State v. We

138 Wash. App. 716

• Court: Court of Appeals of Washington
• Decided: May 22, 2007
• Docket: No. 24047-9-III
• Status: Published

Opinions

¶1 This is an arson prosecution. The State’s expert arson investigator testified that the defendant burned her apartment for insurance fraud. No one objected or asked for a curative instruction at trial. Here on appeal, the defendant contends that this was an inadmissible opinion of her guilt and that this is an error of constitutional magnitude. We conclude that the opinion was an appropriate expert opinion. And the circumstantial evidence of the defendant’s culpability, even without the opinion, was sufficiently overwhelming to render any error, assuming error, harmless. We therefore affirm the conviction. We also affirm the sentencing court’s imposition of restitution.

Sweeney, C.J.

FACTS

¶2 A jury convicted Janae We of first degree arson for burning the duplex she lived in. The State had charged her with causing the fire "with intent to collect insurance proceeds.” Clerk’s Papers (CP) at 2. Ms. We lived in the duplex. Sidiq Dar owned the duplex. Mr. Dar usually lived in the other side of the duplex. But he was in Florida for the winter. And Ms. We knew it. The fire destroyed the half of the duplex Ms. We lived in. Ms. We intentionally started this fire on March 22, 2003. Her lease was up at the end of March 2003.

¶3 Experts on both sides agreed the fire was intentionally started. The essential factual question at trial was who started the fire. The source of ignition was candles. Candles are a delayed ignition device. That is, they allow the arsonist to leave the scene before the fire fully ignites. Investigators discovered two separate major areas where the fire started: one in the garage and one at the bottom of the basement stairs. But other fires had been started in the basement. Candles were located under combustible material in the south, center, and north bedrooms. Ms. We left the duplex shortly before the fire was discovered by a passerby. And she locked the door before she left. The garage had been on fire for 10 to 15 minutes before it was reported at 11:30 pm.

¶4 Ms. We bought renter’s insurance and insurance on her 1977 Land Cruiser on October 2 or 3, 2002, about six months before the fire here. A representative from that insurance company met with Ms. We and took a statement from her following the fire. Ms. We’s values of a number of items had changed from the time she bought the renter’s policy to the time she submitted her claims. One category on the policy was collections. When Ms. We applied for the insurance, she set the value of her collections at $2,000. But she claimed a loss of between $7,000 and $8,000 because of a Picasso etching and a Bunka cross-stitching on linen. The policy included a category for fine arts. Ms. We originally listed the total at $20,000 but now claimed $25,000. Computer and computer equipment that she originally valued at $5,000 was now claimed as a loss of $10,800. Business property originally valued at $5,000 was now claimed as a loss of close to $30,000. And the Land Cruiser Ms. We paid $5,000 for was valued at $9,167.51. She claimed a total of $101,184.46 for damage to personal property as a result of the fire.

¶5 The State showed that the primary source of Ms. We’s money, a modest trust, would last another six months at the rate at which she was depleting it. And Ms. We’s spending exceeded her income.

¶6 Captain Michael Zambryski investigated the fire. He is a fire investigator for the Spokane Fire Department. He testified at trial that Ms. We had the motive, the opportunity, and the means to start the fire. He testified that her motive was insurance fraud.

DISCUSSION

¶7 On appeal Ms. We predicates her primary assignments of error on Captain Zambryski’s testimony that the motive for setting the fire was insurance fraud. She did not, however, object to that testimony at trial. Nor did she ask for a curative instruction following his testimony. She asserts instead that the error is manifest constitutional error that we can and should address in the first instance here on appeal. Alternatively, she asserts that her lawyer did not effectively represent her because he failed to object to Captain Zambryski’s testimony at trial. Again the claim is that this error—ineffective assistance of counsel—is an error of constitutional magnitude. And so Ms. We urges us to address the question despite the failure to do anything about it in the trial court.

¶8 Each of Ms. We’s assignments of error (manifest constitutional error or ineffective assistance of counsel) requires a showing of two traits common to each. First, Ms. We must show error. State v. Barr, 123 Wn. App. 373, 380, 98 P.3d 518 (2004); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Here, that means she must show that Captain Zambryski’s testimony was, first of all, inadmissible opinion testimony. And, second, she must show that the outcome of this trial would have been different had his opinions been excluded. State v. Warren, 134 Wn. App. 44, 57, 138 P.3d 1081 (2006) (manifest constitutional error); State v. Hakimi, 124 Wn. App. 15, 22, 98 P.3d 809 (2004) (ineffective assistance of counsel).

