                                                                                                             COURT rOF_APPEALS


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                                                  V
    IN THE COURT OF APPEALS OF THE STATE OF WASHIS-                                                                            TON


                                                       DIVISION II

STATE OF WASHINGTON,                                                                   No. 44033 -4 -II


                                          Respondent,


        v.



LARNARD LACHELL PINSON,                                                        UNPUBLISHED OPINION


                                          Appellant.


          WORSWICK, C. J. —            A jury returned verdicts finding Larnard Pinson guilty of violation of

a court order, attempted violation of a court order, and witness tampering. Pinson appeals his

convictions, asserting that ( 1) the trial court' s " to- convict" jury instructions misstated the law

and violated his jury trial right by informing the jury that it had a duty to convict him if it found

that the State had proved all the essential elements of its charges beyond a reasonable doubt.

          Pinson also filed a statement of additional grounds ( SAG) for review, in which he


challenges his convictions and sentence, asserting that (2) the trial court erred by failing to

suppress      all   the evidence   used against      him, ( 3) his convictions for attempted violation of a court


order and witness        tampering       violated    his   right   to be free from double   jeopardy, ( 4)   the trial court


                                                                                    continuance motions, ( 5)    the trial
violated      his CrR 3. 3 timely trial     right    by improperly       granting


court imposed an improper sentence with regard to his witness tampering conviction, and ( 6) the

prosecutor committed misconduct by eliciting irrelevant and prejudicial testimony. Additionally,

Pinson'   s   SAG     asserts   that   his defense   counsel rendered       ineffective   assistance   by ( 7) failing   to
No. 44033 -4 -II



file   a motion   to   suppress evidence, (   8) failing to subpoena a witness favorable to the defense, and

 9) failing to object to certain hearsay testimony. We affirm.

                                                      FACTS


          In July 2011, Pierce County Sheriffs Deputies Walter Robinson and Seth Huber

responded to a Pierce County Transit dispatch report of two individuals drinking alcohol in a bus

shelter. When they arrived, the deputies saw Pinson in the bus shelter with Cassandrea Doyle.

At that time, Pinson was prohibited by court order from having contact with Doyle.

          In a nearby trash container, the deputies saw beer cans that were cold and that had

condensation on them. Robinson and Huber believed that Pinson and Doyle were intoxicated.


After Robinson contacted Pierce County Transit and was informed that Pinson was not allowed

on transit property, he arrested Pinson for criminal trespass. Robinson searched Pinson' s

backpack and found an open container of alcohol and two Washington State identification cards,


one belonging to Pinson and the other belonging to Doyle.

          The State filed an information charging Pinson with violation of a court order, alleging

that Pinson   had      contacted and assaulted    Doyle   on   December 24, 2011.   Later, the State amended


its information to charge Pinson with an additional count of violation of a court order based on

his contact with Doyle at the Pierce County Transit bus shelter. The following month, the State

again amended its information to charge Pinson with witness tampering and attempted violation

of a court order based on a telephone call Pinson had made to his mother from the Pierce County

j ail.

          On the first day of trial, the State informed the trial court that it would not be pursuing its

charge against Pinson for the December 24, 2011 violation of a court order because it could not




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No. 44033 -4 -II



locate Doyle, but that it would pursue its remaining charges without the victim testifying as a

witness.




       At trial, Deputies Robinson and Huber testified consistently with the above facts. James

Scollick, the inmate telephone supervisor at the Pierce County Jail, testified about a telephone

call that Pinson had made to his mother from the jail in January 2012; a recording of the

telephone call was played to the jury. Pierce County Deputy Prosecutor Jennifer Sievers testified

about her experience working in the special assault unit of the prosecutor' s office. During

Sievers' s testimony, the following exchange took place:

                     Okay. Now, in situations where you are handling cases where the
                   State]:
       two people involved are related to each other, have you ever had difficulty
        obtaining the cooperation of the victim?
                   Sievers]:    Yes.


