State v. Tasker

193 Wash.App. 575

373 P.3d 310

STATE of Washington, Respondent

v.Christopher Michael TASKER II, Appellant.

No. 32826–1–III.

Court of Appeals of Washington, Division 3.

April 28, 2016.

Kristina M. Nichols, Jill Shumaker Reuter, Laura Michelle Chuang, Nichols Law Firm PLLC, Spokane, WA, for Appellant.

David Brian Trefry, Yakima County Prosecutor's Office, Spokane, WA, Joseph Anthony Brusic, Yakima County Prosecutor's Office, Yakima, WA, for Respondent.

OPINION PUBLISHED IN PART

SIDDOWAY, J.

¶ 1 Christopher Tasker appeals the sentence imposed for his convictions of first degree kidnapping, attempted first degree robbery, and first degree unlawful possession of a firearm. He challenges the sufficiency of the evidence to support two firearm enhancements, the trial court's calculation of his offender score, and its imposition of discretionary legal financial obligations (LFOs).

¶ 2 In the published portion of this opinion, we address his contention that there was insufficient evidence to support the firearm enhancements imposed because the State failed to present evidence that he possessed an operable firearm at the time of his crimes. While the jury was required to find (and did) that Mr. Tasker possessed a real firearm, the State was not required to produce further evidence that the firearm was operable at the time of the crimes.

¶ 3 In the unpublished portion of this opinion, we address Mr. Tasker's contentions that the trial court abused its discretion in refusing to treat the first degree kidnapping and attempted first degree robbery as the same criminal conduct in calculating his offender score and that it erred or abused its discretion in imposing LFOs. We also address several issues raised by Mr. Tasker in a pro se statement of additional grounds. We exercise our discretion to review the LFO issue, remand with directions to strike the discretionary LFOs, and otherwise affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 4 On June 13, 2013, Gloria Campos–White was sitting in her parked car outside of Selah Intermediate School, waiting for her daughter's basketball practice to finish, when a man walked up to her open driver's side window, pointed a gun in her face, and demanded she give him her purse. She complied, telling him as she handed him the purse that she did not have any money.

¶ 5 After the man had her purse, he reached for the handle of the rear passenger door and after struggling with it for a moment, was able to get into the back seat, where he ordered Ms. Campos–White to drive. She would later testify that he still had the gun when he entered the car, and that although she did not see it again, “at one point when we were actually driving I thought I heard the clicking of something behind my head.” Report of Proceedings (RP) at 430–31.

¶ 6 The man gave Ms. Campos–White directions as she drove, but he did not tell her where they were going. She recalls driving “up a curved hill” and that they traveled through orchards. RP at 433. But not being familiar with the Selah area, she did not know where they were. She believed that he was directing her to an undeveloped area, and that “there [was] nothing back there for him to be needing to take me up there.” RP at 448.

¶ 7 Not knowing his intentions, Ms. Campos–White felt desperate to get away. Without slowing her car, she waited for a gap in oncoming traffic, unbuckled her seatbelt, opened the car door, and jumped out of the moving vehicle. With no one at the wheel, her car soon struck a bank on the side of the road and flipped on its side. Residents of a nearby home who heard the crash ran out to stop traffic and attend to Ms. Campos–White. They saw a man climb out of a passenger side door of her car and run off. In addition to cuts, bruises, and a sprained ankle, Ms. Campos–White sustained a severe concussion that led to the loss of her ability to taste or smell.

¶ 8 The man who abducted her was not found in the area, though a single shoe that did not belong to the Campos–White family was found near the hatchback of the car. No firearm was ever recovered.

¶ 9 Ultimately, based on video surveillance recorded by the Selah school, Ms. Campos–White's identification, and physical evidence recovered from the scene of the crash, Christopher Tasker was arrested and charged with first degree kidnapping, attempted first degree robbery, and first degree unlawful possession of a firearm. The State sought firearm enhancements in connection with both the first degree kidnapping and the attempted first degree robbery charges.

¶ 10 At trial, Ms. Campos–White identified Mr. Tasker as the man who kidnapped and attempted to rob her. She described the gun that Mr. Tasker used, explaining it was a dark color and small enough to be held with one hand. She admitted during the State's examination that she did not know much about guns or firearms, and testified that she had “never seen a gun in real life.” RP at 451. She also admitted that she would not know the difference between a revolver and semiautomatic handgun by name, but knew that they looked different. She never wavered from her testimony that Mr. Tasker had been armed with a gun, however. Asked on cross-examination whether there was “[a]ny chance it could've been anything besides a handgun,” she answered, “No.” RP at 452.

