IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 74402-0-1 CZ) cz, ) Crl Zzt. Respondent, ) -13 rry ,i ) DIVISION ONE C)
v. ) to
) Zza 11) CHRISTOPHER VON KEITH COWAN, ) UNPUBLISHED OPINION Cip ) Appellant. ) FILED: April 9, 2018 01
) MANN, J. — Christopher Cowan appeals his convictions for first degree assault,
first degree robbery, and second degree attempted murder for the robbery and stabbing
of Michael Brenick. Cowan contends that(1) he was denied due process due to an
impermissibly suggestive photomontage,(2) the trial court erred in admitting propensity
evidence that he had a knife in his possession at the time of his arrest,(3) the pattern
jury instruction defining a reasonable doubt is unconstitutional,(4) the prosecutor
improperly shifted the burden of proof during rebuttal,(5) several prior out-of-state
convictions were improperly included in his offender score, and (6) the trial court failed
to determine whether his convictions for assault and robbery were the same conduct for
purposes of his offender score. No. 74402-0-1/2
We affirm Cowan's convictions. We remand for resentencing, however, because
several of the prior out-of-state convictions were improperly included in Cowan's
offender score and because the trial court failed to determine whether attempted murder
and robbery were the same criminal conduct for the purpose of determining Cowan's
offender score.
FACTS
At approximately 11:40 p.m. on January 17, 2015, Domino's Pizza delivery driver
Brenick left Domino's to make a delivery and found a man sitting in his car. The man
wore a dark heavy winter coat and a backpack. Brenick grabbed the man by his coat,
pulled him out of the car, and tried to hold him with one hand while he called the police
with the other. Moments later, after he saw a folding knife with a four-inch blade,
Brenick realized something was wrong—he reached down and felt his "intestines"
sticking out of his stomach. As Brenick ran back to Domino's, he saw the man run into
the Park Ballinger apartment omplex behind Domino's. Brenick's coworkers called the
police at 11:42 p.m. The polic arrived minutes later and administered emergency aid
to Brenick. Brenick was then ransported to Harborview Medical Center. At the
hospital, doctors found a chev on-shaped wound eight centimeters long above his belly
button and a stab wound four nches long and four inches deepin his armpit.
Meanwhile, in the Park Ballinger apartment complex, Cale Stasiak was sitting on
his apartment's stairwell when a man wearing a winter jacket and a backpack
approached. The man moved uneasily at a "sluggish jog" and stopped just over an
arm's length away from Stasi k. Stasiak saw him holding a manila envelope in one
hand and a knife in the other. After the man knocked at the apartment across from
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Stasiak's, he sat down next to tasiak. He told Stasiak that "somebody had just tried to
rob him for his weed," and ask d if he could borrow Stasiak's cell phone to call a cab.
Stasiak did not want to lend th man his phone so he called a cab for him. He called
twice—once at 11:48 p.m. and again at 11:50 p.m.—but got no answer. By the second
call, Stasiak walked away fro the man so he could call his friend, and as he did so he
saw the man take off his coat, mpty its contents into the backpack, and lay the coat
down on the stairwell. The m n placed the manila envelope in an ashtray and set a
scale down. Stasiak then turn d his back to make the call. When he turned around
again a minute later Stasiak s w the man running north out of the apartment complex.
Moments after this, police offi I. rs, led by a police dog, appeared.
The canine unit tracked the suspect from the apartment complex, but lost the trail
in the vicinity of a Circle K con enience store down the street. They collected the man's
winter coat, scale, and manila nvelope from the apartment's steps. The coat was gray
with a red trim, and the manila envelope, which contained Brenick's car insurance
documents, was torn. The pol ce eventually found a fingerprint on the envelope that
matched Cowan's left thumbp int.
After losing the suspect s trail, the police investigated the Circle K convenience
store. The police learned the tore clerk had served a customer around midnight. The
clerk remembered that this cu tomer told him he was unable to get a taxi and asked a
young couple in the store for ride.
The next morning, on J nuary 18, another employee at the Circle K found a
pawn slip with Cowan's name n it on the floor in front of the lottery-ticket machine. The
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pawn slip was for a transactio on January 17, 2015, at the Cash America pawn shop
on 170th Avenue and Aurora.
Edmonds Police Depart ent Sergeant Robert Baker obtained three surveillance
videos from Cash America. T e first video, taken in the early afternoon on January 17,
showed a man wearing a back ack and a very similar winter coat to the one that was
recovered from Stasiak's apa ment. The second video, taken on the evening of
January 8, showed a man we ring a backpack over that same winter coat. The third
video, taken a few days after tte stabbing, on January 20, showed the same man with
the same backpack but withou the winter coat.
