State v. Ellis

STATE OF WASHINGTON, Respondent, v. SCOTT M. ELLIS, Appellant.

No. 35146-7-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

June 12, 2018

UNPUBLISHED OPINION

PENNELL, A.C.J. — Scott Ellis appeals his convictions and sentence for second degree burglary, first degree vehicle prowling, obstructing a law enforcement officer, and third degree malicious mischief. We affirm Mr. Ellis's convictions but remand for resentencing.

FACTS

In the middle of a summer night in 2016, police were called to the Valleyway Self Storage facility in Spokane Valley, Washington. The call was prompted by unusual sounds and light emanating from a motor home stored at the facility.

Several officers responded to the scene. The officers approached the motor home and made contact with the person inside, who identified himself as Scott Ellis. Mr. Ellis told the police he had blocked the door and would not come out unless his Department of Corrections officer was present. The police told Mr. Ellis he was under arrest and ordered him outside. Mr. Ellis refused to comply. The police deployed pepper spray through the motor home's vents. That did not work. The officers attempted to breach the motor home's door, but could not get through Mr. Ellis's barricade. Eventually, the police were able to get inside the motor home by breaking through a window. Mr. Ellis was found hiding in a rear bedroom. He still refused to leave. Finally, a combination of a police dog bite and more pepper spray led Mr. Ellis to come out and surrender.

Mr. Ellis was charged with second degree burglary (for entering/remaining in the storage facility), first degree vehicle prowling (for entering/remaining in the motor home), third degree theft (cash alleged to be missing from the motor home), obstructing a law enforcement officer, and third degree malicious mischief (for damage caused to the motor home).

Mr. Ellis testified at trial and offered an explanation for his actions. Mr. Ellis said he had gotten into an argument with his ex-wife at her home earlier that evening. The ex-wife's boyfriend allegedly threatened Mr. Ellis, so he left. After walking approximately four blocks, Mr. Ellis saw the boyfriend and another man¹ following him in a truck so hebegan running and tried to lose them by cutting across nearby fields, parking lots, front yards, etc. Mr. Ellis testified he did not enter one of the nearby restaurants or supermarkets (at least some of which were open) because he did not want to get anyone else involved. Mr. Ellis eventually came across Valleyway Self Storage. Believing it was a safe area, he walked through the front gate and into the storage facility behind a truck towing a large trailer. Mr. Ellis then entered the second motor home he came across. He wrapped a seatbelt around the door to keep anyone from entering, and built a barricade for the same reason. Mr. Ellis then waited to make sure he was no longer being pursued. While waiting, he noticed some movies and started watching one on a television inside the motor home.

Mr. Ellis then testified about what happened when the police arrived. He explained the police arrived shortly after he turned on the television and immediately threatened him with a police dog. Mr. Ellis said he was frightened and started reinforcing his barricade. He testified his goal was to "stay safe." 2 Report of Proceedings (RP) (Jan. 24, 2017) at 233. Mr. Ellis testified he "didn't have any intention of fighting the police, by any means." Id. at 235. He further testified he only entered the storage facility and the motor home to find a safe place, and he built the barricade for the same reason. On cross-examination, Mr. Ellis agreed he had no lawful reason to be in the storagefacility or the motor home. He also testified his decisions were the result of "quick action and thought." Id. at 245. Mr. Ellis described "quick action" as doing something "without thought" while acting on "instinct or stupidity." Id. at 261.

Prior to the close of evidence, defense counsel indicated there was one more witness she hoped to call, and the court agreed to recess to give counsel time to find the witness. The defense rested the following day without calling this witness. There is no explanation in the record for why the witness was not called, and defense counsel never identified the witness. During closing, defense counsel argued Mr. Ellis never entered the storage facility or the motor home with the intent to commit a crime. She acknowledged Mr. Ellis was at the storage facility unlawfully. However, counsel argued the jury should convict Mr. Ellis of the lesser included offenses of criminal trespass in the first and second degree.

The jury found Mr. Ellis guilty of all charges except third degree theft.

