Filed Washington State Court of Appeals Division Two
February 9, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 46523-0-II
Respondent,
v.
JUSTIN SCOTT FESSEL, UNPUBLISHED OPINION
Appellant.
MAXA, J. — Justin Fessel appeals his convictions and sentence for vehicular assault and
hit and run. We hold that (1) the trial court erred by failing to enter written findings of fact and
conclusions of law after a CrR 3.5 hearing, but that error was harmless because the trial court’s
oral findings were sufficient to enable appellate review; (2) Fessel failed to preserve for appeal
his argument that the trial court’s reasonable doubt jury instruction was constitutionally deficient
because he did not object to this instruction in the trial court; and (3) Fessel’s claims in his
statement of additional grounds (SAG) have no merit. However, we accept the State’s
concession and hold that the trial court erred in imposing consecutive sentences for these
convictions and bail jumping convictions sentenced on the same day. Accordingly, we affirm
Fessel’s convictions, but we reverse his sentence and remand for resentencing. No. 46523-0-II
FACTS
On July 26, 2013, Fessel was involved in an automobile collision in which his vehicle
struck a vehicle occupied by his parents and his brother. Fessel’s brother James stated that
Fessel intentionally hit their vehicle. The State charged Fessel with one count of vehicular
assault, one count of hit and run, and three counts of second degree assault.
While in jail, Fessel made statements to Detective James Payne of the Clark County
Sheriff’s Office. The trial court held a pretrial CrR 3.5 hearing to determine whether the
statements were admissible. The trial court made an oral ruling that the statements were
admissible and explained the basis for the ruling, but failed to enter written findings of fact and
conclusions of law.
Before trial, Fessel objected based on chain of custody to the admission of records from a
cell phone that was found in the victims’ vehicle. The vehicle was in a locked and secured
evidence storage building. Officers placed the cell phone in a marked bag and placed it on a
table. However, officers apparently forgot to collect the phone, and it was left unattended for 28
days on the table in the secure building. The investigating detective testified that when he
retrieved the cell phone, it was in the same paper bag and located on the same table where he had
left it after conducting the search of the vehicle. The trial court admitted the cell phone
evidence.
The trial court gave a standard reasonable doubt jury instruction that included the phrase
“[a] reasonable doubt is one for which a reason exists.” Clerk’s Papers at 41. This instruction
was identical to WPIC 4.01. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
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INSTRUCTIONS: CRIMINAL 4.01, at 85 (3d ed. 2008) (WPIC). Fessel did not object to this
instruction.
The jury found Fessel guilty of the vehicular assault and hit and run charges, but not
guilty on the three second degree assault charges. Fessel also was convicted for two counts of
bail jumping in a separate trial and the sentencing for all of his convictions occurred on the same
day. The trial court imposed Fessel’s vehicular assault and hit and run sentences consecutively
to the bail jumping sentences rather than concurrently. The trial court did not enter findings of
fact and conclusions of law supporting the consecutive sentences.
Fessel appeals his convictions and sentence.
ANALYSIS
A. FAILURE TO ENTER WRITTEN CRR 3.5 FINDINGS AND CONCLUSIONS
Fessel argues that the trial court erred by failing to enter written findings of fact and
conclusions of law following its CrR 3.5 hearing, and therefore that we must remand for the
entry of such findings and conclusions.1 The State concedes that the trial court erred, but argues
that the error was harmless. We agree with the State.
Under CrR 3.5, the trial court must conduct an admissibility hearing before admitting a
defendant’s statement into evidence. CrR 3.5(c) requires the trial court to enter written findings
of fact and conclusions of law after a CrR 3.5 hearing. Failure to enter written findings and
conclusions after a CrR 3.5 hearing is error. State v. Elkins, 188 Wn. App. 386, 396, 353 P.3d
648, review denied, 184 Wn.2d 1025 (2015). However, the failure to enter written findings and
1 Fessel does not contest the trial court’s oral findings or its determination in his CrR 3.5 hearing. He argues only that the court’s failure to enter findings and conclusions as required by CrR 3.5(c) requires mandatory remand.
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conclusions following a CrR 3.5 hearing is harmless error if the oral findings are sufficient to
enable appellate review. Id.