The police used the pa n slip and Cash America's surveillance videos to create
a photomontage to show Bren ck and Stasiak. They obtained Cowan's driver's license
photo and five other photos of men who matched the description that Stasiak gave
them: "a dark skinned black m le, short hair, thin mustache."
On January 20, Sergea t Baker showed the photomontage to Stasiak, who
positively identified Cowan. P r police instruction, Stasiak looked at the photos one at a
time. He quickly identified Co an. He was "positive" that his identification was correct:
his confidence level was "ten ut often. Brenick, the victim, who was in the hospital
under "a heavy load of drugs," could not identify Cowan.
Cowan was arrested o January 21, 2015. Cowan was charged with attempted
first degree murder, first degr e assault, and first degree robbery. Each count carried a
deadly weapon enhancement.
A jury found Cowan gui ty as charged for the assault and the robbery, however,
on the attempted first degree urder charge, it found Cowan guilty of the lesser offense
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of attempted second degree murder. The jury found that Cowan was armed with a
deadly weapon during these cr mes. Cowan appeals.
ANALYSIS
Photomontage
Cowan contends first th t the photomontage was impermissibly suggestive and
consequently that the trial cou 's denial of his motion to suppress, and subsequent in-
court identification, denied his ight to due process. We disagree.
We review a trial court' denial of a motion to suppress by determining whether
substantial evidence supports he court's factual findings and whether those findings
support the court's conclusion of law. Unchallenged findings are verities on appeal.
State v. Ross, 106 Wn. App.8 6, 880, 26 P.3d 298 (2001). Cowan does not challenge
the trial court's findings. Cons quently, we must determine whether those findings
support the trial court's conclu ions of law. We review conclusions of law de novo.
Ross, 106 Wn. App. at 880.
An out-of-court photogr phic identification violates due process if it is so
impermissibly suggestive as t give rise to a "substantial likelihood of irreparable
misidentification." State v. Vic ers, 148 Wn.2d 91, 118,59 P.3d 58 (2002). The
defendant must prove that the procedure was "impermissibly suggestive" to establish a
violation. Vickers, 148 Wn.2d at 118. A suggestive identification procedure is one that
"directs undue attention to a p rticular photo." State v. Eacret, 94 Wn. App. 282, 283,
971 P.2d 109 (1999). If the d fendant proves that the procedure was suggestive, then
this court determines whether, based on the totality of the circumstances, the procedure No. 74402-0-1/6
created a substantial likelihoo of irreparable misidentification. Vickers, 148 Wn.2d at
118.
Cowan argues that the photomontage was impermissibly suggestive in three
ways. First, he argues that it as suggestive because Stasiak described the suspect as
a "dark skinned black male,' nd out of the six people in the photomontage, Cowan had
the darkest skin complexion. These facts, he argues, are similar to State v. Burrell 28
Wn. App. 606, 610-11, 625 P. d 726 (1981). In Burrell, we held that a photomontage
was suggestive when an eye itness described the suspect as having a "frizzy Afro
hairstyle" and the defendant's photograph was the only one that showed an Afro out of
nine photos. The eyewitness as shown nine different photos, and while all of the
individuals' skin colors were c mparable, none of them closely resembled Burrell.
Burrell, 28 Wn. App. at 610.
Burrell is distinguishabl . Stasiak described the suspect as a "dark skinned black
male, short hair, thin mustach ." The photomontage given to Stasiak contained six
photos of African American m n with thin mustaches, short hair, and varying
complexions. Cowan's photo hows darker skin, but this feature does not direct undue
attention to his photo like a "fn zy Afro hairstyle" would when compared against eight
different hairstyles. As the St te points out, before Stasiak looked through the
photomontage, he was inform d that the photos "do not always show the true
complexion of a person; it may be lighter or darker than shown." The trial court also
recognized that Cowan's skin complexion was darker than his photo showed:"Cowan[,]
who has been present at both days of this hearing[,] appears to me to be darker
-6- No. 74402-0-1/7
complected [sic] than the phot that is in Exhibit 4. His skin color is more similar to the
still photos that are reflected i Exhibit 6, 7 and 8."
Second, Cowan argues that his photo was one of two that showed teeth, the only
one that showed a gap in the eeth, and the only one that showed teeth without gold
dental crowns. Cowan relies n State v. Kinard, 109 Wn. App. 428, 431, 433-34, 36
P.3d 573(2001), and State v. raweek, 43 Wn. App. 99, 103, 715 P.2d 1148 (1986).