¶ 11 At the close of the State's case, Mr. Tasker moved to dismiss the request for firearm enhancements and the charge of unlawful possession of a firearm. Relying on two decisions of the Washington Supreme Court and one of Division Two of our court,¹ he argued that the State was required, but failed, to prove the firearm testified to by Ms. Campos–White was operable. The trial court reserved ruling, explaining that if the jury answered yes to the firearm special verdicts, it would hear further from Mr. Tasker.

¶ 12 The defense devoted its entire closing argument to urging the jury that there was reasonable doubt whether Mr. Tasker had been armed with a real firearm. It emphasized Ms. Campos–White's nonspecific description of the gun, her inexperience with firearms, and an asserted hesitancy in her testimony. It also told the jury that the purpose of the special verdicts they were being asked to complete was because the State wanted “more” than just conviction of the crimes and was “asking for more than they can prove.” RP at 760. The jury nonetheless answered yes to the special verdicts asking whether Mr. Tasker was armed with a “firearm” as defined by Washington law, in addition to finding Mr. Tasker guilty of the crimes charged. Clerk's Papers (CP) at 41, 43.

¶ 13 In a hearing on a posttrial motion to set aside the jury's verdict on the firearm possession findings, the trial court informed the parties that it had concluded after reading cases cited by the parties that Division Two of the Court of Appeals “seems to focus more on the question of has the prosecution proven that the gun was operable,” Division One “appears to focus more on the question of was the gun real,” a “slightly different question[,]” and, “[u]nfortunately, there are no cases from Division [Three]. I have no idea what Division [Three] would do with the facts that we have.” RP at 792. The court denied the motion, “recognizing that it's a razor thin issue and it could go either way on appeal.” RP at 806.

¶ 14 At sentencing, Mr. Tasker's lawyer asked the court to treat the attempted robbery and the kidnaping as the same criminal conduct for purposes of calculating an offender score. The court refused, noting that the robbery was completed before Mr. Tasker entered the vehicle.

¶ 15 Also at sentencing, Mr. Tasker was ordered to pay substantial restitution for Ms. Campos–White's medical expenses and the damage to her car; the undisputed total amount was $142,865.95. The court also imposed both mandatory and discretionary LFOs, asking Mr. Tasker about his prior work history and ability to pay. Despite the court's own observation that Mr. Tasker would likely never be able to repay the restitution, it imposed $600 in discretionary costs.

¶ 16 Mr. Tasker appeals.

ANALYSIS

I. Sufficiency of evidence: possession of a firearm

¶ 17 Mr. Tasker's base sentences on his three convictions run concurrently, with the longest being his 144 month sentence on the first degree kidnapping count. The firearm enhancement terms (60 months for the kidnapping and 36 months for the attempted robbery) run consecutive to his base sentence, increasing his sentence by eight years.

¶ 18 Mr. Tasker's argument that the State failed to meet a burden of proving he wielded an operable firearm during the crimes turns first and foremost on an issue of statutory construction: whether evidence of operability at the time of the crime is required because the applicable statutory definition of “firearm” includes language that it is a weapon or device “from which a projectile or projectiles may be fired.

” RCW 9.41.010(9) (emphasis added). He relies on our Supreme Court's 2008 decision in Recuenco, 163 Wash.2d 428, 180 P.3d 1276, in which the court's reversal of a firearm enhancement did not turn on whether the firearm used was operable, but in which the court nonetheless stated, “We have held that a jury must be presented with sufficient evidence to find a firearm operable under [the statutory definition of “firearm”] in order to uphold the enhancement.” 163 Wash.2d at 437, 180 P.3d 1276 ((citing Pam, 98 Wash.2d 748, 659 P.2d 454 )). He also cites Division Two's 2010 decision in Pierce, which relied on Recuenco to reverse firearm enhancements it determined were unsupported by evidence that the handgun in Pierce's possession was “operable” and “capable of firing a projectile.” 155 Wash.App. at 714–15, 230 P.3d 237. The Pierce court also partially rejected the State's argument that it need not produce and test a weapon in order to support a firearm enhancement, stating:

This may be true when there is other evidence of operability, such as bullets found, gunshots heard, or muzzle flashes. Although the

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