At sentencing, defense counsel asked for an exceptional sentence downward on the burglary charge due to the unique circumstances of the offense and Mr. Ellis's chemical addiction and posttraumatic stress disorder (PTSD). In the alternative, counsel asked for a prison-based drug offender sentencing alternative. In support of Mr. Ellis's request for leniency, defense counsel presented a testimonial from one of Mr. Ellis's friends, JessicaJohnson, who spoke to Mr. Ellis's addiction, mental health problems, and conflicts with his ex-wife.

The sentencing judge addressed several of Mr. Ellis's concerns. The judge found chemical dependency likely contributed to Mr. Ellis's offenses. The judge also questioned defense counsel about facts surrounding Mr. Ellis's purported PTSD diagnosis and military service. Defense counsel explained she had not been able to obtain applicable documentation. The judge ultimately stated she lacked sufficient evidence to impose a treatment-based sentence or an exceptional sentence downward. The judge noted that if additional information had been available, the outcome might have been different. The judge thereafter imposed a standard range sentence.

ANALYSIS

Jury unanimity—burglary and vehicle prowling

Mr. Ellis argues his right to a unanimous jury verdict was violated because no unanimity instruction was given for the second degree burglary and first degree vehicle prowling charges. He asserts there is insufficient evidence he unlawfully entered the storage facility or the motor home with intent to commit a crime.

The Washington Constitution guarantees criminal defendants the right to a unanimous jury verdict. State v. Woodlyn, 188 Wn.2d 157, 162, 392 P.3d 1062 (2017);see also WASH. CONST. art. I, § 21. But a particular analysis is called for when the charged offense is an alternative means crime. Woodlyn, 188 Wn.2d at 163-64. A defendant does not have an absolute right to express unanimity in the context of an alternative means crime. Id. at 164. So long as all of a crime's alternative means are supported by sufficient evidence, a general guilty verdict is constitutionally sufficient. Id.

Mr. Ellis claims second degree burglary and vehicle prowling are both alternative means crimes. Specifically, both offenses require the State to prove the defendant entered or remained in a specified location with intent to commit a crime. Mr. Ellis concedes the State presented sufficient evidence that he illegally remained in both a building (the storage facility) and a vehicle (the motor home). However, because Mr. Ellis was fleeing perceived danger from his ex-wife's boyfriend at the time of entry, Mr. Ellis claims the State has failed to present sufficient evidence of illegal entry. Because the jury was never asked to make a unanimous finding as to illegal entry versus illegally remaining, Mr. Ellis argues both his burglary and vehicle prowling convictions must be reversed.

Mr. Ellis's argument fails because sufficient evidence supports finding Mr. Ellis illegally entered and remained on the premises. Contrary to the defense position, the jury was not required to believe Mr. Ellis's explanation that he sought refuge in the storage facility and motor home in order to escape a violent pursuit. The test for sufficiencyrequires the evidence be reviewed in the light most favorable to the State, not the defense. State v. Owens, 180 Wn.2d 90, 99, 323 P.3d 1030 (2014). The jury easily could have rejected Mr. Ellis's claim about trying to escape a violent pursuit given his refusal to seek help from alternate sources such as the nearby restaurants and stores. Mr. Ellis's conduct, including his surreptitious entry and destruction of property, provided the jury sufficient evidence from which to conclude Mr. Ellis harbored criminal intent both when he entered the storage facility and motor home and over the course of time that he remained on the premises.

Ineffective assistance of counsel

Mr. Ellis argues defense counsel was ineffective for: (1) failing to request jury instructions on a necessity defense, (2) not calling Ms. Johnson as a defense witness during trial, (3) not investigating a diminished capacity defense, and (4) not requesting a bill of particulars to specify the underlying crimes on the burglary and vehicle prowling charges.

A claim of ineffective assistance of counsel implicates a defendant's constitutional rights and may be considered for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). To establish ineffective assistance, a defendant must show both deficient performance and prejudice. State v. McFarland, 127 Wn.2d 322, 334-35,899 P.2d 1251 (1995). Counsel's performance will not be considered deficient if it can be characterized as legitimate trial strategy. Kyllo, 166 Wn.2d at 863. With respect to prejudice, a defendant must show "there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different." Id. at 862.

We reject Mr. Ellis's claim that defense counsel unreasonably failed to pursue a necessity defense. This is not a case where the defense failed to pursue a coherent strategy. The defense reasonably attempted to...