The Kinard court held that a photomontage was impermissibly suggestive when the
eyewitness described the sus ect as a "large black man with gapped buckteeth" and
only one of six photos showed a man with prominent gapped teeth. 109 Wn. App. at
431,433-34. Similarly, the Tr week court held that an in-person lineup was suggestive
when the eyewitness describe the suspect as blond and Traweek was the only blond
person in the lineup. 43 Wn. pp. at 103.
This case is readily dist nguishable from Kinard and Traweek. Here, Cowan's
teeth do not direct undue atte tion to his photo. First, Stasiak described the suspect as
a "dark skinned black male, s ort hair, thin mustache." Stasiak did not mention teeth.
Stasiak only mentioned teeth fter he identified Cowan, which distinguishes Kinard and
Traweek, both cases in which he eyewitnesses gave the police the distinguishing
feature that later singled out t e defendants in either the lineup or the photomontage.
As this court explained in Burr 11, "when at least one witness'[s],description refers to a
particular and somewhat disti ctive characteristic ... and the defendant's is the only
photograph with such a chara teristic, the risk that a misidentification will occur based
solely or primarily upon that c aracteristic is substantially enhanced." 28 Wn. App. at
611.
-7- No. 74402-0-1/8
Following the rational o Burrell, because Stasiak did not describe teeth as
Cowan's distinguishing featur to the police before reviewing the photomontage, the risk
of misidentification based on t at feature was small. Second, the presence or absence
of teeth in the photomontage! a minor difference that does little to distinguish the
photos. In his photo, Cowan's lips are partially open and a gap in his teeth is apparent.
The men's facial features, ho ever, are apparent; all six men have similar facial
features, skin complexions, ey colors, facial hair, and hairstyles. Cowan is correct that
he is the only man with a gap n his teeth and without gold dental caps. But he is
incorrect that, in light of the en ire photomontage, this difference draws undue attention
to his photo.
Third, Cowan argues that Sergeant Baker tainted Stasiak's in-court identification
of Cowan when he confirmed hat Stasiak picked the correct photo out of the
photomontage. At trial, Stasiak testified that Baker confirmed his choice, but Baker
testified that he did not. Cow n provides no evidence besides a defense expert's
testimony at the suppression earing for the proposition that confirming an eyewitness's
identification after it was mad taints any later in-court identification. We find this
argument unpersuasive. The ourt made its ruling to admit the identification based on
the evidence presented at the suppression hearing. At that hearing, Sergeant Baker
testified that he did not confir Stasiak's pick.
We conclude that Cow n's photo was not unduly suggestive and that the court
did not abuse its discretion in enying Cowan's motion to suppress.
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Admission of the Knife
Cowan next contends hat the trial court erred in admitting ER 404(b) evidence
that he had a knife in his pos ession at the time of his arrest because there was no
causal link between the knife nd the crime. We disagree.
In his January 18, 201 incident statement, and January 28, 2015 recorded
interview with an Edmonds d tective, Stasiak stated that the individual he encountered
during the evening of January 17, 2015, was holding an open folding knife with a black
or dark handle. Cowan was arrested on January 21, 2015. During a search incident to
the arrest, the police recovered a black folding knife in Cowan's pocket. Cowan moved
during pretrial to suppress evi ence that he was in possession of a knife pursuant to ER
404(b). After argument, the tr al court concluded:
Here we have a knife f und on the defendant three days after the crime that is a dark-handled f Iding knife. That knife essentially had no forensic evidence on it. It could have been cleaned. Maybe it wasn't the knife in question. But we do h ye two witnesses who say that the victim was stabbed with a dark-ha died folding knife. That makes the testimony relevant. Unlike Hartze I, I think this is totally different. I'll deny [Cowan's motion to suppress].
At trial, Brenick testifie that during his scuffle with his assailant he saw him
holding a knife, "I see him hol ing the knife close to his body and I felt tired and I saw
the knife and that's when I kn w something was seriously wrong." Brenick testified that
it was a "folding knife about fo r inches in length." Brenick could not remember the
color of the knife. Consistent ith his initial interviews, Stasiak also testified at trial that
the person he encountered ne r his apartment was holding a folding knife. Stasiak did
not testify to the size or color f the folding knife. Emergency room Dr. Hugh Foy
testified that he treated Brenic and that Brenick's stab woundsmere 3 to 4 inches
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deep. However, after forensic testing, no blood was found on the knife recovered from
Cowan incident to his arrest.