Here, the trial court made clear and detailed oral findings of fact. The court stated,
The Court’s ruling is that on August 15th 2013, Mr. Fessel was contacted in the Clark County Jail in a public interview room, and that at that time Mr. Fessel was in custody. Detective Payne did advise Mr. Fessel of his Miranda[2] rights. There is no indication from the testimony given that Mr. Fessel was under the influence of any type of substance or that he did not understand his rights. His answers were responsive to the questions asked. It’s the Court’s finding, based on all of the facts, that the statements were knowingly, intelligently and voluntarily given without any request for Counsel, and that Miranda rights were properly given before the statements. So the statements are admissible.
Report of Proceedings (RP) (Feb. 19, 2014) at 64. In this ruling, the trial court expressly found
that (1) Fessel was advised of his Miranda rights, (2) there was no indication that he did not
understand his rights, and (3) his statements were knowingly, intelligently, and voluntarily given
without any request for counsel. We hold that these findings and the trial court’s conclusion that
the statements were admissible are sufficient to enable appellate review.
Because Fessel did not assign error to the trial court’s admission of his statements, we
need not address whether that admission was error. Accordingly, we hold that the trial court’s
error in failing to enter written findings of fact and conclusions of law following its CrR 3.5
hearing was harmless.
B. PROPRIETY OF WPIC 4.01
Fessel argues that the trial court’s jury instruction defining reasonable doubt as “one for
which a reason exists” is constitutionally deficient and requires reversal because (1) it requires
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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the jury to articulate a reason for having a reasonable doubt and (2) it impermissibly undermines
the presumption of innocence. We decline to address this issue because Fessel did not object to
this instruction in the trial court.
A party generally waives the right to appeal an error unless there is an objection in the
trial court. State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). One exception is for
“manifest error affecting a constitutional right.” RAP 2.5(a)(3); Kalebaugh, 183 Wn.2d at 583.
To determine whether we should consider an unpreserved error under RAP 2.5(a)(3), we inquire
whether (1) the error is truly of a constitutional magnitude and (2) the error is manifest.
Kalebaugh, 183 Wn.2d at 583. An error is manifest when the appellant shows actual prejudice.
State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009). The asserted error must have practical
and identifiable consequences in the trial court. Id. The focus of the actual prejudice inquiry is
whether it is obvious from the record that the error warrants appellate review. Id. at 99-100.
Here, Fessel makes a claim of constitutional magnitude – an instruction that misstates the
reasonable doubt standard is a constitutional error. Kalebaugh, 183 Wn.2d at 584. However,
Fessel cannot show an obvious error.
The trial court’s reasonable doubt jury instruction was identical to WPIC 4.01. In State v.
Bennett, the Supreme Court directed trial courts to exclusively use WPIC 4.01 to instruct juries
on the burden of proof and the definition of reasonable doubt. 161 Wn.2d 303, 318, 165 P.3d
1241 (2007). In Kalebaugh, the Supreme Court recently reaffirmed that WPIC 4.01 was the
“proper” instruction and “the correct legal instruction on reasonable doubt.” 183 Wn.2d at 586.
The court distinguished between the proper language of WPIC 4.01 (“a doubt for which a reason
exists”) and the trial court’s improper additional instruction in that case (“a doubt for which a
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reason can be given”). Id. at 581-82. Similarly, the Supreme Court in State v. Emery stated that
the prosecutor in closing argument “properly” described reasonable doubt as a doubt for which a
reason exists. 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
Fessel cannot show that the trial court’s reasonable doubt instruction constituted a
manifest error. Accordingly, we will not consider Fessel’s unpreserved challenge to this
C. SAG CLAIMS
1. Evidence Claims
We review a trial court’s decision to admit evidence for an abuse of discretion. State v.
Garcia, 179 Wn.2d 828, 846, 318 P.3d 266 (2014). A trial court abuses its discretion where its
decision is manifestly unreasonable or based on untenable grounds or reasons. Id.
a. Cell Phone Chain of Custody
Fessel claims that the trial court erred by admitting into evidence records from a cell
phone that was secured by an investigating officer, but was left unattended on an evidence table
for 28 days. Fessel argues that because the cell phone was left unattended for such a long period,
the State could not establish chain of custody. We disagree.
Before a trial court admits evidence, the proponent must authenticate or identify it “to
support a finding that the matter in question is what its proponent claims.” ER 901(a). The
chain of custody should show that it is improbable that the evidence has either been
contaminated or tampered with. State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682 (2002).