                   State]:     In your experience, what are some of the reasons that that can
        happen?
                   Sievers]:     Well, there is   sometimes     a     fear   of retaliation.   The victim is
        fearful that if he or she testifies, then, you know, what might happen at home
        afterwards would not be pleasant.
               Maybe he or she is scared of the other party and doesn' t want to face
       them    And there is also kind of this circle of violence where there is violence at
        the time, and they call the police and prosecution gets rolling, and then the victim
        decides that she loves the other person or he loves the other person and doesn' t
        want to follow through with the prosecution.


Report of Proceedings ( RP) ( July 24, 2012)        at   110 - 111.    Defense counsel objected and the trial


court excused the jury from the courtroom. Defense counsel then moved for a mistrial, arguing

that Sievers was not qualified to testify as an expert witness and that her testimony improperly

suggested that Doyle was absent from trial because she was suffering from battered wife

syndrome. The trial court agreed that Sievers' s testimony was improper, but it denied defense

counsel' s mistrial motion, stating:




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No. 44033 -4 -II



                So, clearly, that   response      is   objectionable.      The issue is, and hopefully I
       excused the jury early enough in that narrative response to be able to unring the
       bell. And I   am    going to —you know, I think I cut it off in time to, in essence, deal
       with it by some lesser means than a mistrial.
                And I am prepared to consider a curative instruction that defense might
       propose.




RP ( July 24, 2012) at 114. When the jury returned to the courtroom, the trial court stated:

       I have an instruction to give to you on some of the responses that you just heard.
       Ms. Sievers was asked some general questions to which she gave some general
       comments .regarding experiences that she may have had from other cases, and
       those   are   totally   unrelated    to   this   case,     and those are not relevant in this
       proceeding.     So those general responses to general experience, I am asking you to
       disregard that testimony and not to consider it in this proceeding.

RP ( July 24, 2012) at 122 -23.

       The jury returned verdicts finding Pinson guilty of violation of a court order, attempted

violation of a court order, and witness tampering. Pinson timely appeals.

                                                   ANALYSIS


                                    I. TO- CONVICT JURY INSTRUCTIONS


        Pinson contends that the trial court erred by providing " to- convict" jury instructions that

misled the jury on its power to acquit. Specifically, Pinson argues that the trial court' s jury

instructions misstated the law and violated his jury trial rights by imposing on the jury a duty to

convict if it found the State had proved the elements of the charged crimes beyond a reasonable

doubt. We disagree.


        The   challenged   language in     each of the    trial   court' s "   to- convict"   jury instructions   stated:
No. 44033 -4 -II



                       If   you    find from the        evidence      that    each   of    these       elements['   1 has been
             proved beyond a reasonable doubt, then it will be your duty to return a verdict of
             guilty.
                    On the other hand, if, after weighing all of the evidence, you have a
             reasonable doubt as to any one of these elements, then it will be your duty to
             return a verdict of not guilty.


Clerk'   s   Papers ( CP)     at   54, 57, 61.    This language is taken verbatim from 11 WASHINGTON


PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4. 21, at 101 ( 3d ed. 2008).


             We have unequivocally rejected the argument Pinson advances here. State v. Davis, 174

Wn.   App.      623, 640 -41, 300 P. 3d 465,            review   denied, 178 Wn.2d 1012 ( 2013); State v. Brown,


130 Wn.       App.     767, 770 -71, 124 P. 3d 663 ( 2005);                State v. Bonisisio, 92 Wn. App. 783, 793 -94,

964 P. 2d 1222 ( 1998).            Accordingly, Pinson' s argument fails.

                                                           II. SAG ISSUES


A.           Suppression ofEvidence

             In his SAG, Pinson first contends that the trial court should have suppressed all the


evidence against him, asserting that the evidence was obtained as a result of an unlawful arrest.

We disagree.

                                                                                                 2
             Pinson did      not challenge   the validity        of   his   arrest at   trial.       And a defendant' s " failure to


move to suppress evidence he contends was illegally gathered constitutes a waiver of any error

associated with         the   admission of       the   evidence."      State v. Mierz, 127 Wn.2d 460, 468, 901 P. 2d


286 ( 1995).       Accordingly, we decline to address the validity of Pinson' s arrest for the first time


1 The trial court' s attempted violation of a court order " to- convict" jury instruction uses the word
 element" singularly. We assume this to be a typographical error.