Cowan contends that e idence that he possessed a knife at the time of his arrest
was improperly admitted beca se it was used to show he had the propensity to commit
crimes with a knife. Cowan an ues that the trial court abused its discretion by admitting
the evidence which should ha e been excluded under ER 404(b). Washington's ER
404(b) provides:
Evidence of other crim , wrongs, or acts is not admissible to prove the character of a person i order to show action in conformity therewith. It may, however, be admi sible for other purposes, such as proof of motive, opportunity, intent, pre aration, plan, knowledge, identity, or absence of mistake or accident.
This court reviews deci ions to admit evidence for abuse of discretion.
State v. Luvene, 127 Wn.2d 6 0, 708, 903 P.2d 960(1995). "A court abuses its
discretion if it is exercised on ntenable grounds or for untenable reasons."
State v. Hartzell, 156 Wn. Ap 918, 930, 237 P.3d 928 (2010).
ER 404(b) is not limited to bad or illegal acts, instead, the rule bars any acts used
to show the character of a per on to prove that the person acted in conformity with it on
a particular occasion. State v. Eve bod alksabout, 145 Wn.2d 456, 466, 39 P.3d 294
(2002). Thus, while possessi n of a knife may be legal and thus not "bad" this does not
mean that legal possession c n be used to demonstrate propensity. Evidence of
weapons entirely unrelated to he crime is inadmissible. State v. Jeffries, 105 Wn.2d
398, 412, 717 P.2d 722, cert. enied, 479 U.S. 922(1986). But "if the jury could infer
from the evidence that the we pon could have been used in the commission of the
crime, then evidence regardin the possession of that weapon is admissible." Luvene,
-10- No. 74402-0-1/11
127 Wn.2d at 708. Evidence sed for this purpose need not meet the high standard of
similarity required for "signatu e crimes." Hartzell, 156 Wn. App. at 932.
In Luvene, for example it was sufficient to show that the defendant possessed a
handgun of the same color an, caliber as the one used in the crime. Luvene, 127
Wn.2d at 708. Similarly, in Hdrtzell, this court held that admitting evidence that the
defendants owned guns did n t violate ER 404(b) when the guns were offered to show
that the defendants owned th guns that fired the bullets that were found at the scene,
not to show that the defendan s committed the crime in conformity with being gun users.
153 Wn. App. at 152. Cowan attempts to distinguish his case from Hartzell by arguing
that the presence of a forensi link between the defendants' guns in Hartzell and the
absence of a forensic link be een the knife he was carrying and the knife used to stab
Brenick is dispositive. That th re was no forensic link here, he contends, means that
the court violated ER 404(b) hen it admitted evidence that he was carrying a knife
when he was arrested becaus the knife's only relevance was propensity—that he was
a knife-carrying person.
Cowan's contention fail Here, the evidence was admissible because it was
highly relevant. It was directly probative of the crime charged—a stabbing with a folding
knife. At the suppression hea ing, there were three key pieces of evidence before the
court:(1)"two witnesses desc ibe[d] a knife, dark handled, appeared to be a folding
knife,"(2)"[t]he defendant wa found with a folding knife with a dark handle in his
pocket three days after the st bbing," and (3) no forensic evidence was found on the
knife recovered from Cowan. hile the lack of forensic evidence is highly relevant, this
goes to the weight of the evid nce, not its admissibility. See State v. Duree, 52 Wn.2d
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324, 328, 324 P.2d 1074(1958)(hesitancy of witness to identify knife as the exact knife
used by the defendant went only to the weight to be given the testimony and not to the
issue of its admissibility). Because a jury could infer, based on the first two facts, that
the knife Cowan was arrested with was used to stab Brenick, the trial court did not err in
denying Cowan's motion to suppress the evidence. Luvene, 127 Wn.2d at 708.
Cowan places great weight on the failure of the State to elicit testimony at trial
from either Brenick or Stasiak identifying the color of the folding knife. Cowan further
emphasizes the State's seeming concession during its closing rebuttal argument that
the knife in Cowan's possession may not have been the knife used in the stabbing:
But the knife the police collected from the defendant on the 21st I would suggest is not the knife that was used on Michael Brenick. My suggestion is that like the coat that got shed, the knife that was actually used on Brenick got tossed. You don't want to have any evidence on you that is going to connect you directly to the assault.
Cowan's reliance on the trial testimony and closing argument fails for at least
three reasons. First, while the witnesses at trial did not identify the color of the knife,
both witnesses described a folding knife, and Brenick testified that it was approximately
4 inches long—which was consistent with the depth of the stab Wounds described by
Dr. Foy. While there was no blood found on Cowan's knife, this goes to the weight of
the evidence; the jury could still infer that the 4-inch folding knife found in Cowan's
possession was the knife used in the stabbing.
