State of Washington v. Victor James Mathis

• Court: Court of Appeals of Washington
• Decided: March 2, 2021
• Docket: 36816-5
• Status: Unpublished

Opinion

FILED MARCH 2, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) No. 36816-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) VICTOR JAMES MATHIS, ) ) Appellant. )

LAWRENCE-BERREY, J. — Victor James Mathis challenges his first degree perjury

conviction and sentence. The perjury conviction arises out of testimony Mathis gave

during his 2018 trial in which he was charged with two counts of first degree unlawful

possession of a firearm (UPFA). In that trial, Mathis testified he had never been

convicted of any crimes in Georgia and that the Georgia crimes the State asserted he

committed were actually committed by his identical twin half-brother, Victor Lewis

James. We affirm his conviction but remand for resentencing.

1 No. 36816-5-III State v. Mathis

FACTS

Firearms arrest and charges

In January 2018, police responded to a disorderly conduct call in Goldendale,

Washington. Officers contacted Victor James Mathis, who permitted them to seize a .30-

06 rifle from his home. Later that day, police learned of Mathis’s criminal history and

obtained a search warrant. The next day, during a search of Mathis’s home, police found

another weapon. After advising him of his Miranda1 rights, Sergeant Jay Hunziker told

Mathis that he was unable to lawfully possess firearms due to two Georgia felony

convictions. Mathis initially denied the convictions, but later said he had been in custody

for those crimes but was released when authorities learned his half-brother had used his

name. Sergeant Hunziker advised Mathis that his criminal history contained his

identifying information. Mathis then admitted to the sergeant that he was a felon and had

been convicted of armed robbery and burglary in Georgia and that he knew he was not

allowed to possess firearms. Mathis was arrested and charged with two counts of first

degree UPFA.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 No. 36816-5-III State v. Mathis

Firearms trial

In August 2018, Mathis went to trial on his firearms charges. Mathis testified in

his own defense. Under oath, he stated he had never gone by another name, had never

been convicted of crimes in Georgia, and had never been to prison. Yet criminal records

from Georgia showed that a Victor Lewis James had been convicted of armed robbery.

Mathis explained that Victor Lewis James was his identical twin half-brother from

another mother and that both he and James were born on the same day.

The jury found Mathis guilty of two counts of first degree UPFA. Two weeks

later, the trial court sentenced Mathis to 102 months for each count, running them

concurrently.2

Perjury charge and trial

After the firearms trial, the sheriff’s office began investigating the identity of

Victor Lewis James, Mathis’s purported twin half-brother. Detectives searched Georgia

Vital Records and they were unable to locate the birth of Victor Lewis James; they found

2 Mathis appealed his firearms convictions to this court, arguing the State brought insufficient evidence to prove the essential element of a constitutionally valid predicate felony conviction. This court affirmed those convictions in an unpublished opinion. State v. Mathis, No. 36296-5-III (Wash. Ct. App. Aug. 20, 2019) (unpublished) http://www.courts.wa.gov/opinions/pdf/362965_unp.pdf, review denied, 194 Wn.2d 1019, 455 P.3d 124 (2020).

3 No. 36816-5-III State v. Mathis

only Victor James Mathis. Detectives obtained information on some of the prior Georgia

convictions, including a Georgia Department of Corrections fingerprint card that listed

Victor Lewis James as the person convicted.

Jody Dewey, the State’s forensic analyst, compared the fingerprints on the Georgia

fingerprint card with those taken during Mathis’s booking and his judgment and

sentencing. The three sets of fingerprints all had the same pattern types and the same

right thumb fingerprint.

The State charged Mathis with one count of perjury for material misstatements he

made during his trial testimony. The State alleged Mathis lied under oath when “denying

he was a convicted felon or that he had previously gone under a different name.” Clerk’s

Papers (CP) at 124.

Mathis elected to have the perjury charge tried to the bench. The State called

Sergeant Hunziker, the arresting officer from the January 2018 firearms arrest. Sergeant

Hunziker explained that after he arrested Mathis and read him his rights, Mathis said he

had been convicted but was released from custody because his half-brother had used his

name. But when the sergeant explained to Mathis the information in his criminal history

included his birth date, FBI3 number, fingerprint classifications, and known aliases,

3 Federal Bureau of Investigation.

4 No. 36816-5-III State v. Mathis

Mathis admitted he was a convicted felon and had been convicted of armed robbery and

burglary in Georgia.