The nature of the object, the circumstances of its preservation, including custody, and the
likelihood of tampering are factors to be considered in determining admissibility. State v.
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Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984). Minor discrepancies regarding the chain of
custody affect the weight of the evidence, not its admissibility. Id.
Here, the testimony at trial was that the cell phone remained in a locked and secured area
from the time that the officers seized the phone until it was retrieved four weeks later. The chain
of custody is not broken when evidence is stored in a locked and secured area. State v. Wilson,
83 Wn. App. 546, 555, 922 P.2d 188 (1996). Further, the investigating officer testified that
when he retrieved the cell phone, it was in the same paper bag and located on the same table
where he left it after conducting the search of the vehicle. Although the fact that the cell phone
was left unattended may have raised some questions about chain of custody, those questions
related to the weight of the evidence, not the admissibility.
Accordingly, we hold that the trial court did not abuse its discretion by admitting the cell
phone into evidence.
b. Exclusion of Drug Use Evidence
Fessel asserts that the trial court erred in excluding evidence regarding drug use by
victims and witnesses. We disagree.
Fessel claims to have witnessed, or to have knowledge of evidence of, drug use by some
of the victims and witnesses testifying for the State. Fessel argues that this drug use raises
questions about the credibility of their testimony. The trial court excluded this evidence because
Fessel did not offer expert testimony on the potential effects that drug use could have on the
witnesses’ credibility. The trial court ruled that without expert testimony, drug use evidence was
irrelevant.
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The only person that Fessel claimed was using drugs who testified at trial was his father,
James Fessel. During argument of motions in limine, Fessel represented that James told a
physician that he had used methamphetamine on the morning of the incident and that a urinalysis
exam from the hospital showed the presence of methamphetamines in his system. However,
Fessel made no offer of proof regarding how much methamphetamine James consumed or the
level of the drug in James’s system. In addition, Fessel offered no evidence that the use of some
unknown amount of methamphetamine necessarily would affect James’s perception of the
incident. Finally, Fessel offered no evidence that James showed signs of impairment at the time
of the incident.
As noted above, the trial court has discretion regarding the introduction of evidence.
Garcia, 179 Wn.2d at 846. In the absence of more specific evidence of a connection between
James’s actual drug use and his credibility, we hold that the trial court’s exclusion of drug use
evidence was not an abuse of discretion.
2. Disclosure of Cell Phone Data
Fessel asserts that the State violated CrR 4.7 by failing to provide him with a copy of a
compact disc (CD) containing data obtained from several confiscated cell phones. He claims
that the State’s failure to provide him with a copy of the data forced him to surrender his right to
a speedy trial and give up proceeding pro se, arguing that since he could not access the CD
evidence in jail he had no real choice but to rely on counsel to obtain the CD. We disagree that
the State violated CrR 4.7.
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CrR 4.7(a)(1)(v) provides that a prosecutor must disclose to the defendant any tangible
object(s) the prosecutor intends to use at trial that were obtained from the defendant.3 The State
initially stated that it had not reviewed the CD and did not plan to use the cell phone data at trial.
The State later decided to use some cell phone records at trial, but by then the State had agreed to
provide copies of the CDs to counsel.
Under CrR 4.7(c)(1), a prosecutor also must produce relevant material and information
regarding specified searches and seizures as requested by the defendant. Here, the record
suggests that Fessel requested copies of the CDs shortly before the first scheduled trial date. The
prosecutor had the CDs but was prevented by jail rules from providing copies to Fessel, who at
that time was representing himself. The trial court pointed out that he could have had his
investigator review the CDs, but Fessel did not. In addition, once counsel was reappointed to
represent Fessel, the State agreed to provide copies of the CDs to counsel.
Under the circumstances here, we hold that the State did not violate CrR 4.7.
3. Time for Trial
Fessel asserts that the trial court violated his “speedy trial rights” by granting a
continuance beyond the time for trial deadline because of the unexpected unavailability of
Detective Payne, one of the State’s key witnesses.4 SAG at 4A. We disagree.