Second, while the State appeared to minimize the connection between the knife
found in Cowan's possession and the knife used in the stabbing, this statement was
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argument and, as the jury was instructed, argument is not evidence.' Jurors are
presumed to follow the court's instructions. State v. Emery, 174 Wn.2d 741, 766, 278
P.3d 653(2012). Moreover, Cowan did not object, nor move for a mistrial after the
State's rebuttal argument. The trial court is not obligated to declare a mistrial sua
sponte.
Finally, even if the evidence was improperly admitted, any error was harmless.
Erroneous admission of ER 404(b) evidence is not of constitutiqnal magnitude and
"requires reversal only if the error within reasonable probability, materially affected the
outcome." Everybodytalksabout, 145 Wn.2d at 468-69. The error is harmless "if the
evidence is of minor significance compared to the overall evidence as a whole."
Everybodytalksabout, 145 Wn.2d at 468-69.
Here, the State's closing argument minimized the importance of the knife found
in Cowan's possession by admitting that without forensic evidence it may not have been
the knife used in the stabbing. In contrast, the remaining evidence was strong. Both
Brenick and Stasiak identified Cowan from the photomontage. the police tracked the
assailant to the Ballinger Park apartments where Stasiak testified that Cowan left
behind his jacket and an envelope with Cowan's fingerprint on it that contained
insurance papers belonging to Brenick. Given the strength of the State's case
implicating Cowan, there is no reason to believe that the outcome would have been
different if evidence of the knife found in Cowan's possession had been excluded.
The trial court did not abuse its discretion.
1 See Clerk's Papers at 60-61 (jury instruction 1). -13- No. 74402-0-1/14
Reasonable Doubt Instruction
Cowan next argues that the jury instruction defining "a reasonable doubt" is
unconstitutional. We disagree.
Jury instruction 5 defined a reasonable doubt as "one for which a reason exists
and may arise from the evidence or lack of evidence." Jury instruction 5 was taken
directly from WPIC 4.01.2 Our Supreme Court has directed trial courts to use only
WPIC 4.01 to instruct juries on reasonable doubt. State v. Bennett, 161 Wn.2d 303,
318, 165 P.3d 1241 (2007).
Cowan attempts to circumvent Bennett by arguing that use of the language "a
reason" in WPIC 4.01 undermines the presumption of innocence and the burden of
proof because it requires the jury to articulate a reason for having reasonable doubt.
We recently rejected this same argument in State V. Lizarraga, 191 Wn. App. 530, 567,
364 P.32 810 (2015); see also, State v. Parnel, 195 Wn. App. 325, 328-29, 381 P.3d
128, review denied, 186 Wn.2d 1031, 385 P.3d 107 (2016).
The trial court did not err in giving the required pattern jury instruction for defining
reasonable doubt.
Prosecutorial Misconduct
Cowan next contends that he was denied his right to a fair trial because the
prosecutor shifted the burden of proof during rebuttal closing argument. We disagree.
During rebuttal, the prosecutor addressed the defense counsel's failure to
address Cowan's winter coat:"One thing I kept waiting for is an explanation for the coat.
2 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01 (4th ed. 2016)(WPIC).
-14- No. 74402-0-1/15
How do you counter that coat?" Cowan objected that the argument improperly shifted
the burden of proof. The trial court overruled the objection, stating "It's not burden
shifting." The prosecutor continued by pointing out that the winter coat was collected
from the Ballinger Park apartments, arguing "You have multiple videos of the defendant
wearing that coat prior to the assault."
In order to prevail on a claim for prosecutorial misconduct "the defendant bears
the burden of proving that the prosecutor's conduct was both improper and prejudicial."
Emery, 174 Wn.2d at 756. Once the defendant demonstrates that a prosecutor's
statements are improper, the standard for demonstrating prejudice depends on whether
the defendant objected to the comments. Where, as here, the defendant objected, the
defendant must show "that the prosecutor's misconduct resulted in prejudice that had a
substantial likelihood of affecting the jury's verdict." Emery, 174 Wn.2d at 760.
Cowan argues that the prosecutor's statement was misconduct because it shifted
the burden of proof to him to present exculpatory evidence. Cowan relies primarily on
State v. Cleveland, 58 Wn. App. 634,647, 648-49, 794 P.2d 546(1990)(finding
misconduct but not a substantial likelihood that the misconduct affected the jury verdict).
In Cleveland, we held that the prosecutor committed misconduct when he stated in
rebuttal that "Mr. Cleveland was given a chance to present any and all evidence that he
felt would help you decide. He has a good defense attorney, and you can bet your
bottom dollar that Mr. Jones would not have overlooked any opportunity to present
admissible, helpful evidence to you." 58 Wn. App. at 647.
