State v. Wilson

• Decision Date: 08 December 1993
• Docket Number: No. 13965-1-II,13965-1-II
• Citation: 863 P.2d 116,71 Wn.App. 880
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Mark S. WILSON, Appellant. Division 2

Page 880

71 Wn.App. 880

863 P.2d 116

The STATE of Washington, Respondent, v. Mark S. WILSON, Appellant.

No. 13965-1-II.

Court of Appeals of Washington,

Division 2.

Dec. 8, 1993.

Mark S. Wilson, pro se, and James L. Reese (court-appointed), Port Orchard, WA, for appellant

C. Danny Clem, Pros. Atty., and Pamela B. Loginsky, Deputy Pros. Atty., Port Orchard, for respondent.

JOHN A. PETRICH, Judge, Pro Tem. ¹

Mark Wilson appeals his convictions of four counts of assault in the first degree, RCW 9A.36.011(1)(a), and one count of harassment, RCW 9A.46.020. Wilson During the evening of January 5, 1990, Mark Wilson was in the Old Town Tavern in Silverdale, Washington, when he got into an argument with a male patron. Freda Jones, an employee of the tavern, told the men their behavior was inappropriate. Wilson then got into a "loud discussion" with another patron. Jones again told Wilson that his behavior was inappropriate. When Wilson got into a third loud argument, Jones told him to leave the tavern, which he did.

                makes 20 assignments of error, challenging the trial court's denial of his motions for severance of the harassment charge from the assault charges;  the trial court's allowing the State to amend the information on the day of trial to add two counts of assault in the first degree for acts against two intended victims who were not struck by bullets;  the sufficiency of the evidence to support his convictions for assault;  the denial of his motion for a new trial based on a witness's reference to rumors about him, combined with prosecutorial misconduct in closing argument;  and the imposition of a 240-month sentence.   In his pro se brief, Wilson supplements argument on the severance issue, claiming that because the evidence in support of the harassment count was unrelated to the evidence in support of the assault charges, and because the offenses were not the same, the proper standard of review is not whether the denial of the severance motion was an abuse of discretion, but rather whether mandatory severance was required.   We reverse the convictions for the two counts of first degree assault against the unintended victims, affirm the convictions for the first degree assaults against the intended victims, affirm the harassment conviction, and remand for resentencing
                

After talking with Patty Becker and Merry Judd, who were sitting at the bar close to a plate glass window, Jones went to the back of the tavern to put Wilson's name on the so called "86" list, a list of persons not allowed back in the tavern without the owner's permission. Subsequently, Wilson returned to the bar and Jones told him to leave. Wilson replied, "You will never leave this tavern alive tonight."

While leaving, Wilson turned to Judd and told her angrily, "Merry, don't leave the bar alone."

Minutes later, three or four bullets came through the plate glass window barely missing Judd and Becker. A bullet did hit Brian Hurles, an employee, and another hit James Hensley, a patron. Based on these events, the State ultimately charged Wilson with four counts of assault in the first degree, two for assaulting Hurles and Hensley on a theory of transferred intent and two for assaulting Judd and Jones.

The State also charged Wilson with one count of harassment, arising out of Wilson's involvement with the volunteer fire department of Fire District One where Wilson had served during 1979 and 1980. After leaving to serve in the military, Wilson reapplied for a fire-fighting position in 1982. However, no positions were available, and his application was denied.

Between 1980 and 1988, Wilson had several confrontations with volunteer firefighters at a tavern he frequented. Twice Wilson pointed his index finger at the firefighters, as if it were a gun. At other times and places, he "flipped them off". In 1988, Wilson made a late night phone call to the assistant fire chief demanding that the assistant fire chief remove Wilson's photograph from the front lobby hall. When the assistant fire chief refused to remove the photograph, Wilson said he would get back at them and make it "tough" on the firefighters.

On January 1, 1990, Wilson went to the firehouse, asking if a certain paramedic was on duty. When told no, Wilson angrily swore at the firefighters and said, "I am going to get my .9 millimeter and blow you a * * * * * * * away." And he said "that he would come back and get his nine, or gun, and come back and kill [the firemen]". The firefighters called the police and Wilson left, but returned 10 or 15 minutes later. He banged on the door and windows and screamed epithets and that he was going to kill them. The firefighters again called the police, who, upon arrival, told Wilson to leave. Wilson complied, but later telephoned the fire station. The firefighters put the call on the speaker phone so they could Wilson moved before trial to sever the harassment charge from the assault charges. The trial court denied the motion. Wilson renewed his motion on the morning of trial and again at the close of the State's case in chief. The trial judge denied these motions as well.

                all hear it.   Wilson said the police could not help the firefighters and he was going to kill them
                

On the day of trial, the court granted the State's motion to amend the information from two counts of assault in the first degree to four counts by adding assaults against the intended victims, Judd and Jones, on the theory that Wilson placed them in apprehension and fear of bodily injury. Although Wilson's counsel resisted the motion, he did not request a continuance. The case then went to trial and the jury found Wilson guilty on all counts. The trial court sentenced Wilson to 240 months incarceration, all counts being served concurrently.

