                                                                                                  FI
                                                                                       COURT OF APPEALS
                                                                                           OI VISIOIN Il

                                                                                      2013 APP -2      PM 12: 25
                                                                                       S`     0        s I4G O

                                                                                       BY
                                                                                            QEP



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


STATE OF WASHINGTON,                                                No. 41439 2 II
                                                                              - -


                                Respondent,

       V.



DEONDRE LAMAR POSEY,                                          UNPUBLISHED OPINION




       JOHANSON A. . Deondre Lamar
                J.
                 C     —                          Posey appeals his jury conviction and sentence for

attempted first degree murder and first degree unlawful firearm possession, after shooting fellow
                         Jones.
gang member Martin Newson-                     The trial court admitted evidence of Posey's gang

affiliation with the Hilltop Grips, ruling that gang evidence was relevant to prove motive an

premeditation and that its probative . alue outweighed its prejudicial effect. We hold that any
                                     v
error in admitting gang evidence was harmless, so we affirm. We also hold that the trial court
erred in failing to exercise its sentencing discretion in considering prior convictions, and we
remand for resentencing.

                                                 FACTS


       In early September 2009, NewsonJones and Anthony Smith had a fight. Roughly two
                                      -
days later, they resolved   their issues. On   September 9,Newson Jones
                                                                  -       and Liam Hines    happened
No. 41439 2 II
          - -



upon Smith, Christopher Simms, and Steven Lovelace in the Hilltop area of Tacoma, and the
parties interacted   without incident.    Newson Jones and Hines went on their way, and soon
                                                 -

thereafter, Posey and "Jaba"approached Smith, Simms, and Lovelace. Posey told Smith that a

few days earlier, Newson Jones had told Posey that Smith's brother and Simms had tried to rob
                         -
      Jones's
Newson-           house, and that "[
                                   Smith] was      a   cornball and all that other type of stuff." 5


Verbatim Transcript of Proceedings (VTP) PM)at 601. Smith felt disrespected that Newson -
                                         (

Jones had spoken negatively about him, as he believed the two had worked through their earlier
problems. Smith suggested that they all go to Newson- s nearby house to sort through why
                                                    Jones'
Newson Jones spoke negatively about Smith, stating, We can go ahead we can fight."5 VTP
       -                                            "
PM)at 602.

          Smith, Simms, Lovelace, Posey, and Jaba went to find Newson-Jones; they found him
with Hines and Corey Jaggers. Smith confronted Newson Jones and asked why he was calling
                                                      -
him a cornball and why Newson Jones accused Smith's brother and Simms of trying to rob his
                              -
house.    Smith felt that Newson- s comments to Posey contravened the earlier agreement
                                Jones'

resolving the prior dispute between Smith and Newson-
                                                    Jones.

          NewsonJones denied talking about Smith and expressed that he did not know what
                 -

 Smith was talking about. Newson Jones said that Posey "was just trying to get stuff start[ d]."
                                 -                                                        e 5
VTP (PM)at 606. At that point, Posey pulled a gun out from his coat and aimed it at Newson -
 Jones's head. Hines intervened, grabbing Posey's arm and wrestling over the gun to diffuse the

 situation; but,Posey eventually overpowered Hines and shot Newson-Jones.

 1                                                                        Jones.
                                      how many shots Posey fired at Newson-             Smith claims
     Evidence conflicts   regarding
 Posey fired a single shot. Neighbor Douglas Hoang heard two shots. Crime scene investigators
 recovered one shell casing from the scene.

                                                   2
No. 41439 2 II
          - -




         Posey then fled the   scene.   Newson Jones survived, but a bullet reached his spine,
                                               -

confining him to a wheelchair.

         The State                   with   attempted premeditated   first   degree murder   and first
                     charged Posey

degree unlawful firearm possession. The attempted murder charge included an enhancement for
committing the    act while armed with      a   firearm. Both counts included an aggravator for

committing the crime to obtain or maintain his membership or advance his position in his gang's
hierarchy.
                                                                   related
         Before trial, Posey moved to exclude the admission of gang-                evidence. Posey

argued that the gang evidence constituted prejudicial propensity evidence. Posey theorized that
the shooting stemmed from an attempted burglary, perpetrated by Smith and his brother at
Newson-Jones's house; after the burglary, Smith and Newson Jones resolved things, but Posey
                                                           -
rekindled Smith's issues with Newson Jones by telling Smith that Newson Jones called him a
                                     -                                  -

cornball. Then, when Newson Jones denied making those comments about Smith, Posey took
                            -
offense because Newson Jones implied that Posey lied. According to Posey, this incident had
                       -

nothing to do with gangs, so he sought a preliminary hearing to hear from witnesses and
demonstrate that gang evidence would be irrelevant.