But unlike Cleveland, the prosecutor did not suggest that Cowan should have
presented evidence; rather, the prosecutor suggested that the evidence presented did
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not support the defense's theory of the case. Rhetorically asking how the coat fit into
the defense's theory of the case was not improper. A prosecutor can certainly "argue
that the evidence does not support the defense theory." State v. Russell, 125 Wn.2d
24, 87, 882 P.2d 747(1994). The prosecutor here simply pointed out the discrepancy
between Cowan's story and the evidence.
Because this was not misconduct, we do not address Cowan's argument
regarding prejudice.
Cumulative Error
Cowan contends that cumulative error deprived him of a right to a fair trial. He
cites four errors whose combined effect constituted cumulative error:(1)the suggestive
photomontage,(2) the admission of his knife,(3) the flawed WPIC 4.01 jury instruction
on reasonable doubt, and (4) prosecutorial misconduct.
Under the cumulative-error doctrine a court may reverse a defendant's conviction
when the combined effect of errors during trial effectively denied the defendant a right to
a fair trial, even if each error standing alone would be harmless. But when "the errors
are few and have little or no effect on the trial's outcome," the doctrine does not apply.
State v. Venegas, 155 Wn. App. 507, 520, 228 P.3d 813(2010). Here, there were not
multiple and separate errors.
Offender Score
The trial court counted 11 North Carolina convictions toward Cowan's
Washington offender score: 8 convictions for breaking or entering, 1 conviction for
attempted first degree burglary, 1 conviction for larceny, and 1 conviction for financial
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card theft. Cowan next contends that his out-of-state convictions should not have been
counted in his offender score. We agree in part.
Washington's Sentencing Reform Act's(SRA)standard sentencing ranges are
calculated according to the seriousness of the crime and the defendant's offender
score. RCW 9.94A.505, .510, .520,.525; State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d
187(2014). The offender score is the sum of points accrued as a result of prior
convictions. RCW 9.94A.525. "Out-of-state convictions for offenses shall be classified
according to the comparable offense definitions and sentences provided by Washington
law." RCW 9.94A.525(3). If a foreign conviction is "comparable" to Washington
offense, then it is included in the defendant's offender score. RCW 9.94A.525(3).
We review the trial court's calculation of a defendant's offender score de novo.
Olsen, 180 Wn.2d at 472. The State bears the burden of proving the existence and
comparability of the foreign conviction. Olsen, 180 Wn.2d at 472.
Analysis of the comparability of foreign convictions involves a two-part test that
looks first at the legal comparability and second at the factual comparability:
Under the legal prong, courts compare the elements of the out-of-state conviction to the relevant Washington crime. If the foreign conviction is identical to or narrower than the Washington statute and thus contains all the most serious elements of the Washington statute, then the foreign conviction counts towards the offender score as if it were the Washington offense. If, however, the foreign statute is broader than the Washington statute, the court moves on to the factual prong—determining whether the defendant's conduct would have violated the comparable Washington statute. Olsen, 180 Wn.2d at 472-73 (internal citations omitted).
In applying the factual prong, we will "consider only facts that were admitted,
stipulated to, or proved beyond a reasonable doubt." Olsen, 180 Wn.2d at 473-74.
-17- No. 74402-0-1/18
The effect of a guilty plea is assessed under the law of the jurisdiction where the plea
was entered. Olsen, 180 Wn.2d at 478-79(assessing the effect of a plea to California
conviction under California law). In North Carolina, when a defendant pleads guilty to
the indictment, the defendant admits "all of the facts alleged in the indictment." State v.
Thompson, 314 N.C. 618, 336 S.E.2d 78, 81 (1985).
A. Breaking or Entering: 8 Counts
Breaking or entering in North Carolina is defined as "Any person who breaks or
enters any building with intent to commit any felony or larceny. . ." N.C. GEN. STAT. §
14-54(a). The most similar statute in Washington is second degree burglary, which
requires that a person enter or remain unlawfully in a building "with intent to commit a
crime against a person or property therein." RCW 9A.52.030(1)(emphasis added).
Because, as the State concedes, a person could theoretically enter a building to commit
a felony that was not against a person or property, breaking or entering under North
Carolina law is broader than second degree burglary. Thus, under the legal prong,
breaking or entering is not comparable to burglary.
Turning to the factual prong, the State further concedes that in five of Cowan's
North Carolina convictions, the record does not establish findings or admissions
concerning the nature of the felony. We accept the State's concession that those five
convictions are not comparable under Washington law.