3 The State also has a duty to produce any exculpatory evidence. However, while Fessel claimed that there may have been exculpatory evidence on the CDs, he does not present any argument or evidence that the information on the CDs was exculpatory. 4 Fessel does not state whether he is asserting a violation of his time for trial right under the court rules or his constitutional speedy trial right. Because the trial court analyzed the issue under CrR 3.3, and Fessel does not identify a constitutional violation in his SAG, we address this claim under the time for trial rule. 9 No. 46523-0-II
CrR 3.3(b) and (c) provide that a defendant who is detained in jail must be brought to
trial within 60 days of arraignment. The purpose of this rule is to protect the defendant’s
constitutional right to a speedy trial and to prevent undue and oppressive incarceration before
trial. State v. Kingen, 39 Wn. App. 124, 127, 692 P.2d 215 (1984). A criminal charge not
brought to trial within the time limits of CrR 3.3 must be dismissed with prejudice. State v.
Kenyon, 167 Wn.2d 130, 136, 216 P.3d 1024 (2009).
Certain time periods are excluded from the computation of time, including
continuances granted by the trial court. CrR 3.3(e). CrR 3.3(f)(2) states,
On motion of the court or a party, the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense. The motion must be made before the time for trial has expired. The court must state on the record or in writing the reasons for the continuance.
A trial court may grant the State’s motion for a continuance when “‘required in the
administration of justice’” as long as the continuance does not substantially prejudice the
defendant in his defense. State v. Saunders, 153 Wn. App. 209, 217, 220 P.3d 1238 (2009)
(quoting CrR 3.3(f)(1), (2)). The decision to grant a continuance under CrR 3.3 rests in the
sound discretion of the trial court and will not be disturbed unless the trial court grants the
continuance for untenable reasons. State v. Ollivier, 178 Wn.2d 813, 822-23, 312 P.3d 1 (2013),
cert. denied, 135 S. Ct. 72 (2014).
Here, Fessel’s trial was scheduled for April 21, 2014, and the time for trial deadline was
April 30. On the first day of trial the State learned that Detective Payne was unavailable because
his pregnant wife and children had been in a car accident. The State moved for a continuance
under CrR 3.3(f). The trial court granted the motion and set a new trial date of May 12.
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The trial court’s grant of a continuance was appropriate here. The unavailability of a
witness constitutes valid grounds to continue a trial date under CrR 3.3(f)(2). State v. Nguyen,
68 Wn. App. 906, 914, 847 P.2d 936 (1993). Moreover, Fessel did not articulate any prejudice
resulting from the continuance and there is no evidence that the delay prejudiced the presentation
of his defense. We hold that the trial court did not violate Fessel’s time for trial right.
4. Prosecutorial Misconduct
Fessel asserts that the prosecutor improperly moved the trial court to declare that
Detective Payne was an expert. He argues that this motion encouraged the jury to assume that
the trial court, and not the jury, determines whether a witness has sufficient expertise. However,
the trial court refused to declare that Detective Payne was an expert and instead stated that
whether a witness is an expert is the “ultimate decision for the jury.” 2 RP at 467. Therefore,
even if the prosecutor’s motion constituted misconduct, Fessel clearly was not prejudiced.
We hold that Fessel’s prosecutorial misconduct claim fails.
D. EXCEPTIONAL SENTENCE
Fessel argues, and the State concedes, that the trial court’s imposition of consecutive
sentences for two or more current, nonviolent sentences was an exceptional sentence and that the
trial court erred in not entering findings of fact and conclusions of law to support that exceptional
sentence. We accept the State’s concession and remand for resentencing.
Under former RCW 9.94A.589 (2002), convictions sentenced on the same day are treated
as “current offenses.” Former RCW 9.94A.589(1)(a) states that sentences for current offenses
shall be served concurrently and that “[c]onsecutive sentences may only be imposed under the
exceptional sentence provisions of RCW 9.94A.535.” RCW 9.94A.535 provides that whenever
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the trial court imposes an exceptional sentence, it must “set forth the reasons for its decision in
written findings of fact and conclusions of law.”
Here, the trial court sentenced Fessel for the vehicular assault, hit and run, and bail
jumping convictions on the same day, and therefore they were current offenses. In order to
impose these sentences consecutively, the trial court was required to identify the basis for an
exceptional sentence and enter findings of fact and conclusions of law to support an exceptional
sentence. The trial court failed to enter such findings and conclusions. Accordingly, we hold
that the trial court erred in imposing Fessel’s sentences for vehicular assault, hit and run, and bail
jumping consecutively. We remand for resentencing.
We affirm Fessel’s convictions, but we reverse his sentence and remand for resentencing.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J. We concur:
WORSWICK, J.
JOHANSON, C.J.