State Of Washington v. Donald D. Mcknight A/k/a Donald D. Abdich

• Court: Court of Appeals of Washington
• Decided: April 29, 2013
• Docket: 69894-0
• Status: Unpublished

Opinion

O r-3 cno o —tc: - '••* *!-> --; L~) :'i- . IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON f

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STATE OF WASHINGTON, No. 69894-0-1 - * ZT.y. Respondent, , -i- r "- .*, r_ O i ) •- DIVISION ONE ,"~". - Ps> v.

DONALD DAVID MCKNIGHT, UNPUBLISHED OPINION AKA DONALD D.ABDICH, FILED: April 29, 2013 Appellant.

Becker, J. — Donald McKnight appeals his convictions for first degree

burglary with a deadly weapon enhancement, residential burglary, and

possessing burglar tools. The charges stemmed from three separate incidents,

and McKnight moved to sever the charges. The trial court denied severance

after properly balancing the potential for prejudice and the concern for judicial

economy. We affirm because the court did not abuse its discretion in denying the

motion and McKnight's other claims are meritless.

CHARGES

First Degree Burglary with a Deadly Weapon

On the morning of December 30, 2010, Jennifer Herrman woke up to the

sound of her puppy barking in the living room of her Longview house. Hermann 69894-0-1/2

left her three-year-old son sleeping in her bed and got up to investigate. She

saw a man rummaging through a drawer in the kitchen. The intruder was

wearing a dark hood and carrying a small flashlight and a backpack. She turned

on a light and yelled repeatedly, "What are you doing in my house?"

The intruder ran toward Hermann, holding a yellow bar over his head as if

to hit her. As he got within three feet of Hermann, she recognized his face and

said, "I know who you are." Hermann grabbed the man's backpack. The intruder

struck her on the side of the face, knocking her down. Hermann heard her son

crying and saw him standing in the living room. Hermann grabbed the yellow

club and began hitting the intruder with it and chasing him out of her house. As

the man ran, he knocked Hermann's son into a wall and went out the back door.

Although Hermann recognized the intruder's face, she could not

immediately remember his name. Days later, she recalled his name and told the

investigating officer that it was Donny Abdich who had broken into her home.

Abdich also goes by the name Donald McKnight. The officer showed Hermann

the pictures of six men, and she singled out McKnight as the intruder.

Residential Burglary

On the night of April 12, 2011, Ashley Rae's house, located about seven

blocks from Hermann's, was burglarized. Rae was working at a gas station near

her home. She asked a co-worker, Brad Lowe, and his friend to drive to her

house to pick up something she had forgotten. Lowe testified that when he tried

the house key Rae gave him, the front door would not open. Lowe struggled with

the door, gave it a shove, and heard something fall on the other side. Once 69894-0-1/3

inside, Lowe discovered that a steak knife had been wedged in the door frame.

Lowe then saw a man turn, run toward the back of the house, and escape

through an open window. As the intruder ran, he lost a Nike tennis shoe.

The investigating officer, Mike Watts, was unable to retrieve finger prints,

but he found two backpacks in the living room. One backpack contained gloves,

screwdrivers, pliers, a file, a magnifying glass, a small flashlight, and several

documents bearing McKnight's name.

At trial, Lowe identified McKnight, although he initially told Officer Watts he

did not think he would be able to. Watts testified that he took the backpack,

shoe, and knife to McKnight's mother's house, a few blocks away from Rae's

house, to see if she could identify them. He said Dorthea McKnight identified the

items as belonging to her son. At trial, Dorthea testified that she only told the

officer she thought the backpack was her son's, but she did not know to whom

the shoe belonged and was not shown a knife.