The State maintains, however, that three of the convictions for breaking and
entering with the intent to commit larceny are factually comparable to second degree
burglary in Washington. These are the crimes committed July 4, 2003, June 9, 2003,
and November 8, 2008. We agree with the State.
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All three indictments allege that Cowan broke and entered into a building with the
intent to commit larceny. In North Carolina, "in felonious breaking or entering cases, as
in burglary cases,'when the indictment alleges an intent to commit a particular felony,
the State must prove the particular felonious intent alleged.'" State v. Silas, 360 N.C.
377, 383,627 S.E.2d 604,608(2006)(quoting State v. Wilkinson, 344 N.C. 198, 222,
474 S.E.2d 375, 388 (1996)). By pleading guilty to these charges, Cowan, therefore,
admitted that he broke and entered with a specific intent—to commit larceny. This act,
if done in Washington, would be factually comparable to second degree burglary. RCW
9A.52.030(1). The three convictions for breaking and entering With intent to commit
larceny were properly counted toward Cowan's offender score.
B. Attempted First Degree Burglary: 1 Count
Cowan was convicted of attempted first degree burglary, based on his guilty plea
to an indictment charging first degree burglary for a crime committed on September 14,
2004. Because North Carolina courts have not considered whether the requisite felony
must be one against a person or property, the State concedes that the record does not
establish that this crime was legally or factually comparable to a Washington attempted
burglary. We accept the State's concession.
C. Larceny: 1 Count
Cowan was indicted and pleaded guilty in North Carolina for felonious breaking
and entering and felonious larceny for stealing property worth $2,800.98 on September
30, 2004. Under North Carolina law, larceny is a felony without regard to the value of
the property if the larceny was committed pursuant to the commission of a crime of
breaking or entering a building. N.C. GEN. STAT. § 14-72(b)(2). Under Washington law
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as it existed in 2004, theft of property worth more than $1500 was first degree theft.3
The State concedes that because the North Carolina theft statute is broader than
Washington's statute, the crimes are not legally comparable.
The State argues, however, that this crime is factually comparable to the 2004
first degree theft statute, former RCW 9A.56.030(1)(a), which stated that "A person is
guilty of theft in the first degree if he or she commits theft of[p]roperty or services which
exceed[s] one thousand five hundred dollars in value." We agree with the State.
In North Carolina when a defendant pleads guilty to larceny and the indictment
includes the value of the stolen property, that plea constitutes an admission of the value
of property stolen. State v. Hendricks, 138 N.C. App. 668, 531 S.E.2d 896, 899(2000).
Cowan was indicted and pleaded guilty to breaking and entering and felonious larceny
for the stealing property worth $2800.98. Cowan's September 30, 2004, conviction for
felony larceny is factually comparable to first degree theft.
D. Financial Card Theft
Finally, Cowan was convicted of financial transaction card theft in violation of
N.C. Gen. Stat. § 14-113.9.4 We accept the State's concession that the North Carolina
crime is not legally comparable to any Washington crime and that the record does not
support that the crimes were factually comparable.
In summary, we accept the State's concession that 7 of the 11 convictions were
improperly included in Cowan's offender score. We find that three counts of breaking
3 Under current Washington law, theft of property worth more than $750 and less than $5000 would constitute second degree theft. RCW 9A.56.040(1)(a). 4 This crime was committed on October 26, 2004.
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and entering with intent to commit a larceny and one count of felony larceny were
properly included in Cowan's offender score.
Same Criminal Conduct
Cowan argues finally that his convictions for assault and robbery are the same
criminal conduct for the basis of his offender score. Because the trial court did not
address this issue, we remand for consideration.
When a person is sentenced for two or more current offenses, "the sentence
range for each current offense shall be determined by using all other current and prior
convictions as if they were prior convictions for the purpose of the offender score"
unless the crimes involve the "same criminal conduct." RCW 9.94A.589(1)(a). "Same
criminal conduct" means crimes that involved the same victim, were committed at the
same time and place, and involved the same criminal intent. RCW 9.94A.589(1)(a).
A jury found Cowan guilty of first degree robbery, first degree assault, and
second degree attempted murder. It also found that Cowan was armed with a deadly
weapon during the commission of each crime. At sentencing, Cowan unsuccessfully
argued for vacating the assault conviction as the lesser crime of attempted murder and
asked the court to find that the robbery and the attempted murder charge were the
same criminal conduct. The trial court vacated the attempted second degree murder
charge in favor of the more serious first degree assault charge. The trial court did not,
however, address whether the assault and the robbery were the same criminal conduct.