2 Pinson asserts in his SAG that his previous defense counsel had filed a motion to suppress
evidence, but there is nothing in the record on appeal to support his assertion.


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No. 44033 -4 -II



on appeal. Moreover, even if Pinson had properly preserved this issue, it is clear from the record

that there was probable cause to arrest him.


          Although Pinson' s SAG asserts that officers unlawfully arrested him for criminal

trespass, he fails to explain how the arrest was unlawful. In general, a police officer has probable


cause to arrest a suspect if the officer has trustworthy information sufficient to reasonably

believe that an offense has been or is being committed. State v. Knighten, 109 Wn.2d 896, 899,

748 P. 2d 1118 ( 1988).        Here, the officers arrested Pinson for criminal trespass only after they

had ( 1) received a dispatch report of two individuals drinking alcohol in a Pierce County Transit

bus   shelter, (   2) observed Pinson in the bus shelter, and ( 3) confirmed that Pinson was not


allowed on Pierce County Transit property. This was sufficient to establish probable cause to

arrest   Pinson for      criminal   trespass.   See former RCW 9A.52. 080 ( 1979).


          To the extent Pinson contends that his arrest was unlawful because the exclusion order


prohibiting him from entering Pierce County Transit property had expired, there is no evidence

in the record to support this contention. Accordingly, Pinson' s claim that the trial court should

have excluded the evidence against him because his arrest was unlawful is meritless.

B.        Double Jeopardy

          Next, Pinson contends that his convictions for witness tampering and attempted violation

of a court order violate the constitutional prohibition against double jeopardy. Again, we

disagree.


          Both     our   federal   and state constitutions prohibit '   being ( 1) prosecuted a second time for

the   same offense after acquittal, (       2) prosecuted a second time for the same offense after


conviction, and ( 3)       punished multiple      times for the   same offense. '   State v. Turner, 169 Wn.2d




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No. 44033 -4 -II



448, 454, 238 P. 3d 461 ( 2010) (             quoting State v. Linton, 156 Wn.2d 777, 783, 132 P. 3d 127

 2006)); U. S. CONST.           amend.   V; WASH. CONST.      art.   I, §   9. Pinson' s double jeopardy claim

implicates the third prohibition, in that he contends the trial court punished him multiple times


for the same offense.


          When analyzing a double jeopardy claim, we ask whether the legislature intended the

charged crimes to constitute the same offense. State v. Freeman, 153 Wn.2d 765, 771, 108 P. 3d

753 ( 2005). Freeman             sets out a        part framework for analyzing double
                                              four -                                          jeopardy   claims.   153


Wn.2d     at    771 -73. First, we look to express or implicit legislative intent to punish the crimes


separately; if legislative intent is clear, we look no further. Freeman, 153 Wn.2d at 771 -72.

Second, if the legislature has not clearly stated its intent, we may apply the " same evidence" test

to the charged offenses.3 Freeman, 153 Wn.2d at 772. Third, we may use the merger doctrine to
discern legislative intent. Freeman, 153 Wn.2d                at   772 -73.    Finally, if the two offenses appear to

be the same but each one has an independent purpose or effect, then the two offenses may be

punished separately. Freeman, 153 Wn.2d at 773.

          Because neither the witness tampering statute, RCW 9A.72. 120, nor the violation of a

court order statute,          former RCW 26. 50. 110 ( 2009), has a specific provision expressly authorizing


separate punishments for the same conduct, we turn to the same evidence test to determine


whether Pinson' s convictions violated the constitutional prohibition against double jeopardy.

See,   e. g.,   State   v.   Leming, 133   Wn.   App.   875, 888, 138 P. 3d 1095 ( 2006). Under the same




3
    Washington' s " same evidence" test is sometimes referred to as the " same elements" test or " the
Blockburger test."            Freeman, 153 Wn.2d at 772 ( citing Blockburger v. United States, 284 U.S.
299, 304, 52 S. Ct. 180, 76 L. Ed. 306 ( 1932)).