Motive

¶9 We cannot help but take notice that the trial judge presiding over this almost two-week jury trial was not given the chance to make the discretionary decision whether to admit this opinion evidence. State v. Stenson, 132 Wn.2d 668, 701-02, 940 P.2d 1239 (1997). Nor could he, of course, consider the necessary factors preliminary to admitting or excluding the evidence.¹

¶10 This highlights for us the problem inherent in appellate second guessing of questions on the admissibility of evidence when the trial judge has not been given the opportunity to pass on these questions in the first instance.² Whether or not to admit evidence is a very contextually driven decision. It depends on the case. And that is precisely why it is a decision vested in the discretion of the trial judge. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004). This is not to say that we should refuse to review assignments of obvious error with palpable consequences. Of course we should. But we are a court of review. That means we are in the business of reviewing decisions made by some trial judge. We are not in the business of making these decisions in the first instance.

Relevancy

¶11 Again, the admissibility of evidence is within the discretion of the trial court and will not be disturbed on appeal absent a showing of abuse. Barr, 123 Wn. App. at 380. Abuse occurs only where discretion is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

¶12 “To be relevant, evidence must meet two requirements: (1) the evidence must have a tendency to prove or disprove a fact (probative value) and (2) that fact must be of consequence in the context of the other facts and the applicable substantive law (materiality).” State v. Baldwin, 111 Wn. App. 631, 638-39, 45 P.3d 1093 (2002), aff’d, 150 Wn.2d 448, 789 P.3d 1005 (2003). And certainly in an arson case, opportunity and motive tend to show that the acts of the defendant were willful and criminal. State v. Picard, 90 Wn. App. 890, 901, 954 P.2d 336 (1998). And therefore evidence tending to show opportunity and motive are relevant.

¶13 The significant factual issue in this case was what motive Ms. We would have for burning her apartment. She presented evidence and argued that she had enough money to support herself. The State showed that her resources were limited and that her money would soon run out.

Expert Opinion Testimony

¶14 Here, the State alleged in its information that Ms. We started this fire “with intent to collect insurance proceeds.” CP at 2. Certainly an issue for a fire investigator is why. That is, what is the motive for wanting to destroy one’s own property?

¶15 An expert can testify in the form of an opinion. ER 702. The decision whether to admit expert testimony is within the trial court’s discretion. State v. Swan, 114 Wn.2d 613, 655, 790 P.2d 610 (1990). Evidence is admissible under ER 702 if the witness qualifies as an expert and the expert testimony would be helpful to the jury. State v. Baird, 83 Wn. App. 477, 484-85, 922 P.2d 157 (1996).

¶16 Neither a lay nor an expert witness can, however, testify that a defendant is guilty. State v. Olmedo, 112 Wn. App. 525, 530, 49 P.3d 960 (2002). But an opinion is not improper because it involves ultimate factual issues. And “[t]estimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” ER 704; Olmedo, 112 Wn. App. at 531. The expert’s opinion must be based on the evidence and the expert’s experience and not the defendant’s credibility. Baird, 83 Wn. App. at 485. And that is what we have here.

¶17 Ms. We testified she had enough money. And implicit in that was that she had no motive to defraud the insurance company. She testified about a confrontation with an unknown person interested in buying her car. And implicit in that testimony was that this other person had a motive to torch her apartment.

