In re Pers. Restraint of Trotter

In the Matter of the Personal Restraint of: AARON WALLACE TROTTER, Petitioner.

No. 52627-1-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

October 27, 2020

UNPUBLISHED OPINION

LEE, C.J. — In this personal restraint petition (PRP), Aaron W. Trotter seeks to have his second degree assault with a firearm conviction vacated. Trotter argues that (1) the trial court erred by transferring his CrR 7.8 motion to this court as a PRP, (2) his re-trial on second degree assault with a firearm (count II) after he was acquitted of second degree assault by strangulation (count I) in his first trial violated double jeopardy, (3) the jury's failure to reach a verdict on second degree assault with a firearm (count II) at the first trial was an implied acquittal barring re-prosecution of that charge, and (4) the State was barred by collateral estoppel from trying Trotter again for assaulting Shantell Zimmerman after the jury acquitted him of assaulting Zimmerman at the first trial.

We hold that (1) the trial court did not err by transferring Trotter's CrR 7.8 motion to this court as a PRP, (2) double jeopardy was not violated when Trotter was re-tried on the second degree assault with a firearm charge after Trotter was acquitted of second degree assault by strangulation in the first trial, (3) the jury's failure to reach a verdict on second degree assault with a firearm (count II) at the first trial was not an implied acquittal barring re-prosecution of that charge, and (4) the State was not barred by collateral estoppel from trying Trotter again for second degree assault with a firearm after the jury acquitted him of committing second degree assault by strangulation at the first trial. Accordingly, we deny Trotter's PRP.

FACTS

On May 31, 2015, Shantell Zimmerman went to Trotter's house for a barbecue. Trotter punched Zimmerman several times, put his arm around Zimmerman's neck, and hit Zimmerman on the back and the head with the butt of a rifle.

On June 9, 2015, the State charged Trotter by information with two counts of assault. Count I was for second degree assault by strangulation,¹ domestic violence. Count II was for second degree assault with a firearm,² domestic violence with a firearm enhancement. Trotter was tried three times.

A. JURY TRIALS

1. First Trial

At the first trial, Zimmerman testified as follows. She began dating Trotter two years prior to trial. On May 31, 2015, Zimmerman went to Trotter's house for a barbecue. Trotter and Zimmerman drank alcohol from around 1 pm or 2 pm until dinner time. Zimmerman also smoked marijuana.

Zimmerman and Trotter were getting along until Trotter began calling her names. Zimmerman told him to stop, but Trotter did not. Then, while they were in the kitchen, Trotterstarted punching Zimmerman all over her body, including her face. When Trotter would not stop, Zimmerman ran into the bedroom, but Trotter followed her.

In the bedroom, Trotter started punching her again when she was on the bed. Zimmerman tried to get up, but Trotter grabbed her and put her in a chokehold. Zimmerman attempted to get her head out of the chokehold, and Trotter let go. Zimmerman fell down on the bed. Trotter then grabbed his AR-15 assault rifle from behind the door and bashed her in the back a couple of times and then once in the back of the head with the butt of the gun. Zimmerman ran to the bathroom, and Trotter did not follow her there. Zimmerman took a picture of all the blood in her hair and tried to clean herself up. Zimmerman then went to sleep in the bed, and Trotter left her alone.

Trotter testified that he and Zimmerman had dated for about a year and a half. Zimmerman was at Trotter's residence on May 31, 2015. Zimmerman arrived around 3 or 4 in the afternoon. Both Zimmerman and Trotter consumed alcohol and smoked marijuana, and Zimmerman became intoxicated.