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No. 44033 -4 -II



evidence test, if each offense contains an element not contained in the other offense, the offenses


are different for double jeopardy purposes. State v. Jackman, 156 Wn.2d 736, 747, 132 P. 3d 136

 2006). The            same evidence           test   requires    that   we   determine "`   whether each provision requires



proof of a           fact   which     the   other   does    not. "'   State v. Baldwin, 150 Wn.2d 448, 455, 78 P. 3d 1005


 2003) (      quoting Blockburger v. United States, 284 U. S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306

    1932)).


           To prove witness tampering as charged here, the State had to prove beyond a reasonable

doubt that Pinson ( 1) attempted to induce Doyle to ( 2) absent herself from any official

proceeding. RCW 9A.72. 120( 1)( b).                          In contrast, to prove attempted violation of a court order as


charged here, the State had to prove beyond a reasonable doubt that Pinson ( 1) intended to


commit the crime of violation of a court order and ( 2) took a substantial step toward the

commission of the crime of violation of a court order.4 RCW 9A.28. 020; former RCW

26. 50. 110.


              Applying the same evidence test here, we hold that Pinson' s convictions for witness

tampering and attempted violation of a court order did not offend the prohibition against double


4
    The violation of a court order statute, former RCW 26. 50. 110, provides in relevant part:
               1)(    a)    Whenever        an order   is   granted under ...      chapter ...     10. 99...   RCW ...    and

              the respondent or person to be restrained knows of the order, a violation of any of
              the following provisions of the order is a gross misdemeanor, except as provided
              in subsections ( 4) and ( 5) of this section:
                             i) ...   restraint provisions prohibiting contact with a protected party.

                             5) A     violation of a court order              issued   under ...   chapter ...    10. 99 .. .
              RCW ...     is a class C felony if the offender has at least two previous convictions
              for violating the provisions of an order ... .




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No. 44033 -4 -II



jeopardy because each crime required proof of a fact that the other did not. The crime of witness

tampering required proof that Pinson attempted to prevent Doyle from appearing at his trial, a

fact not required to prove the crime of attempted violation of a court order. Conversely, the

crime of attempted violation of a court order required proof that Pinson intended to violate the


provisions of court order, a fact not required to prove witness tampering. Accordingly, Pinson' s

double jeopardy claim fails.

C.      CrR 3. 3 Timely Trial Right

       Next, Pinson contends that the trial court' s grant of multiple continuance motions


violated his CrR 3. 3 timely trial right. Specifically, Pinson asserts that courtroom congestion and

the unavailability of a prosecutor are not valid reasons to extend the time for trial under CrR 3. 3.

But the record before us is not sufficient to address the merits of Pinson' s contention. The only

record related to the trial court' s grant of a continuance motion is a brief record of a June 28,


2012 proceeding, in which the trial court stated that it was signing an order continuing the trial

until July 9 because a necessary State witness was unavailable. The record on appeal does not

contain the written continuance order that the trial court signed on June 28, does not contain any

information related to the continuances Pinson appears to complain of in his SAG, and does not


contain any information showing whether Pinson timely objected to those continuances, thereby

preserving this issue for appeal. Accordingly, we decline to address the merits of Pinson' s

timely trial challenge on the record before us.

D.      Sentencing

        Next, Pinson contends that the trial court erred by sentencing him to 29 months of

incarceration for witness tampering because witness tampering is a gross misdemeanor offense.



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No. 44033 -4 -II



This   contention   is   meritless as   RCW 9A.72. 120( 2)   provides, "   Tampering with a witness is a

class C felony."

E.       Prosecutorial Misconduct


         Next, Pinson contends that the prosecutor committed misconduct by eliciting irrelevant

and prejudicial testimony from Sievers regarding her experience with victim witnesses that are

uncooperative with the prosecution. Because the trial court' s curative instruction remedied any

prejudice resulting from Sievers' s testimony, we disagree.

