State v. Weaver

• Decision Date: 09 November 2021
• Docket Number: 54258-7-II,55021-1-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. SAMMY BURRIS WEAVER, Appellant In the Matter of the Personal Restraint of: SAMMY BURRIS WEAVER, Petitioner.

STATE OF WASHINGTON, Respondent,
v.
SAMMY BURRIS WEAVER, Appellant

In the Matter of the Personal Restraint of: SAMMY BURRIS WEAVER, Petitioner.

Nos. 54258-7-II, 55021-1-II

Court of Appeals of Washington, Division 2

November 9, 2021

UNPUBLISHED OPINION

LEE, C.J.

Sammy B. Weaver appeals his conviction and sentence for first degree burglary. Weaver argues that (1) the State failed to present sufficient evidence of unlawful entry, unlawfully remaining, and intent to commit misdemeanor harassment to support the first degree burglary conviction, (2) the trial court erred in its "to-convict" jury instruction, and (3) his offender score was improperly calculated because the State failed to meet its burden of proving his prior convictions. In a statement of additional grounds (SAG), Weaver argues that the trial court erred in denying his motion in limine, he received ineffective assistance of counsel, certain evidence was erroneously admitted, and the State used perjured testimony. Weaver also filed a personal restraint petition (PRP), arguing that the trial court disregarded the rules of evidence by admitting the knife and alleged gun and that he was denied his right to cross-examine a witness.

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We hold that Weaver's sufficiency of the evidence argument fails because the State presented sufficient evidence of unlawful entry, unlawfully remaining, and Weaver's intent to commit misdemeanor harassment. We decline to address Weaver's instructional error argument because he waived any challenge to the trial court's jury instructions on appeal. As to Weaver's offender score, the State concedes that Weaver's offender score was improperly calculated because it failed to meet its burden to prove Weaver's prior convictions. We also hold that Weaver's SAG claims regarding the motion in limine, ineffective assistance of counsel based on counsel's not examining a witness about his history with Weaver, and false testimony fail. We decline to address Weaver's SAG claim regarding ineffective assistance of counsel based on a failure to gather video evidence from the store and authentication. Further, we hold that Weaver's PRP claims fail.

Accordingly, we affirm Weaver's conviction for first degree burglary, but reverse Weaver's sentence and remand to the trial court for resentencing. We also deny Weaver's PRP.

FACTS

A. Charging Information

The State charged Weaver with first degree burglary and felony harassment for an incident at an auto parts store in Belfair, Washington. In support of the first degree burglary charge, the State alleged that Weaver entered or remained unlawfully in the auto parts store with the intent to commit a crime "therein" on August 6, 2019.

B. Trial Testimony and Motions

Prior to trial, Weaver moved to exclude any testimony regarding Sergeant Kelly La France's concerns for safety about Weaver. Weaver anticipated that Sergeant La France would testify about safety concerns because her report included prior incidences with Weaver and

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Weaver's known hostility to law enforcement. The trial court denied Weaver's motion to exclude. Sergeant La France did not testify at trial about any safety concerns due to prior incidences involving Weaver or about Weaver's known hostility to law enforcement.

Testimony at trial established that Weaver was banned from entering the auto parts store. Christopher Schamerhorn, a store employee, testified that on July 24, 2019, he told Weaver, "[Y]ou are trespassing; you are not welcome here, please leave." 1 Verbatim Report of Proceedings (VRP) (Oct. 2, 2019) at 109. Nathan Datus, another store employee, testified that "[Weaver] was told multiple times by our manager, as well as other employees" that he was banned from the store. 1 VRP (Oct. 2, 2019) at 139. Brian Kaufman, also a store employee, testified that he had to "escort[] [Weaver] out the door with my hands after [Weaver] was asked to leave thirty times." 2 VRP (Oct. 3, 2019) at 186. And Brendan Farlow, the store manager, directed his employees to call the police the next time Weaver entered the store.

On August 6, 2019, Weaver entered the store to complain about a transaction between store employees and a woman he had met that same day. Weaver entered the store with a knife on his hip. Weaver went to the counter and confronted Schamerhorn about the transaction. Datus witnessed the incident from about 12 to 14 feet away. Datus testified that Weaver pulled the knife from its sheath as the conversation with Schamerhorn got heated. Weaver held the knife with its blade pointed up, but under the counter where Schamerhorn could not see it. Other employees and customers were present inside the store during the incident.