2
     RCW 9A. 2.
         a).
         030(
            1)(
            3

3 RCW 9.1.
      a).
      040(
         1
         4 )(
4
     RCW 9.
         533.
           94A.


 RCW 9.
     s).
     535( 4A.
        3)(
        9
 6
     According to Tacoma Police Detective John Ringer, Smith, Posey, Newson-Jones; Simms, and
 Lovelace were all affiliated with the Hilltop Crips.

                                                    3
No. 41439 2 II
          - -



         The State responded in an offer of proof that in gang settings, "minimal things,"

including disrespecting    a   gang member, can   lead to   extreme   violence.   2 Verbtaim Report of

Proceedings (VRP)at 43. The State explained in part, W] ' the [c] issue that has
                                                     ve got
                                                     "[ e       ornball

to be explained. That's the motive. Did you call me a [c] No. Did you call me a liar?
                                                        ornball?
It centers around this [c] issue that has to be explained."2 VRP at 53. " he pivotal issue
                         ornball                                        T

is the [ c] statement. That's the pivotal issue."2 VRP at 77.
          ornball

         The State added that, under res gestae, the jury would understand Posey's intent to shoot

Newson Jones only through a gang dynamic. It summed up its offer of proof: "Now take it to
       -
the gang level, and you've got something inoquous [sic],
                                                       basically, like [c] what does that
                                                                         ornball,
even mean; but it is something that in that world can get you killed, and very nearly did get Mr.
 Newson- ]
       Jones killed." VRP at 54.
                    2

         After hearing the State's offer of proof, the trial court admitted the gang evidence under
ER 404( )
      b stating:

          I do believe as I understand it, I am persuaded by [ the State's]argument,
          particularly the argument focusing on the word [cornball],and the difference
          between a word like [c] which is an inoquous [sic] word in my opinion,
                                ornball,
          and the idea that someone would be upset to the point that they would shoot
          someone else even if they were called basically the inference was or the
          implication was that they were lying.
                   So I do believe it is necessary in order to prove the elements of the crime
          of attempted murder in this case.

2 VRP at 103 04. The trial court added, T] has to be testimony with respect to that, and
             -                          "[ here

the jury needs to be able to understand that. And I don't see how you understand that unless you
 understand it in that context."2 VRP at 104. "[ he evidence needs to be limited to getting us
                                               T]

                with the issue of motive and   premeditation." 2      VRP at 106. And after the State
 to   dealing




                                                    11
No. 41. 39 2 II
      4 - -



requested that the trial court find that the probative value outweighed the prejudicial effect, the
trial court stated, "I think that the probative valueI didn't say that— outweighs the
                                                     —                but

prejudicial impact to the defendant."2 VRP at 106.

       The parties then discussed how the State would introduce the gang evidence. The State

explained that it would call Tacoma Police Detective John Ringer to testify as a gang expert:
                                                 ornball is              derogatory   term.   He's an
       He'
         s     an   expert with knowledge that [c]                   a


        expert on the effect that has on individuals. He's an expert on the issue of in the
        group setting as in this case the disrespect that that implies that causes; that's the
        whole reason, the motive for the crime. It centers on that term.

2VRPat109.


        At trial, the parties questioned various witnesses, including Newson-
                                                                            Jones, Jaggers, and
Smith, as well as Detective Ringer, and none of them confirmed the State's claim that " ornball"
                                                                                      c
had a particularly derogatory meaning in a gang context. Smith testified that his argument with
Newson -Jones, and Posey's shooting Newson-Jones, had nothing to do with their gang
affiliation.   Detective Ringer testified to the importance of respect in gang culture, and how

slightly disrespectful   acts   can   quickly lead   to   violence, even in intra gang conflicts. He also
                                                                                  -


testified that gang members climb the gang hierarchy by committing violent acts, including
shootings. During trial,Posey did not object to the gang -related evidence.
        The jury convicted Posey on both the attempted first degree murder and first degree
unlawful firearm      possession charges.       The jury also found by special verdict that Posey

 committed the attempted first degree murder while armed. The jury did not, however, find that
 Posey committed these crimes to obtain or maintain his membership or advance his position in
 the hierarchy of the Hilltop Crips.




                                                          E
No. 41439 2 II
          - -




       At sentencing, Posey moved for a continuance so that he could research whether his three

prior convictions for a 2006 drive by shooting should be calculated as separate offenses or same
                                   -
criminal conduct in   determining   his offender    score.   At sentencing on the 2006 drive by
                                                                                             -

shooting, the trial court had left unchecked the box on the judgment and sentence form indicating
a finding of same criminal conduct.

