State v. Wilson, No. 19887-1-III

Citation113 Wash.App. 122,52 P.3d 545
Decision Date22 August 2002
Docket Number No. 19887-1-III, No. 20536-3-III.
PartiesSTATE of Washington, Respondent, v. Ardis L. WILSON, Appellant. In re Personal Restraint Petition of Ardis L. Wilson, Petitioner.
CourtCourt of Appeals of Washington

Paul J. Wasson, Attorney at Law, Spokane, WA, for Appellant.

Kevin M. Korsmo, Andrew J. Metts, III, Matthew F. Duggan, Deputy Prosecuting Attorneys, Spokane, WA, for Respondent.

OPINION PUBLISHED IN PART

BROWN, C.J.

Ardis L. Wilson appeals his Spokane County convictions of second degree assault, first degree unlawful possession of a firearm, and gross misdemeanor reckless endangerment.1 The convictions stemmed from a shooting incident at a December 31, 1999 New Year's Eve party at a Spokane residence in which an unintended victim was wounded by a stray bullet.

Mr. Wilson contends (1) his speedy trial rights were violated due to untimely arraignment, (2) the jury was improperly given a transferred intent instruction, (3) inconsistent verdicts require reversal of the assault and reckless endangerment convictions, (4) the court erred in denying his motion for arrest of judgment as untimely, and (5) the court improperly used purported California convictions to miscalculate his offender score. Mr. Wilson also raises numerous issues in a pro se brief and in a consolidated personal restraint petition. We affirm Mr. Wilson's convictions but remand for resentencing and grant his personal restraint petition to that extent.

FACTS

Mr. Wilson was originally charged in district court with two counts of first degree assault on January 27, 2000, but for unknown reasons the warrant was not served on him until May 24. The superior court information was filed May 30, and he was arraigned on June 1. He did object to his arraignment as untimely, but did not pursue a hearing on the matter. After amendment of the information to add first degree burglary and unlawful possession of a firearm charges, the case ultimately proceeded to trial in October 2000.

The shooting victim, partygoer Tera Young, testified she was outside on the porch and heard an argument from inside about someone not paying to enter the party. A gunshot followed and she sustained a through-and-through bullet wound to the left breast and arm. She never saw who fired the shot. Before hitting her, the bullet traveled through a wooden pillar on the porch.

The home's resident, Adrienne Ellis, had permitted her sister Chandra and friends to have the party so long as front door bouncers frisked each entrant for weapons and collected a cover charge. Mr. Wilson arrived with three companions. According to Adrienne Ellis they were dressed in baggy clothes, but not frisked because they were friends with the doorman. Witnesses said these individuals acted suspicious, but mainly kept to themselves at the party.

Soon, a new arrival at the partyJohn Doe2—refused to pay the cover charge. He approached Mr. Wilson's group and made gang slurs. Mr. Wilson began arguing with John Doe, who, according to eyewitnesses, including Mr. Wilson's own companion Jerald Cavitt, did not act physically threatening. The room was full of people and John Doe was trying to avoid the confrontation. Mr. Wilson nevertheless pulled a gun from his back waist area and pointed it at John Doe's head. Witnesses heard John Doe telling Mr. Wilson it was not that serious and the gun was not necessary. But Mr. Wilson kept pointing the gun at John Doe's head and telling him it was that serious. None of the prosecution witnesses saw John Doe threaten Mr. Wilson or anyone else, and none saw him with a gun. One witness who did not specifically identify Mr. Wilson said the man holding the gun told John Doe that he was going to kill him.

Mr. Cavitt testified for the State. He said it was Mr. Wilson who took the argument to the next level by pulling a gun on John Doe. John Doe tried to slap the pointed gun away from his head as Mr. Wilson told him to get outside. Mr. Cavitt tried to act as a peacemaker and told Mr. Wilson not to do it. Mr. Wilson then hit John Doe in the face with the gun and a shot fired. That stray bullet struck Ms. Young. It appeared to at least one witness, Joshua Fross, that the gun was not intentionally fired. Mr. Fross said something caused it to go off when the person swung it at John Doe.3

Defense witnesses gave a different version of the events. Lowell Egbert and Jewaun Nave both testified they attended the party with Mr. Cavitt and Mr. Wilson and all were patted down at the door. A young male (John Doe) subsequently tried to force his way into the party. He was drunk and flashing his gang sign and brandished a weapon from beneath his shirt. Mr. Nave initially got in a dispute with him, but Mr. Wilson intervened and wrestled the gun away. Mr. Wilson then hit John Doe on the side of the head with the gun and it went off.