SEVERANCE

Wilson argues that the trial court erred in denying his motions to sever the harassment charge from the assault charges. While Wilson's assignment of error is to the trial court's denial of his motions to sever, the parties argued and the court ruled on the propriety of joinder under CrR 4.3 and of severance under CrR 4.4. Thus, we consider both issues. As this court previously noted:

We first address the joinder issue, keeping in mind that whether all five counts were properly joined under CrR 4.3 is a question of law subject to full appellate review. Cf. United States v. Werner, 620 F.2d 922 (2d Cir.1989) (construing analogous Fed.R.Crim.P. 8). Moreover, if joinder was proper, the question of severance under CrR 4.4 is within the discretion of the trial court. State v. Thompson, 88 Wash.2d 518, 564 P.2d 315 (1977); State v. Weddel, 29 Wash.App. [at] 461, 629 P.2d 912 (1981). Hentz argues that the two incidents were not sufficiently alike to permit joinder under "the same or similar character" provision of CrR 4.3(a)(1) urged by the State. We disagree.

Some courts and commentators express the view that a very narrow construction of the "same or similar character" provision is desirable. They reason that such joinder is inherently prejudicial. See, e.g., United States v. Foutz, 540 F.2d 733 (4th ....

                Cir.1976);  1 C. Wright, Federal Practice § 143, at 317-18 (1969).   We believe the better view is to permit a broad joinder.   See State v. Thompson, supra.   This position comports with the important public policy of conserving judicial and prosecutorial resources.  United States v. Werner, supra.   Where it appears that otherwise proper joinder will unduly prejudice a defendant, it is still possible for the trial court to order severance under CrR 4.4
                

Although

joinder of counts should never be utilized in such a way as to unduly embarrass or prejudice one charged with a crime, or to deny him a substantial right[,]

Weddel, 29 Wn.App. [at] 464 , we are mindful that it is the defendant who bears the heavy burden of demonstrating that the trial court's action was an abuse of discretion. See United States v. Ochs, 595 F.2d 1247 (2d Cir.), cert. denied, 444 U.S. 955, 62 L.Ed.2d 328, 100 S.Ct. 435 (1979).

(Footnotes omitted.) State v. Hentz, 32 Wash.App. 186, 189-90, 647 P.2d 39 (1982), reversed on other grounds, 99 Wash.2d 538, 663 P.2d 476 (1983).

Wilson argues that the assault charges and the harassment charges are not of the "same or similar character", because proof of each involved different witnesses, different elements, different days, different locations, and only one involved the use of a weapon. Thus, he argues that the charges should not have been joined as a matter of law. We disagree.

CrR 4.3 provides for the joinder of offenses when the offenses "(1) Are of the same or similar character, even if not part of a single scheme or plan ..." As Judge Friendly noted in United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980):

The question of the propriety of joinder under Rule 8 and of refusal to grant relief from prejudicial joinder under Rule 14 are quite different in nature, although some decisions tend to obscure this. The former is a question of law, subject to full appellate review; if the joinder was not permitted by Rule 8, a conviction must be reversed unless the error was harmless. In contrast, the grant of relief under Rule 14 lies within the discretion of the trial judge and refusal to sever counts or defendants properly joined under Rule 8 will be reversed only if discretion was abused ...

(Footnotes omitted.)

While the Washington Supreme Court has blurred the distinction between joinder and severance so carefully drawn in federal law by referring to it as a broad rule, we do not believe the former joinder rule so broad as to change the standard of review from that of an error of law to one of an abuse of discretion. See Thompson, 88 Wash.2d at 525, 564 P.2d 315 (trial court has considerable discretion in matters such as joinder of offenses and declares CrR 4.3 as a liberal joinder rule without reference to CrR 4.4), overruled on other grounds, State v. Thornton, 119 Wash.2d 578, 835 P.2d 216...