¶18 The State qualified Captain Zambryski as an expert fire investigator. And Ms. We did not challenge his qualifications at trial, nor does she do so here on appeal. He then expressed opinions based on the evidence that Ms. We’s motive was “[[Insurance fraud.” Report of Proceedings at 502. He investigates fires. His job is then to assemble and analyze facts on three questions: opportunity, means, and motive. Those are the factual issues in an arson case.³ Here specifically, did Ms. We have the opportunity to commit this crime? Did she have the ability to commit this crime? And, the bone of contention here, did she have a motive to commit this crime? And while his testimony certainly cast doubt on Ms. We’s version of events (specifically that she had enough money and no need to defraud the insurance company), it is not an opinion on her guilt or innocence. And had the trial court been give the opportunity to pass on the admissibility of that opinion, we would have affirmed an exercise of discretion admitting the opinion on Ms. We’s motive. See RAP 2.5(a); State v. Wilber, 55 Wn. App. 294, 298-99, 777 P.2d 36 (1989) (analyzing officers’ testimony as to witness’s credibility as improper expert opinion testimony under ER 702 and not of “constitutional magnitude,” and stating that “[a]rguably, the officers’ opinions are also, inferentially, opinions on the defendant’s guilt. However, to take such an expansive view of the prohibition against opinion testimony on the guilt of a defendant is unnecessary”).

¶19 Captain Zambryski did not tell the jury what result to reach. He did not offer an opinion as to Ms. We’s credibility, nor do his opinions rely upon her credibility. He simply said based on his investigation that she had a motive to torch her apartment. That motive was insurance fraud. His opinions support the jury’s conclusion that she was guilty of arson. But that does not make them improper opinions on guilt. Baird, 83 Wn. App. at 486.

¶20 There is, then, no manifest constitutional error, nor can we say that counsel’s conduct fell below some objective level of professional norms. In fact, counsel’s failure to object is completely understandable. The evidence was admissible.

Harmless Error

¶21 Constitutional errors may be harmless. State v. Moses, 129 Wn. App. 718, 732, 119 P.3d 906 (2005), review denied, 157 Wn.2d 1006 (2006); State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). We assume that “The damaging potential of the [inadmissible testimony was] fully realized.’ ” Moses, 129 Wn. App. at 732 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)). We then ask whether we can nevertheless say the error was harmless beyond a reasonable doubt. Moses, 129 Wn. App. at 732 (quoting Van Arsdall, 475 U.S. at 684). The error was harmless if the untainted evidence was so overwhelming that it necessarily would lead to a finding of guilt. State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005), aff’d, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

¶22 Here, even absent Captain Zambryski’s opinion that Ms. We’s motive was insurance fraud, the evidence meets this stringent criteria.

¶23 The fire here was clearly the result of arson. And Ms. We does not argue otherwise. Ms. We was running short of money. In fact, her lawyer elicited testimony from the State’s forensic expert that her outgo exceeded her income by about $600 per month. Her tenancy was due to end nine days after the fire started. She had purchased renter’s insurance only six months before the fire started. She made claims far in excess of the original values she ascribed to her property when she bought the renter’s insurance. The other occupant of the duplex was out of town. And Ms. We knew he was out of town. She was at her apartment at about the time the fire started. There was no other credible culprit. All of this evidence is untainted by the opinion of Captain Zambryski, and it is overwhelming evidence of her guilt. Any error, even assuming error, would have been harmless.

Restitution

¶24 Ms. We first argues that the amount of restitution ordered is excessive. We review a challenge to the amount of a restitution order for abuse of discretion. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). “ ‘An abuse of discretion occurs only when the decision or order of the court is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” State v. Enstone, 137 Wn.2d 675, 679-80, 974 P.2d 828 (1999) (internal quotation marks omitted) (quoting State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981)).

¶25 Atrial court’s authority to impose restitution is purely statutory. Davison, 116 Wn.2d at 919. The court is required to order restitution when the offender is convicted of an offense which results in damage to or loss of property. RCW 9.94A.753(5). Ms. We did not dispute the computation of the restitution amount or the sufficiency of the evidence to support it.

¶26 Ms. We next argues that the court should have considered her ability to pay. She is mistaken. Consideration of the defendant’s ability to pay applies to the setting of the minimum monthly payment, not to the setting of the total restitution amount. RCW 9.94A.753(1);⁴ State v. Huddleston, 80 Wn. App. 916, 928-29, 912 P.2d 1068 (1996); see also RCW 9.94A.753(4) (permitting the trial court to modify the amount, terms, and conditions of restitution, but the total amount of restitution ordered may not be reduced based on the offender’s inability to pay the total amount). The court then appropriately refused to consider Ms. We’s ability to pay when setting the total amount of restitution owed.

