State v. Vangrinbergen, No. 24459-8-III (Wash. App. 3/13/2007)
| Decision Date | 13 March 2007 |
| Docket Number | No. 24459-8-III,24459-8-III |
| Court | Court of Appeals of Washington |
| Parties | STATE OF WASHINGTON, Respondent, v. ALBERT JOHN VANGRINBERGEN,[?] Appellant. |
Appeal from Spokane Superior Court. Docket No: 05-1-01644-3. Judgment or order under review. Date filed: 08/27/2005. Judge signing: Honorable Jerome J Leveque.
Counsel for Appellant(s), Janet G. Gemberling, Gemberling & Dooris PS, Po Box 20129, Spokane, WA 99204-7129.
Julia Anne Dooris, Gemberling Dooris & Ladich, Po Box 20129, Spokane, WA 99204-7129.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. Metts III, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
On May 6, 2005, Albert Vangrimbergen had an argument with Heather M. Wakefield, his girl friend, that escalated into a physical altercation. He was convicted of unlawful imprisonment and second degree assault with the intent to commit unlawful imprisonment. Claiming the trial court erred (1) by entering judgment on two felony counts when only one occurred; (2) by including his juvenile adjudications in his offender score; and (3) by violating his right to
— The appellant's name is spelled incorrectly on the information, judgment and sentence and notice of appeal. The correct spelling is discussed in the
Report of Proceedings (August 1, 2005) at pages 2-3. We will use the correct spelling in this opinion effective assistance of counsel, he appeals. We affirm.
Mr. Vangrimbergen and Ms. Wakefield were going to see his sister. On the way there, Ms. Wakefield got a call from a friend who wanted drugs. Mr. Vangrimbergen wanted to go with her to get them, but she refused. Driving past his sister's house, Mr. Vangrimbergen pulled over and told Ms. Wakefield to get out of the car several times. She did not. Ms. Wakefield grabbed the keys and he grabbed her hand. She bit him so he let go. She smacked him and he smacked her back. Mr. Vangrimbergen stated to police officer Erin Blessing, Report of Proceedings (RP) at 28.
Joe G. Burrell heard arguing and fighting. He heard "let me out" several times. RP at 42. After approaching the car, he heard noises from inside, including slapping sounds. He saw Ms. Wakefield had blood smeared on the front of her face and she was scared. When Mr. Burrell was questioned if he recognized Mr. Vangrimbergen as the person at the scene, he asked the defendant to stand up to see him better. At that point, he stated, "Yeah, he could hunt bear with a stick." RP at 51.
Gregory Carl Melrose saw Mr. Vangrimbergen striking Ms. Wakefield repeatedly. He heard the woman say, "Let me out," and "Help." RP at 55. Ms Wakefield was trying to get out of the car, but Mr. Vangrimbergen kept pulling her back. With the aid of Mr. Melrose and his cousins, Ms. Wakefield managed to crawl over Mr. Vangrimbergen's lap and out of the car. Her face was puffy and swollen.
Colin Daniel Leuthold also saw Mr. Vangrimbergen beating Ms. Wakefield and preventing her from getting out of the car. She had a bloody nose and was crying.
Mr. Leuthold testified, RP at 69. He heard Ms. Wakefield say the defendant "liked to hit a lot." Id.
The State charged Mr. Vangrimbergen with unlawful imprisonment, second degree assault with intent to commit unlawful imprisonment, and fourth degree assault. The jury convicted him of the unlawful imprisonment and second degree assault charges. The court sentenced him to 46 months confinement. This appeal follows.
Mr. Vangrimbergen contends the court violated double jeopardy by entering judgment on both felony convictions. The constitutional guaranty against double jeopardy protects a defendant from multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980). In other words, if the elements of each offense are identical, or if one is a lesser-included offense of the other, a subsequent prosecution is barred. Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); see Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In Washington, it is well-established that offenses committed during a "'single transaction'" are not necessarily the "'same offense.'" State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983) (quoting State v. Roybal, 82 Wn.2d 577, 512 P.2d 718 (1973)). "In order to be the `same offense' for purposes of double jeopardy, the offenses must be the same in law and in fact." Vladovic, 99 Wn.2d at 423 (emphasis added); In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 47, 776 P.2d 114 (1989). An offense is factually the same if "proof of one offense. . . prove[s] the other." Vladovic, 99 Wn.2d at 423. An offense is legally the same if the elements of both offenses are necessarily included in each other. Id.
Unlawful imprisonment and second degree assault with intent to commit unlawful imprisonment are not the same offense. The two offenses are factually distinct. In trial testimony, witnesses said Mr. Vangrimbergen prevented Ms. Wakefield from leaving the car by pulling her back when she tried to get out. This evidence established Mr. Vangrimbergen unlawfully imprisoned Ms. Wakefield, but did not necessarily prove he assaulted her.
The two offenses are also legally different. Mr. Vangrimbergen was charged with second degree assault with intent to commit unlawful imprisonment. RCW 9A.40.040. Because assault is not defined in the criminal code, Washington courts have turned to the common law for its definition: an attempt, with unlawful force, to inflict bodily injury upon another; an unlawful touching with criminal intent; or putting another in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting harm. State v. Walden, 67 Wn. App. 891, 893-94, 841 P.2d 81 (1992) ().
On the other hand, a person is guilty of unlawful imprisonment if he knowingly restrains another person. RCW 9A.40.040. Unlawful imprisonment may be accomplished by physical force, intimidation, or deception. RCW 9A.40.010(1)(a).
Second degree assault with intent to commit unlawful imprisonment requires proof of assaulting another person, an element not necessary for unlawful imprisonment. The latter two methods of committing unlawful imprisonment, i.e., intimidation or deception, do not require any bodily injury unlawful touching, or apprehension of harm. State v. Frohs, 83 Wn. App. 803, 813-14, 924 P.2d 384 (1996). Moreover, the unlawful imprisonment charge requires proof of restraining another person's movements, which is not an element of second degree assault. See RCW 9A.40.010(1). Accordingly, the two offenses here are not the same offense. There is no double jeopardy violation.
Mr. Vangrimbergen claims the court erred by including his juvenile adjudication in his offender score because these determinations were not made by a jury beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 301-02, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The Blakely court clarified the meaning of "statutory maximum" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant" without finding any additional facts. Blakely, 542 U.S. at 303 (emphasis omitted). But a defendant's prior adult convictions may be considered to calculate his offender score without finding any additional facts by a jury. State v. Hughes, 154 Wn.2d 118, 134, 110 P.3d 192 (2005), overruled in part on other grounds by Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
This exception applies to prior juvenile adjudications as well. State v. Weber, 159 Wn.2d 252, 265, 149 P.3d 646 (2006). Mr. Vangrimbergen's prior juvenile adjudications were properly considered in calculating his offender score.
He further argues he was denied effective assistance of counsel when his lawyer failed to object to testimony from two prosecution witnesses. The test for ineffective assistance of counsel consists of two prongs: (1) whether counsel's performance was deficient, defined as falling below an objective standard of reasonableness, and (2) whether that deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. James, 48 Wn. App. 353, 359, 739 P.2d 1161 (1987). As for the first prong, a strong presumption exists that defense counsel provided adequate assistance. James, 48 Wn. App. at 359 (quoting Strickland, 466 U.S. at 689). As for the second prong, the defendant must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. A reasonable probability means a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. But defendants "need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693. In addition, if defense counsel's trial conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel. State v....
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