Burglary Tools

On April 28, 2011, Dorthea called Longview police asking them to remove

her son, who did not have permission to be in her house but had crawled in

through a back window. The officer who responded arrested McKnight and

searched him incident to arrest, finding a Phillips screwdriver, wrench, large file,

rod, and Craftsman's tool with a knife on it. 69894-0-1/4

DENIAL OF SEVERANCE

The trial court denied McKnight's motion to sever the first degree burglary

charge from the other two charges. After a three-day trial, a jury found McKnight guilty as charged. McKnight first assigns error to the court's denial ofseverance. Atrial court's refusal to sever charges is reversible only for a manifest

abuse of discretion. State v. Bvthrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990).

Adefendant seeking severance has the burden of demonstrating that a trial involving both counts would be "so manifestly prejudicial as to outweigh the concern for judicial economy." Bvthrow, 114 Wn.2d at 718. Prejudice may result from joinder if the defendant is embarrassed by the presentation ofseparate defenses, or if use of a single trial invites the jury to cumulate the evidence to find guilt or infer criminal disposition. State v. Russell. 125 Wn.2d 24, 62-63, 882 P.2d 747 (1994), cert denjed, 514 U.S. 1129(1995). In determining whether the potential for prejudice requires severance, a

trial court must consider: (1) the strength ofthe State's evidence on each count, (2) the clarity of the defenses as to each count, (3) the court's instructions to the jury to consider each count separately, and (4) the admissibility of evidence of the other charges even if not joined for trial. Russell, 125 Wn.2d at 63. These same factors are applied by reviewing courts to determine if a trial court's denial of severance was unduly prejudicial. State v. Cotten. 75 Wn. App. 669, 687, 879 P.2d971 (1994). review denied. 126Wn.2d 1004(1995).

Concerning the first factor, McKnight argues the State's evidence on the first degree burglary count was stronger than on the residential burglary charge 69894-0-1/5

because Hermann told police she recognized him at first sight. He argues the

evidence "was not as compelling on identification" in the residential burglary at

Rae's house.

Evidence is sufficiently strong if it would allow a rational jury to find the

defendant guilty of each charge independently. State v. Bryant. 89 Wn. App. 857,

867, 950 P.2d 1004 (1998). review denied. 137 Wn.2d 1017 (1999). The

evidence in the Rae burglary meets this test, particularly considering the

backpack the burglar left in Rae's house that was full of documents with

McKnight's name on them. McKnight contends the jury was entitled to believe

that the true burglar at Rae's house was someone who had stolen his backpack.

This is possible, but unlikely, considering Lowe's identification of McKnight and

Dorthea's tentative identification of the backpack as belonging to her son. The

jury was also entitled to infer from the documents that McKnight was the burglar

at Rae's house and to add that inference to Lowe's identification of McKnight at

trial.

As to the second factor, clarity of defenses, McKnight contends on appeal

that he would have taken the stand to defend himself against the first degree

burglary count involving Hermann, but for his desire to exercise his right to

remain silent on the residential burglary at Rae's house. At the hearing on the

motion to sever, McKnight's attorney explained there was a potential alibi witness

the defense had been unable to locate, and McKnight's "litany of prior

convictions" made it undesirable for him to take the stand on the second burglary.

"The problem is that if I have to put him on the stand for that count, there is too 69894-0-1/6

much potential bleed over towards Count 1, which is a really serious case -- a

really serious count, burglary in the first degree with a deadly weapon

enhancement."

A defendant's desire to testify only on one count requires severance only if

he makes a convincing showing that he has important testimony to give concerning

one count and a strong need to refrain from testifying about another. Russell, 125

Wn.2d at 65 (finding defendant was not unduly prejudiced by joinder of three

counts of murder, each involving separate murder; defendant had made no offer of

proof as to anticipated testimony); see also State v. Weddel. 29 Wn. App. 461, 468,

629 P.2d 912 ("In the absence of evidence to the contrary, we conclude that the

overriding reason why defendant chose not to testify was not his fear of

incriminating himself on the attempted burglary count, but rather his realization that

the State would use a prior burglary conviction for impeachment."), review denied,

96 Wn.2d 1009 (1981).

McKnight, like the defendant in Russell, made no offer of proof. The

record does not indicate what testimony he wanted to give concerning the

burglary at Hermann's house. The only comments his attorney made about that

burglary were to the effect that McKnight's sister's testimony and the testimony of

other witnesses would cast doubt on Hermann's identification of McKnight.