Whether two crimes constitute the same criminal conduct involves a
determination of fact as well as the exercise of trial court discretion. State v. Nitsch, 100
Wn. App. 512, 519-20, 997 P.2d 1000(2000). "A trial court abuses its discretion when it
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fails to exercise its discretion, such as when it fails to make a necessary decision."
State v. Stearman, 187 Wn. App. 257, 265, 348 P.3d 394 (2015). As we have
previously explained, "Trial courts should make a finding on same criminal conduct at
sentencing when requested to do so." State v. Salinas, 169 Wn. App. 210, 225, 279
P.2d 917(2012)(remanding where the trial court failed to address defendant's request
to treat three convictions for the same criminal conduct for sentencing purposes). On
remand, the court should consider whether or not Cowan's convictions for assault and
robbery are the same criminal conduct. The trial court should consider the question in
light of State v. Chenoweth, 185 Wn.2d 218, 220, 370 P.3d 6(2016).
Statement of Additional Grounds
Cowan raises two additional substantive issues in his pro se statement of
additional grounds under RAP 10.10. He argues that his rights to confrontation and due
process were violated by the State's expert's testimony at trial regarding the latent
fingerprint left on the manila envelope, and that his right to due process was violated
because the State withheld exculpatory evidence. These issues were not raised below.
An appellant may raise manifest errors that affect constitutional rights for the first
time on appeal. RAP 2.5(a). An error is "manifest" if it actually prejudiced the
defendant. To show actual prejudice, the appellant must make "a plausible showing"
that the "asserted error had practical and identifiable consequences in the trial of the
case." State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756(2009)(internal quotation
marks omitted). Courts analyzing actual prejudice focus on "whether the error is so
obvious on the record that the error warrants appellate review." O'Hara, 167 Wn.2d at
99-100. "[T]o determine whether an error is practical and identifiable, the appellate
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court must place itself in the shoes of the trial court to ascertain whether, given what the
trial court knew at that time, the court could have corrected the error." O'Hara, 167
Wn.2d at 100.
A. Due Process and the Confrontation Clause
Cowan argues that his rights to confrontation and due process were violated by
the State's expert's testimony at trial regarding the latent fingerprint left on the manila
envelope. He contends that this right to due process was violated "when [the State's
expert] was allowed to give her 'expert testimony' pertaining to her co-worker and
supervisor, without them ever being cross-examined by Cowan's defense attorney." He
argues that the admission of a lab report violated his confrontation clause rights. He
also challenges the admission of the envelope at trial.
The State admitted exhibit 151 at trial. This exhibit was a brown bag that
contained various paperwork and a small manila folder. Cowan did not object to the
admission of exhibit 151.
The State called Stacey Redhead, a forensic scientist at the Washington State
Patrol Crime Laboratory, to testify. Redhead testified that she performed a verification
of a comparison examination that was done by the Edmonds Police Department at the
request of the Edmonds Police Department. She testified that she received pictures of
a latent thumbprint found on the manila envelope and Cowan's known thumbprint. She
also testified that the normal process for examining a print required a review by her peer
and then by her supervisor. At trial, Redhead compared enlarged pictures of Cowan's
known thumbprint with the latent print found on the envelope. After doing so, she
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testified that the latent print matched the known thumbprint. Cowan cross-examined
her, but did not object to any of her testimony on direct examination.
Here, Cowan cannot show that either the admission of the envelope or
Redhead's testimony was manifest error. First, there is no evidence that, as Cowan
suggests in his SAG,the envelope was clearly a replacement." Although an officer
described the envelope at the scene as a "ripped up manila-type envelope," there was
no evidence that the envelope in exhibit 151 was anything other than the envelope from
the scene of the crime. Second, Redhead's testimony was not manifest error. She
examined an enlarged latent print and an enlarged known print at trial and concluded
that the latent print was made by the same person who made the fingerprint card. She
confirmed that her verification of the Edmonds Police Department's verification was
verified by a senior analyst and then by her supervisor. This was not manifest error.
B. Disclosure of Exculpatory Evidence
Cowan argues next that his right to due process was violated in violation of Brady
v. Maryland, 373 U.S. 83,83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), because the State
failed to disclose exculpatory evidence—the ripped-up manila envelope. Essentially, he
claims that the manila envelope included in exhibit 151 was not the manila envelope
from the scene.
Here, Cowan cannot establish manifest error. There is no evidence that the
manila envelope included in exhibit 151 was anything other than the envelope from the
scene of the crime.
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We affirm Cowan's convictions, but remand for resentencing including a
determination of whether attempted murder and robbery are the same criminal conduct.
4‘mri WE CONCUR:
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