As conversation escalated, Schamerhorn called Farlow and gave the phone to Weaver. Farlow spoke to Weaver on the phone and invited Weaver to return the next day to discuss the complaint in person. Farlow hoped that the call would placate Weaver and prevent the

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confrontation from further escalating. The phone call lasted less than a minute, and Weaver promptly left the store.

After Weaver left the store, Datus told Schamerhorn that Weaver held a knife under the counter. Schamerhorn testified that he did not know about the knife until Weaver left the store. When he learned about the knife, Schamerhorn became fearful of Weaver.

Datus had called 911 the moment Weaver arrived at the store. While Datus was on the phone with the 911 operator, Weaver pointed what looked like a gun at Datus. Datus believed that the gun was real and threw himself to the ground. Sergeant La France responded to the incident and arrested Weaver. Datus remained on the phone with the 911 operator until Sergeant La France took Weaver into custody.

Weaver called Michael Christen to testify at trial. Christen testified that he had worked at the store for about three months and was working on the day of the incident that led to Weaver's arrest. On cross-examination, Christen testified that Weaver made him nervous because he saw a knife on Weaver and because he knew Weaver for "a lot of years." 2 VRP (Oct. 3, 2019) at 199. Defense counsel objected to Christen's testimony, but the trial court overruled the objection. Defense counsel did not follow up on Christen's past history with Weaver.

The State moved to admit Weaver's knife into evidence. Datus testified that the knife he was shown in court was the same knife that Weaver held on the day of the incident. The knife was admitted into evidence without objection.

The State also moved to admit the alleged gun, which was a makeshift piece of metal resembling a pistol, into evidence. The trial court admitted the alleged gun, marked as exhibit two, without objection. Datus testified that he believed exhibit two resembled a gun when pointed.

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Datus also testified that it was the same object that Weaver pointed at him on the day of the incident.

C. Jury Instructions and Closing Arguments

The trial court instructed the jury on first degree burglary. The "to convict" instruction for first degree burglary provided that

To convict the defendant of the crime of burglary in the first degree as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 6th day of August, 2019, the defendant entered or remained unlawfully in a building;

(2) That the entering or remaining was with intent to commit a crime against a person or property therein;

(3) That in so entering or while in the building or in immediate flight from the building the defendant was armed with a deadly weapon; and

(4) That any of these acts occurred in the State of Washington. Clerk's Papers (CP) at 35. Weaver did not object to this instruction at trial.

During closing argument, the State argued that Weaver unlawfully entered the auto parts store on August 6, 2019, and unlawfully remained in the store. The State also argued that Weaver intended to commit misdemeanor harassment "therein" when Weaver held the knife under the counter while confronting Schamerhorn. Weaver argued that the State presented insufficient evidence of both unlawful entry and unlawful remaining. Weaver also argued that he did not intend to commit misdemeanor harassment "therein." The jury found Weaver guilty of first degree burglary.

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D. Sentencing

At sentencing, the State alleged that Weaver had two prior convictions. Specifically, the State alleged that Weaver had one conviction for residential burglary in January 1999 and another for unlawful possession of a controlled substance in January 2014. The State relied on these alleged convictions to argue that Weaver had an offender score of four on the burglary charge and asserted that "Mr. Weaver has a substantial amount of misdemeanor criminal history that prevents any of these felonies from washing out." 2 VRP (Oct. 21, 2019) at 311.

Defense counsel did not object to the State's allegations of Weaver's prior convictions. Furthermore, there is no evidence in the record that substantiates Weaver's criminal history. The court sentenced Weaver to 45 months confinement.

Weaver appeals.

ANALYSIS

A. Sufficiency of the Evidence

Weaver argues that insufficient evidence supports the jury's verdict for first degree burglary. We disagree.

1. Legal Principles

Under both the federal and state constitutions, due process requires that the State prove every element of a crime beyond a reasonable doubt. State v. Hummel, 196 Wn.App. 329, 352, 383 P.3d 592 (2016). Thus, "sufficiency of the evidence is a question of constitutional law that we review de novo." State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).

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To determine whether the State has produced sufficient evidence to support the charged crime, we view the evidence in the light most favorable to the State and determine whether any rational trier of fact...