McKnight's argument on appeal does not go beyond a general desire to testify as

to one count but not the other. As in Russell, absent an offer of proof, we cannot

conclude that joinder affected McKnight's decision not to testify. Russell, 125

Wn.2d at 65-66. 69894-0-1/7

Concerning the third factor, McKnight challenges instruction 7, which told

the jury to "decide each count separately." He contends the instruction falls

"miserably short" in telling the jury to parse out the evidence it could consider as

to each count because jurors were not specifically told, for example, that they

could not consider the paperwork with McKnight's name, which was found at

Rae's house, to support the conclusion that he was the intruder at Hermann's

house.

Instruction 7 stated, "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 any other count." Instruction 5 told the jury not to "use the fact that the

defendant has not testified to infer guilt or to prejudice him in any way."

Instruction 6 told them to "consider evidence that a witness has been convicted

of a crime only in deciding what weight or credibility to give to the testimony of

the witness, and for no other purpose." These are standard pattern instructions.

McKnight points to no objection in the record preserving the issue for appeal and

does not argue his trial counsel was ineffective for failing to propose an

alternative instruction, so he fails to raise a manifest error affecting a

constitutional right.

Concerning the fourth factor, cross-admissibility, McKnight argues on

appeal that none of the evidence in the first degree burglary at Hermann's house

"should have been admissible" in a trial for the burglary at Rae's house because

its "sole purpose would have been" to establish guilt through propensity evidence

barred by ER 404(b). He cites a trio of cases: State v. Pogue. 104 Wn. App. 69894-0-1/8

981, 17 P.3d 1272 (2001) (finding prior conviction for delivery of cocaine was

inadmissible under rule about prior bad acts); State v. Acosta. 123 Wn. App. 424,

98 P.3d 503 (2004) (finding criminal history was inadmissible to show state of

mind or to support expert opinion and potential for prejudice far outweighed

probative value); and State v. Escalona. 49 Wn. App. 251. 742 P.2d 190(1987)

(finding court should have granted mistrial where assault complainant testified as

to defendant's record of stabbing someone else).

None of these cases involved severance, and while they do analyze the

specific prejudice each defendant encountered, McKnight fails to do the same, to

show how he specifically was prejudiced at trial. A more analogous case is

Bvthrow. where the Supreme Court considered two separate robberies and held

that severance was not automatically required where evidence of one would not

have been admissible in a separate trial on the other. Bvthrow, 114 Wn.2d at

720. In Bvthrow, the court determined that the manner in which the two

robberies were committed, one of a donut shop and the other of a gas station,

was not so unique as to help prove identity under ER 404(b). Bvthrow, 114

Wn.2d at 720. Nonetheless, where the issues were relatively simple, the trial

was short, and the jury could be reasonably expected to compartmentalize the

evidence, "there may be no prejudicial effect from joinder even when the

evidence would not have been admissible in separate trials." Bvthrow, 114

Wn.2d at 721. "In order to support a finding that the trial court abused its

discretion in denying severance, the defendant must be able to point to specific

prejudice." Bvthrow, 114 Wn.2d at 720.

8 69894-0-1/9

Here, the trial court did find the evidence of the two burglaries cross-

admissible for identification purposes:

I think there is an issue of identification. That will be a major issue in this case. And, because of that, the evidence of the backpack being found at the location of Count 2 during the process of a burglary with a Defendant who meets the description of the Defendant generally makes it cross- admissible on - on Count 1.

Giving due weight to all the factors, the trial court concluded that trying the

counts together was not so unfairly prejudicial as to outweigh the value of judicial

economy. See Bvthrow. 114 Wn.2d at 722 (defendant must not only establish

prejudice but "also demonstrate that a joint trial would be so prejudicial as to

outweigh concern for judicial economy.") The court did not abuse its discretion

by denying severance.