         To establish prosecutorial misconduct, the defendant bears the burden to establish that a

prosecutor' s conduct was both improper and prejudicial. State v. Fisher, 165 Wn.2d 727, 747,

202 P. 3d 937 ( 2009). Prejudice is established " where there is a substantial likelihood the


improper   conduct affected       the   jury." Fisher, 165 Wn.2d at 747.

         Here Sievers' s testimony suggested, but did not explicitly state, that Doyle was not

present to testify at Pinson' s trial because she was scared of Pinson and feared that he would

violently retaliate against her if she testified against him. Because Sievers' s testimony did not

actually state that her general experience with uncooperative victim witnesses applied to Doyle

and because the trial court instructed the jury to disregard Sievers' s testimony about her general

experiences, Pinson fails to show that the improper testimony had a substantial likelihood of

affecting the jury' s verdict. Accordingly, he fails to show that the prosecutor committed

misconduct by eliciting the testimony.

F.       Ineffective Assistance of Counsel

         Next, Pinson raises a number of ineffective assistance of counsel claims. To prevail on

an ineffective assistance of counsel claim, Pinson must show both that ( 1) counsel' s performance




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No. 44033 -4 -II



was deficient and ( 2) the deficient performance prejudiced him. Strickland v. Washington, 466

U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Brockob, 159 Wn.2d 311, 344-


45, 150 P. 3d 59 ( 2006).      If Pinson fails to establish either prong of this test, our inquiry ends and

we need not consider the other prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P. 2d 563

 1996).


             1.   Failure To Move To Suppress Evidence


             Pinson first contends that his defense counsel was ineffective for failing to move to

suppress evidence that was obtained as a result of his unlawful arrest. We disagree. As we

addressed above, the officers here had sufficient probable cause to arrest Pinson for criminal


trespass. Accordingly, Pinson has not shown that he was subjected to an unlawful arrest and,

thus, he cannot demonstrate that his counsel rendered deficient performance by failing to submit

a motion to suppress evidence on this ground at trial.


             2. Failure To Subpoena a Witness


             Next, Pinson contends that his defense counsel was ineffective for failing to subpoena a

witness that would have provided testimony beneficial to his defense. Specifically, Pinson

claims that his defense counsel was ineffective for failing to subpoena the Pierce County Transit

bus driver that reported his trespass to the police. This claim fails as there is no indication in the


record that the unnamed bus driver would have provided testimony beneficial to the defense. See

State   v.    McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995) ( Appellate courts do not


consider matters that are outside the trial record when reviewing an issue on direct appeal.).




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No. 44033- 4- 11



          3.   Failure To Object to Hearsay Evidence

          Finally,.Pinson contends that his defense counsel was ineffective for failing to object to

hearsay evidence. Specifically, Pinson argues that his counsel was ineffective for failing to

object to Deputy Robinson' s testimony that he and Huber " received a call from Transit dispatch

saying there     were   two    people   drinking   in   a   bus   shelter."    RP ( July 24, 2012) at 46. We disagree.

          Hearsay is " a statement, other than one made by the declarant while testifying at the trial

or   hearing,   offered   in   evidence   to   prove   the truth of the       matter asserted."   ER 801(   c).   Here,


Robinson' s statement that he received a call regarding " two people drinking in a bus shelter" was

not hearsay because it was not offered to prove the fact that two people were drinking in the bus

shelter, but rather to explain his reasons for conducting the investigation at the bus shelter. RP

 July 24, 2012) at 46; see State v. Crowder, 103 Wn. App. 20, 26, 11 P. 3d 828 ( 2000)

     Statements not offered to prove the truth of the matter asserted, but rather as a basis for


inferring something else, are not hearsay. ").

          Moreover, even if Robinson' s statement contained inadmissible hearsay, Pinson cannot

show any prejudice resulting from defense counsel' s failure to object to it because both Robinson

and Huber testified that Pinson and Doyle appeared to be intoxicated. Accordingly, even if

objectionable, Robinson' s testimony regarding a report of two people drinking was merely




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No. 44033 -4 -I1




cumulative to other non -
                        hearsay evidence that Pinson and Doyle had been drinking alcohol at the

bus shelter.


        We affirm.


        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.




We concur:




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