Mr. Wilson similarly testified that he did not have a gun that evening and was frisked at the door. He intervened and wrestled the gun away because he thought John Doe was going to do something to Mr. Nave. They struggled for the gun and it went off as John Doe kept coming toward him. Mr. Wilson finally gained control of the gun after the gunshot and took it with him as he fled the scene.

Detective Terry Boardman testified on rebuttal that she interviewed Mr. Egbert during the investigation and he was adamant that he never saw a gun at all.

The court gave a transferred intent instruction (no. 11) pertaining to the charges of first degree assault and lesser-included second degree assault against the intended victim Mr. Doe and the unintended victim Ms. Young. The court also gave reckless endangerment instructions pertaining to both victims, as well as Mr. Wilson's proposed self-defense instructions.

On October 6, 2000, the jury convicted Mr. Wilson of second degree reckless endangerment on the count pertaining to John Doe and second degree assault with respect to Ms. Young, thus rejecting Mr. Wilson's self-defense or defense of another theory. The jury also convicted him of first degree unlawful possession of a firearm, and by special verdict found he was armed with a deadly weapon when committing the assault. The jury acquitted on the burglary count.

On January 5, 2001, Mr. Wilson filed a motion for arrest of judgment, arguing, among other things, that the reckless endangerment and second degree assault verdicts were inconsistent and must be set aside. The court denied the motion as untimely without considering the merits. The matter then proceeded to sentencing. The court used two challenged California drug convictions in the offender score and imposed a 90-month standard range sentence, including a 36-month weapons enhancement. The court entered the judgment and sentence on January 26, and this appeal followed.

ANALYSIS
A. Speedy Trial

Mr. Wilson contends his CrR 3.3 speedy trial rights were violated due to the State's lack of due diligence in timely arraigning him between the January 27, 2000 filing of assault charges in district court and initial service of the arrest warrant on May 24 when he first appeared. He thus claims a constructive arraignment date should be set at February 10, 2000-14 days after filing of the district court complaint. State v. Greenwood, 120 Wash.2d 585, 845 P.2d 971 (1993); State v. Peterson, 90 Wash.2d 423, 427, 585 P.2d 66 (1978). Under his theory, the latest he could have been brought to trial under the 90-day, out-of-custody speedy trial rule was May 10, 2000, thus requiring dismissal of the charges with prejudice under CrR 3.3. We find no error.

CrR 3.3(c)(2)(i)(ii) requires the State to bring an out-of-custody defendant to trial not later than 90 days after the date of arraignment, less time elapsed in district court. Under CrR 3.3(c)(2)(i), a defendant must be arraigned within 14 days after the defendant's first appearance in court. But when lack of good faith and due diligence by the State results in a long and unnecessary delay in initially bringing the defendant before the court, the rule of State v. Striker, 87 Wash.2d 870, 875, 557 P.2d 847 (1976), applies to set a constructive arraignment date to start the speedy trial clock at 14 days after the information is filed. See Greenwood, 120 Wash.2d at 599,

845 P.2d 971; Peterson, 90 Wash.2d at 427,

585 P.2d 66. A defendant who is not promptly arraigned must raise this objection at the time of arraignment. Greenwood, 120 Wash.2d at 598,

845 P.2d 971.

Mr. Wilson did object to his arraignment as untimely, thus theoretically invoking scrutiny of the delay for purposes of setting a constructive arraignment date under Striker and Greenwood. But he never noted his motion for hearing as required by CrR 3.3(f). Thus, the court was not asked to consider whether the State failed to act in good faith or with due diligence in bringing him before the court. The State was not given a chance to proffer such evidence. Nor was Mr. Wilson's motion supported by any affidavit suggesting he was amenable to process after the district court complaint was filed. His claim is thus not reviewable, except that the record shows he was arraigned in superior court on June 1-8 days after his initial court appearance. Since he was then in custody, a trial date within 60 days was set. See CrR 3.3(c)(2)(i). Further continuances are not challenged. On the record presented, Mr. Wilson's speedy trial rights were not violated.

B. Transferred Intent Instruction

The issue is whether the court erred in giving the jury transferred intent instruction 11, which provided, "A defendant's intent to assault an intended victim transfers to an unintended victim. An intent against one victim is an intent against all victims." Clerk's Papers (CP) at 129. Mr. Wilson did not object to the giving of this instruction. It is therefore the law of the case. State v. Perez-Cervantes, 141 Wash.2d 468, 476 n. 1, 6 P.3d 1160 (2000). Moreover, transferred intent...

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