The State offered a fingerprint card certified by the Georgia Department of

Corrections. Ex. 2.4 The fingerprint card contained identifying information, a box

stamped “ADDITIONAL SENTENCE,” a box marked “CHARGE,” and a box marked “FINAL

DISPOSITION.” The following information was typed in the “CHARGE” box: “POSS

FIREARM CONVCT FELON (91385): POSS OF CERTAIN WEAPONS (91385): POSS OF FIREARM

DUR CRIME (91385): AG AGRAVATED ASSAULT (91385): ARMED ROB*.” Ex. 2. The

following information was typed in the “FINAL DISPOSITION” box: “5Y CT 10 CC: 5Y CT 9

CC: 5Y CT 8 CC: 10Y 2 CTS CC: 20Y SV 15Y B/P CT 1.” Ex. 2.

The parties disputed the admissibility of the fingerprint card. After some

discussion, the court found it was properly authenticated, and the hearsay exception for

judgment of a previous conviction applied:

In reviewing the documents it does appear that these are pursuant to pleas based upon page—the third page of Exhibit 2 indicates that the State v. Victor Lewis James was concluded by plea, negotiated guilty on Counts 1 through 10. There was a prosecution order on Count 11. That’s why I was trying to figure out what that was . . . . that appears to be the recidivist count pursuant to the special presentation that was provided in here. The document does then contain essentially the information as to all eleven

4 This exhibit is attached as an appendix to this opinion.

5 No. 36816-5-III State v. Mathis

counts, as well as the judgment and sentence—final disposition, I guess is what it’s called, in the State of Georgia. . . . So, with that said, I do change my position with regards to Exhibit Number 2 and do find that Exhibit 2 is admissible.[5]

Report of Proceedings (RP) at 94-95.

The court entered the following findings of fact, which are not disputed on appeal:

11. . . . Mathis . . . admitted to Sergeant Hunziker that he was in fact a convicted felon and had been convicted of the charges of armed robbery and burglary in Georgia. . . . .... 14. . . . Mathis testified under oath at [the firearms] trial that he did not go by any other name, that he had not been convicted of any crimes out of Georgia, that he had a brother, from another mother but same father, with the name of Victor Lewis James. Mathis testified it was his brother Victor Lewis James that had been convicted in Georgia of burglary and armed robbery and again that he never been convicted. . . . .... 20. Dewey determined that [the Georgia fingerprint card for James and the Washington fingerprint cards for Mathis] all had the same pattern types. 21. Dewey further determined that all 3 fingerprint cards/prints contained the same right thumb fingerprint. 22. Dewey testified that no two fingerprints are the same.

CP at 17-19.

5 Because of an earlier objection, the State had limited exhibit 2 to a two-page submission. See RP at 36-37. The trial court’s reference, earlier in this quote, to the third page was therefore error. Because the State had limited its submission to two pages, this is what was admitted.

6 No. 36816-5-III State v. Mathis

From these and other findings, the trial court entered the following conclusions of

law:

9. Mathis [sic] testimony under oath at his trial on the [first degree UPFA] charges that he had never been convicted of the underlying predicate crimes for armed robbery and burglary nor convicted of any crimes are material statements. 10. Sergeant Hunziker was a credible witness that provided testimony that positively and directly contradicted the testimony of Mathis, when Sergeant Hunziker testified that Mathis advised him that he had been previously convicted of the armed robbery and burglary charges out of Georgia. 11. Jody Dewey of the Washington State Patrol Crime Lab provided testimony that the fingerprints of Victor James Mathis were the same as the individual convicted in Georgia for armed robbery and burglary. This testimony was independent testimony that corroborated the testimony of Sergeant Hunziker and clearly contradicted the testimony of Mathis provided under oath that he was not the Victor Lewis James that was convicted of those offenses in Georgia. 12. The testimony provided in this case was of such a character as to clearly turn the scale and overcome the oath of the defendant and the legal presumption of his innocence. 13. Mathis knowingly made a materially false statement, knowing the statement to be false, under oath in an official proceeding when he testified falsely that he had never been convicted of the crime[s] of burglary and armed robbery out of Georgia.

CP at 21-22.

From these, the trial court determined that the State had proved beyond a

reasonable doubt that Mathis committed perjury in the first degree.

7 No. 36816-5-III State v. Mathis

Perjury sentencing

Defense counsel stipulated that Mathis’s offender score was 9. The court then

said:

I do find that the offender score of nine is appropriate based upon the stipulation of the parties and also with regards to viewing Mr. Mathis’ criminal history, both for those offenses from the unlawful possession of firearm case in 18-1-17-20 points as well as the offenses out of Georgia being comparable offenses after doing both a legal and a factual analysis of those offenses. I do find that they are comparable offenses for making an offender score of nine in this case, standard range seventy-two to ninety-six months.