¶27 The court did not abuse its discretion.

Statement of Additional Grounds for Review

¶[28 Ms. We asserts ineffective assistance of counsel in her statement of additional grounds for review. She asserts that counsel failed to place the appropriate amount of emphasis on certain testimony; failed to object to testimony; failed to ask the appropriate questions of witnesses; failed to counter the State’s evidence; failed to contact, interview, and subpoena witnesses; failed to conduct a thorough investigation; and failed to provide her with discovery.

¶29 To prevail on a claim of ineffective assistance of counsel, Ms. We must establish both deficient performance and resulting prejudice. McFarland, 127 Wn.2d at 334-35. “There is a strong presumption that trial counsel’s performance was adequate, and exceptional deference must be given when evaluating counsel’s strategic decisions.” State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).

¶30 Based on the record submitted, Ms. We’s complaints relate to tactical decisions. See State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (decisions concerning methods of examining witnesses are trial tactics); State v. Krause, 82 Wn. App. 688, 697-98, 919 P.2d 123 (1996) (decision to call a witness is a trial tactic); State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989) (decisions when or whether to object are trial tactics). Some of Ms. We’s complaints relate to circumstances outside our record. The proper avenue for bringing claims based on evidence outside the record is through a personal restraint petition, not an appeal. McFarland, 127 Wn.2d at 335.

¶31 Ms. We also challenges the sufficiency of the evidence. Her sole argument is that the State presented only circumstantial evidence of her involvement. As noted by the Washington Supreme Court: “Arson is an offense which is most often proved by circumstantial evidence.” State v. Young, 87 Wn.2d 129, 137, 550 P.2d 1 (1976). It is a crime of particularly secret preparation and commission, and the State can seldom produce witnesses to the actual setting of such a fire. Id. Still, “a well-connected train of circumstances may be as satisfactory as an array of direct evidence” in proving the crime of arson. Id.; State v. Plewak, 46 Wn. App. 757, 765, 732 P.2d 999 (1987). Circumstantial evidence is sufficient to convict in an arson case.

HOLDING

¶32 We affirm the conviction and award of restitution.

Brown, J., concurs.

1 TO determine whether a statement is impermissible opinion testimony or a permissible opinion pertaining to an ultimate issue, courts must consider “the type of witness involved, the specific nature of the testimony, the nature of the charges, the type of defense, and the other evidence before the trier of fact.” City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993).

“Appellate courts are and should be reluctant to conclude that questioning, to which no objection was made at trial, gives rise to “manifest constitutional error” reviewable for the first time on appeal. The failure to object deprives the trial court of an opportunity to prevent or cure the error. The decision not to object may be a sound one on tactical grounds by competent counsel, yet if raised successfully for the first time on appeal, may require a retrial with all the attendant unfortunate consequences. Even worse, and we explicitly are not referring to counsel in this case, it may permit defense counsel to deliberately let error be created in the record, reasoning that while the harm at trial may not be too serious, the error may be very useful on appeal.”

2 Warren, 134 Wn. App. at 56 (quoting State v. Madison, 53 Wn. App. 754, 762-63, 770 P.2d 662 (1989)).

3 “Arson is an offense which is most often proved by circumstantial evidence.” State v. Young, 87 Wn.2d 129, 137, 550 P.2d 1 (1976). It is a crime of particularly secret preparation and commission, and the State can seldom produce witnesses to the actual setting of such a fire. Id. Nevertheless, a “well-connected train of circumstances may be as satisfactory as an array of direct evidence” in proving the crime of arson. Id.; State v. Plewak, 46 Wn. App. 757, 765, 732 P.2d 999 (1987); Am. States Ins. Co. v. Symes of Silverdale, Inc., 111 Wn. App. 477, 492, 45 P.3d 610 (2002), rev’d on other grounds, 150 Wn.2d 462, 78 P.3d 1266 (2003).

4 The statute relevantly provides: “When restitution is ordered, the court shall determine the amount of restitution due .... The court shall then set a minimum monthly payment that the offender is required to make towards the restitution that is ordered. The court should take into consideration the total amount of the restitution owed, the offender’s present, past, and future ability to pay, as well as any assets that the offender may have.” RCW 9.94A.753(1).