After Zimmerman became intoxicated, Trotter asked her to leave, and she refused. Zimmerman finally walked out the door, and Trotter locked it behind her. Trotter testified that "[Zimmerman] turned around and jimmied my door lock open. And as soon as I seen that, I ran to my bedroom, I closed my door and I locked my door to separate us. I didn't want the incident to happen." Verified Report of Proceedings (VRP) (Aug. 14, 2015) at 151. Zimmerman rammed down the bedroom door with her body. After Zimmerman broke down the door, Trotter grabbed his shotgun from behind the door and defended himself. Trotter had an AR-15 that was also behind the door, but he never picked it up. After Zimmerman pushed down the door, Trotter tried to push her out, but that did not work. Then Trotter used his shotgun and tried to push her out with thebutt stock. Zimmerman's back was towards Trotter because she had used her back to push down the door. The butt of the shotgun hit Zimmerman's back. Trotter did not strike Zimmerman's head. Zimmerman charged toward him. Trotter put his arm around Zimmerman's neck and tried to tow her out of the house. Trotter testified:

She swats the shotgun out of my hands and hits the ground and at that point I pull her around straight and I push her, trying to get her out of my house, and she runs straight into a wall and then she hits the ground, and I obtained my shotgun and then I yell for my brother.

VRP (Aug. 14, 2015) at 158-59. Trotter told Zimmerman to leave, but she refused. Zimmerman went to the bathroom, took a picture, and then passed out in Trotter's bed. Trotter put his guns in the safe and went to sleep. Zimmerman left the next morning.

At the close of evidence, the trial court gave the jury its instructions, stating, in relevant part:

INSTRUCTION NO. 5

A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on the other count.

Clerk's Papers (CP) at 17 (boldface omitted).

INSTRUCTION NO. 6

A person commits the crime of assault in the second degree when he assaults another with a deadly weapon or assaults another by strangulation.

CP at 18 (boldface omitted).

INSTRUCTION NO. 9

To convict the defendant of the crime of assault in the second 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 May 31, 2015, the defendant assaulted Shantell Zimmerman by strangulation; and

(2) That this act occurred in the State of Washington.

CP at 21 (boldface omitted).

INSTRUCTION NO. 10

"Strangulation" means to compress a person's neck, thereby obstructing the person's blood flow or ability to breathe, or doing so with the intent to obstruct the person's blood flow or ability to breathe.

CP at 22 (boldface omitted).

INSTRUCTION NO. 11

It is a defense to a charge of Assault that the force used was lawful as defined in this instruction.

The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary.

The use of force upon or toward the person of another is lawful when used in preventing or attempting to prevent a malicious trespass or other malicious interference with real or personal property lawfully in that person's possession, and when the force is not more than necessary.

The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident.

The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty as to this charge.

CP at 23 (boldface omitted).

INSTRUCTION NO. 15

To convict the defendant of the crime of assault in the second degree as charged in count II, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about May 31, 2015, the defendant assaulted Shantell Zimmerman with a deadly weapon; and

(2) That this act occurred in the State of Washington.

CP at 27 (boldface omitted).

INSTRUCTION NO. 16

A firearm, whether loaded or unloaded, is a deadly weapon.

CP at 28 (boldface omitted).

During deliberations, the jury informed the trial court that they had a verdict for count I, but they were hung as to count II. The trial court stated to the jury:

I've called you back into the courtroom to find out whether you have a reasonable probability of reaching a verdict. First, a word of caution. Because you are in the process of deliberating, it is essential that you give no indication about how the deliberations are going. You must not make any remark here in the courtroom that may adversely affect the rights of either party or may in any way disclose your opinion of this case or the opinions of other members of the jury.

. . . .

. . . I'm going to ask your presiding juror if there's a reasonable probability of the jury reaching a verdict within a reasonable time. The presiding juror must restrict his answer to yes or no when I ask this question and must not say anything else.

. . . .

. . . So what I'm going to ask just focusing on Count II. Is there a reasonable probability of the jury reaching a verdict within a reasonable time as to Count II?

VRP (Aug. 14, 2015) at 300-01. The presiding juror answered, "No." VRP (Aug. 14, 2015) at 301.

The jury returned verdicts, finding Trotter not guilty of second degree assault by strangulation (count I) and leaving the verdict form blank for second degree assault with a firearm (count II). The trial court declared a mistrial as to second degree assault with a firearm (count II).

2. Second Trial

Trotter was retried on the charge of second degree assault with a firearm. Trotter's second trial ended in a...