RP at 120. Defense counsel asked for Mathis’s perjury sentence to run concurrent with

his firearm sentence. The prosecutor disagreed and argued that a concurrent sentence

would constitute an exceptional sentence downward. The trial court agreed and

sentenced Mathis to 84 months, to run consecutive with his 102 month firearm sentence.

Mathis timely appeals.

ANALYSIS

PERJURY: SUFFICIENCY OF THE EVIDENCE

Mathis contends the trial court erred in finding that the State’s fingerprint evidence

and expert testimony were sufficient to meet the higher standard of proof for perjury

convictions. He alternatively argues the fingerprint card was inadmissible hearsay.

8 No. 36816-5-III State v. Mathis

Sufficiency of evidence

The State must prove every element of a crime beyond a reasonable doubt. State v.

Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). Where sufficient evidence does not

support a conviction, it cannot stand. State v. Hummel, 196 Wn. App. 329, 353, 383 P.3d

592 (2016). Insufficient evidence claims admit the truth of the State’s evidence and all

reasonable inferences drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d

1068 (1992).

“A person is guilty of perjury in the first degree if in any official proceeding he or

she makes a materially false statement which he or she knows to be false under an oath

required or authorized by law.” RCW 9A.72.020(1). The State must present the

testimony of at least one credible witness that directly contradicts the defendant’s oath

and another direct witness or “‘corroborating circumstances established by independent

evidence’” of such a character to overcome the defendant’s oath and presumption of his

innocence. State v. Buchanan, 79 Wn.2d 740, 744, 489 P.2d 744 (1971) (quoting State v.

Wallis, 50 Wn.2d 350, 353, 311 P.2d 659 (1957)); see also State v. Olson, 92 Wn.2d 134,

136, 594 P.2d 1337 (1979). “The quantum of proof necessary to sustain a conviction of

perjury is the highest known to the law, excepting only treason.” Buchanan, 79 Wn.2d at

744.

9 No. 36816-5-III State v. Mathis

One credible witness directly contradicting the defendant’s oath

At his firearms trial, Mathis testified under oath that he had never been convicted

of any crimes out of Georgia. He testified it was his twin half-brother, not him, who had

been convicted in Georgia of burglary and armed robbery.

Sergeant Hunziker directly contradicted this. He testified that Mathis, after

waiving his Miranda rights, “admitted to me he was a convicted felon and was convicted

of armed robbery and burglary in Georgia.” RP at 54. This testimony is sufficient to

prove the first part of what the State was required to prove.

Independent evidence of corroborating circumstances

The State sought to prove the second part with documentary proof that Mathis had

been convicted in Georgia of armed robbery and burglary. The State had a certified copy

of the Georgia Department of Corrections fingerprint card admitted for this purpose.

Mathis argues the fingerprint card was insufficient evidence because it does not

prove the existence of a prior felony conviction and because it was hearsay. We address

the hearsay issue first.

The card was admissible hearsay

The trial court admitted the fingerprint card under ER 803(a)(22) as a judgment of

a previous conviction. We agree with Mathis that the fingerprint card is not a judgment.

10 No. 36816-5-III State v. Mathis

Nevertheless, a trial court’s ruling on the admissibility of evidence will not be disturbed if

it is sustainable on an alternate ground. State v. St. Pierre, 111 Wn.2d 105, 119, 759 P.2d

383 (1988).

The State argues the card was admissible under ER 803(a)(8) as a certified copy

of a public record. To be admissible under this hearsay exception, the document must

(1) contain facts rather than conclusions that involve judgment, discretion or the

expression of an opinion, (2) relate to facts that are of a public nature, (3) be retained for

public benefit, and (4) be authorized by statute. State v. Monson, 113 Wn.2d 833, 839,

784 P.2d 485 (1989) (quoting Steel v. Johnson, 9 Wn.2d 347, 358, 115 P.2d 145 (1941)).

We agree that the fingerprint card meets these criteria. See GA. CODE ANN. § 42-2-11

(directing Georgia Board of Corrections to promulgate administrative rules); GA. COMP.

R. & REGS. 125-2-4-.05 (Georgia Department of Corrections must maintain inmate file

records).

Mathis does not dispute that the fingerprint card is admissible under ER 803(a)(8).