INEFFECTIVE ASSISTANCE OF COUNSEL

McKnight argues his trial counsel was ineffective for failing to object when

Officer Watts testified he went to McKnight's mother's house on the night of the

second burglary and Dorthea McKnight positively identified the backpack, tennis

shoe, and knife found at Rae's house as her son's and confirmed McKnight had

not been home. McKnight contends the testimony was inadmissible hearsay and

there was no possible tactical reason for not objecting.

To prevail on this claim, McKnight must show his counsel's performance

fell below that of a reasonably competent attorney and that prejudice resulted

from that deficiency. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). Prejudice is not established unless "there is a

reasonable probability that, except for counsel's unprofessional errors, the result 69894-0-1/10

of the proceeding would have been different." State v. McFarland. 127 Wn.2d

322, 335-36, 899 P.2d 1251 (1995).

McKnight fails to demonstrate the requisite prejudice. Dorthea herself

testified she thought the backpack Officer Watts showed her belonged to

McKnight. Her testimony as to the shoe and the knife differed from Officer Watts'

testimony, but that is of no import. Aside from the various documents found

inside the backpack which identified McKnight, both Hermann and Lowe

positively identified McKnight as the intruder they saw in the respective

burglaries. We see no reasonable possibility that the result would have been

different if counsel had objected to Officer Watts' testimony.

SUFFICIENCY OF THE EVIDENCE

McKnight was charged with making or having burglar tools under RCW

9A.52.060(1) after he was searched incident to arrest at his mother's home and

found in possession of a Phillips screwdriver, wrench, file, rod, and Craftsman

tool. McKnight contends the testimony of the arresting officer, Emilio Villagrann,

was insufficient to support the conviction because the officer testified only that

these items "could be used" in a burglary, not that they definitely were burglary

tools.

RCW 9A.52.060(1) makes it a crime to make or possess any "tool, false

key, pick lock, ... or implement adapted, designed, or commonly used for the

commission of burglary under circumstances evincing an intent" to use such tools

to commit burglary.

10 69894-0-1/11

Evidence is sufficient to support a conviction if, viewed in the light most

favorable to the prosecution, it permits any rational trier of fact to find the

essential elements of the crime beyond a reasonable doubt. State v. Salinas,

119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from the

evidence must be drawn in favor of the State and interpreted strongly against the

defendant. Salinas, 119 Wn.2d at 201.

McKnight was found in possession of the incriminating tools after he had

entered his mother's house without permission through a window and she called

police to have him ejected. Given these circumstances, and the officer's

testimony that the tools could be used to unscrew hinges, break locks, cut

window screens, and pry open doors and windows, as well as the jury's general

experience with tools and how they are used, the evidence was sufficient for a

rational jury to conclude McKnight possessed tools adapted, designed, or

commonly used for the commission of burglary under circumstances evincing an

intent to use them to commit burglary.

STATEMENT OF ADDITIONAL GROUNDS

In a letter to the court, McKnight raises the denial of severance,

evidentiary issues regarding the lack of DNA and fingerprint evidence and the

credibility of witnesses, and an allegation that his jury was "tainted" because

potential jurors saw him being escorted into the courtroom by an armed officer.

For purposes of analysis, we will treat McKnight's letter of October 2011 as a

statement of additional grounds pursuant to RAP 10.10, even though it was not

designated as such.

11 69894-0-1/12

McKnight's claim regarding severance was adequately addressed by his

appellate attorney and fails for the reasons discussed above. This court defers

to the trier of fact on issues of credibility of the witnesses and persuasiveness of

the evidence. State v. J.P. 130Wn.App. 887, 891-92, 125 P3d 215 (2005).

McKnight's claim about the incident with the armed officer is not supported by

evidence in the record, so we cannot review it. See RAP 10.10(c).

Affirmed.

^CcX*e£ WE CONCUR: