he accelerated the car instead. Once they reached Allyn, he slowed down and she undid her seatbelt and turned toward her open door so she could jump out if he stopped. According to RM, Sundberg did not stop, pushed her from the car, drug her along the side of the car by the seatbelt,and when she finally freed herself, she flew tumbling through the air. She suffered multiple abrasions to her back, legs, head, and arms.

A woman driving behind them at the time described seeing feet six feet in the air before she braked to a stop. She said that the car in front of her never slowed down and the brake lights did not come on. She described RM as crying, shaking, distraught, and very worried about her dog, which was still in Sundberg's car.

Later that day, Sundberg gave a statement to Mason County Sheriff's Detective Jeffrey Rhoades. Sundberg told him that RM was upset about him turning to Allyn and opened the door and said she was going to jump out. When it was safe to do so, he stopped the car, according to his statement, and she got out. He noticed her standing in the middle of the road giving him the finger when he was about 100-150 feet away. Later, Sundberg said that perhaps he had not come to a complete stop and that she might have been tangled up in the seatbelt. At trial, Sundberg testified that he stopped the car, RM got out, and she started kicking the car. At that point, he left, went home, and went to sleep.

The State charged Sundberg with second degree assault (domestic violence), alleging that he intentionally assaulted RM with a deadly weapon: the roadway pavement.¹ It also charged him with unlawful imprisonment (domestic violence).² A jury found him guilty of both offenses. The court imposed concurrent standard range sentences of 84 months and 50 months respectively. Sundberg appeals.analysis

I Sufficiency of the Evidence: Second Degree Assault (Domestic Violence)

Sundberg first argues that the State failed to prove that he used the pavement to assault RM, reasoning:

[T]he road does not constitute a deadly weapon in that it was not the road in the circumstances in which it was used that created the risk of death or substantial bodily harm; the road was simply there and [RM] landed on it. There was no deadly weapon involved as what created the potential for death or substantial bodily harm was the fact that [RM] was pushed from a moving car even though she suffered only minor injuries.

Appellant's Br. at 9.

Both Sundberg and the State rely on this court's decision in State v. Marohl, 151 Wn. App. 469, 213 P.3d 49 (2009), rev'd, 170 Wn.2d 691, 246 P.3d 177 (2010), in which this court held that a casino floor was an instrument or thing likely to produce harm when the defendant slammed the victim into the floor, dislodging his prosthetic arm and causing significant injuries. Our Supreme Court has subsequently disagreed, holding: "The language of RCW 9A.36.031(1)(d) does not include the casino floor within the meaning of instrument or thing because, under the circumstances of this case, it was not likely to produce harm and it was not used as a weapon." Marohl, 170 Wn.2d at 700. The Supreme Court specifically concluded that a casino floor was unlike a weapon:

Accepting Marohl forced Peterson to the ground, there is no evidence his use of the ground transformed it into an object similar to a weapon.

The issue in this case is whether a floor is an instrument or thing likely to produce harm when the defendant causes the victim to impact the ground. The plain meaning of the statute is unambiguous—under these circumstances, the casino floor was not similar to a weapon, nor was it "likely to produce bodily harm." The casino floor was not within the scope of RCW 9A.36.031(1)(d).

Marohl, 170 Wn.2d at 702-03 (emphasis added).

The trial court, here, defined "deadly weapon" as follows: "Deadly weapon means any weapon, device, instrument, substance, or article, which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm." Clerk's Papers (CP) at 39. But under the Supreme Court's rationale in Marohl, the roadway here was clearly not similar to a weapon and the jury's conclusion that it was cannot stand. Marohl, 170 Wn.2d at 703. Because the roadway was not a deadly weapon, the State failed to prove second degree assault, and we reverse that conviction.³

II. Sufficiency of the Evidence: Unlawful Imprisonment

Sundberg claims that the State failed to prove that he committed unlawful imprisonment. As instructed, this required the State to prove:

(1) That on or about October 2, 2009, the defendant restrained the movements of [RM] in a manner that substantially interfered with her liberty;

(2) That such restraint was

(a) without [RM's] consent or

(b) accomplished by physical force, intimidation, or deception; and

(3) That such restraint was without legal authority;

(4) That, with regard to elements (1), (2), and (3), the defendant acted knowingly; and

(5) That any of these acts occurred in the State of Washington.

CP at 50. He contends that he stopped the car and let her out when she was yelling for him to stop and thus there is no evidence that he "restrain[ed]" her. Appellant's Br. at 13.

When facing a challenge to the sufficiency of the evidence, we ask whether, after viewingthe evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), we defer to the trier of fact's resolution of conflicting testimony, evaluation of witness credibility, and decisions regarding the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).

Here, RM testified that Sundberg turned toward Allyn instead of Belfair, sped up when she yelled at him to stop, she waved her arms frantically so that someone would see her and call 911, and that he finally pushed her from a moving vehicle going 35 miles per hour. This was ample evidence from which a jury could find that he was keeping RM in the car against her will by his manner of driving.

III. Prosecutorial Misconduct

Finally, Sundberg argues that prosecutorial misconduct denied him his right to a fair trial. He claims that the following amounted to an improper statement as to the prosecutor's personal beliefs:

Now credibility. I'll touch on this more, but I want to—I want to talk about it while we're here. I guess. You observed all the witnesses testify. That was your job. I saw you guys taking notes. You were doing a good job of that. I know there was—there was quite a few witnesses. You saw [RM] testify. She gave statements at the time of the incident, a number of statements she testified. And those statements and her testimony were consistent with one another, for the most part. There's going to be some inconsistencies in any testimony and statements for a number of reasons. But for the most part, she was consistent. Her story never changed because it was the truth.

Report of Proceedings at 359. He claims that this last remark was particularly egregious becausethis case boiled down to a credibility determination between RM and him.

In making this claim, Sundberg must show (1) misconduct and (2) that it was so flagrant and ill-intentioned that no curative instruction could have obviated the prejudice the misconduct created. State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).

The State concedes that the prosecutor made an improper comment but argues that it was a single comment, not repeated, and the trial court had instructed the jury that they were the sole judges of credibility and to disregard any remark or comment from the attorneys that the evidence did not support.

We agree. This was not solely a case of credibility. RM was injured, witnesses saw her fly from the car, and Sundberg neither stopped nor used his brakes. That RM gave consistent stories throughout was something the jury could consider and, in our view, while the prosecutor should have rephrased his explanation of this, it did not so prejudice the jury that it affected the trial's outcome. This coupled with the trial court's instructions, mitigated any potential prejudice. We fail to see this remark as flagrant and ill-intentioned.

Finally, Sundberg filed a statement of additional grounds⁴ in which he claims that trial counsel's failure to allow him to fully testify and present witnesses favorable to his defense denied him his right to effective assistance of counsel. We cannot consider matters or evidence outside the record in a...