Rather, citing State v. Ferguson, 100 Wn.2d 131, 138, 667 P.2d 68 (1983), he argues the

State may not argue a different evidentiary ground than argued to the trial court.

However, Ferguson stands for the proposition that an appellate court will not reverse if a

trial court admits evidence that could have been excluded had trial counsel objected on

11 No. 36816-5-III State v. Mathis

the correct evidentiary basis. Id. Ferguson does not preclude us from affirming the

admissibility of evidence on an alternate ground.

Evidence of “serious offense” conviction

Mathis argues the fingerprint card is insufficient to establish he was convicted of

any crime. We disagree.

Toward the top left, the fingerprint card bears a stamp that reads, “ADDITIONAL

SENTENCE.” Ex. 2. An inch or so below this, a section is entitled, “FINAL DISPOSITION.”

Ex. 2. In that section, various sentences are paired with various counts. A person is not

sentenced unless convicted. We note there are five charges listed in the charges section

and five sentences listed in the disposition section. The trial court correctly concluded the

fingerprint card reflected criminal convictions.

Mathis next argues the fingerprint card omits any evidence he was convicted of

burglary. We agree, but it does show Mathis was convicted of armed robbery. The

question then is whether Mathis’s first degree perjury conviction can stand without

evidence he was convicted of burglary. It can.

As mentioned previously, first degree perjury requires proof that Mathis made a

“materially false statement” while under oath. RCW 9A.72.020(1). There is no question

that Mathis made a false statement while under oath. Mathis testified in his firearms trial

12 No. 36816-5-III State v. Mathis

that he had never been convicted of any crimes out of Georgia. He testified it was his

twin half-brother, not him, who had been convicted in Georgia of burglary and armed

robbery. The fingerprint card showed that Mathis lied. It showed he had been convicted

of at least five crimes, one of which was armed robbery. The only question is whether the

false statement was material.

A “materially false statement” means “any false statement . . . which could have

affected the course or outcome of the proceeding.” RCW 9A.72.010(1). Had the jury

believed Mathis—that it was his twin half-brother, not him, who had been convicted of

crimes in Georgia—this certainly “could have” affected the outcome of the firearms trial.

In fact, it would have. Without the Georgia convictions, the State could not have proved

the first degree UPFA charges.

CONSECUTIVE SENTENCING

Mathis contends the trial court erred by ordering his perjury sentence to run

consecutive to his firearms sentence. The State concedes this issue and recommends

resentencing consistent with RCW 9.94A.589(3). For the reasons set forth below, we

agree.

The sentencing statute at issue provides:

13 No. 36816-5-III State v. Mathis

[W]henever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.

Former RCW 9.94A.589(3) (2015). In other words, the statute directs concurrent

sentencing “when (1) a person who is ‘not under sentence of a felony’ (2) commits a

felony and (3) before sentencing (4) is sentenced for a different felony.” State v. Shilling,

77 Wn. App. 166, 175, 889 P.2d 948 (1995) (quoting former RCW 9.94A.400(3)

(1990)6). The trial court has discretion to order a current sentence to run concurrently

with, or consecutive to, a felony sentence previously imposed. Id. at 175-76. But only an

express order of consecutive sentencing can overcome the statutory presumption of

concurrent sentencing. Id. at 176.

Mathis committed perjury on August 9, 2018, during his trial for two counts of

unlawful possession of a firearm. He was sentenced for those crimes on August 31,

2018. As such, he was not yet serving a felony sentence at the time of his perjury and

RCW 9.94A.589(3) applies. For this reason, we remand for resentencing.

6 Former RCW 9.94A.400 was recodified as RCW 9.94A.589 by LAWS OF 2001, ch. 10, § 6.

14 No. 36816-5-III State v. Mathis

OFFENDER SCORE

Mathis contends he: received ineffective assistance of counsel when his attorney

agreed to his offender score of 9 at sentencing instead of challenging the comparability of

several out-of-state convictions. He asks that we, for the first time on appeal, perform the

comparability analysis of those out-of-state convictions.

The State responds ~hat the comparability analysis of Mathis' s prior out-of-state

convictions should be perfprmed at resentencing. We agree. The trial court is the best

venue for conducting a thorough evidentiary hearing. We remand for this purpose.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

Lawrence-Berrey, J. j WE CONCUR:

Pennell, C.J. ,.R_ I c..t Fearing, J.

15 No. 36816-5-III State v. Mathis Appendix

16 No. 36816-5-III State v. Mathis Appendix