       The State challenged Posey's motion, arguing that despite Posey's assertion that the 2006

crimes had occurred on the same day with the same victim, the trial court could not " o back in
                                                                                    g
time and recreate"the sentencing hearing and decide whether those crimes constituted the same

criminal conduct. 7 VRP at 4. Ultimately, the trial court denied Posey's motion, noting, Some
                                                                                         "

other. Court would have to decide they made a mistake. Whether it' today or November 24th or
                                                                 s
next March, I' not going to decide that [the judge] made a mistake when she sentenced Mr.
             m
Posey in 2007. The Court of Appeals would have to make that decision." 7 VRP at 15. The
trial court then sentenced Posey, treating his 2007 convictions as separate criminal conduct for
offender score calculation purposes. Posey appeals.

                                            ANALYSIS


                          I. ER 404( )
                                   b Gang Evidence, Harmless Error

        Posey argues that the trial court erred in admitting evidence of his gang affiliation under
ER 404( )
      b because its prejudicial effect outweighed any probative value relating to his charged
 crime. We hold that even if the trial court improperly admitted gang evidence, any error was

 harmless under the facts presented here.

        An evidentiary error which is not of constitutional magnitude requires reversal only if the
                                                                  the   trial's   outcome.   State   v.
 error, within   reasonable   probability, materially affected



                                                   Col
No. 41439 2 II
          - -




Everybodytalksabout, 145 Wn. d 456, 468 69, 39 P. d 294 (2002). Circumstantial evidence is
                           2            -       3
as admissible and relevant as direct evidence. State v. Brooks, 45 Wn. App. 824, 826, 727 P. d
                                                                                           2

988 ( 1986). Circumstances   relevant to deciding premeditation include "motive, prior threats,

multiple wounds inflicted or multiple shots, striking the victim from behind, assault with
multiple means or a weapon not readily available, and the planned presence of a weapon at the
scene." State v. Ra, 144 Wn. App. 688, 703, 175 P. d 609, review denied, 164 Wn. d 1016
                                                 3                             2

2008).

       Applying the harmless error standard, we must determine whether, within reasonable
probability, the gang evidence materially affected the trial outcome. We conclude, like in State
v. Mee, 168 Wn. App. 144, 275 P. d 1192, review denied, 175 Wn. d 1011 (2012), any error
                               3                              2              that

in admitting gang evidence was harmless; it is harmless here because overwhelming non gang
                                                                                      -
evidence demonstrates that Posey shot Newson Jones with premeditation.
                                             -

       In Mee, the State charged Mee with first degree murder by extreme indifference after he
shot toward a house when he knew people were present both inside and outside at a party. 168

Wn. App. at 150 51. One of the shots caused a victim to die from internal bleeding. Mee, 168
                -
Wn. App. at 151. The trial court allowed evidence that the defendant and others involved were
gang   members to   demonstrate motive under ER       404( ). - 168 Wn. App. at 152.
                                                         b Mee,

Eyewitnesses, however, clarified that Mee shot toward the home and that non gang related
                                                                            -
evidence against Mee was overwhelming and undisputed. Mee, 168 Wn. App. at 159. We held
that the trial court abused its discretion in admitting the gang evidence because its prejudicial

 effect outweighed its probative value, but that the error was harmless. Mee, 168 Wn. App. at
 159 60.
     -




                                                h
No. 41439 2 II
          - -



                                                                                                  to   violence.   He
        Here, Detective Ringer testified about the Hilltop Crips resorting

                                                           act of   disrespect          lead to        shooting.   He
testified how     a    small argument     or   perceived                          can              a




explained that any Hilltop Crip in good standing is prone to act violently and is expected to be
violent. Although the State offered gang evidence to demonstrate premeditation and motive, the
State   proved    these elements        through other,     non -gang   -related   testimony:       The jury heard

testimony of a verbal dispute between Posey and Newson-Jones. Then, Posey pulled a gun from
                               Jones's head.
his coat and aimed it at Newson-                              Hines intervened and grabbed Posey's arm,

wrestling over the gun to diffuse the situation; but Posey eventually overpowered Hines and shot
Newson-
      Jones.


         It is undisputed that Posey shot Newson-Jones. The only issue at trial was whether Posey
shot him with premeditation. The State offered undisputed evidence that Posey brought a gun to
the scene, pointed it at Newson-Jones's head, and struggled over it with Hines for 30 seconds
before shooting.         This evidence overwhelmingly showed that, with premeditation, Posey shot

Newson-Jones. Accordingly, based on the independent evidence showing premeditation, there is
no   reasonable       probability   that admission of the gang      evidence affected the jury verdict. We


hold, therefore, that admission of the gang evidence, if error, was harmless.
                                                  II. SENTENCING


         Posey next argues that the trial court improperly denied his request to continue
 sentencing to research whether his 2007 drive by-
                                               - shooting convictions constituted same criminal
 conduct under RCW 9.
                   a)(
                   525( 4A. Because the trial court mistakenly believed it had no
                      i).
                      5)(
                      9
                                                                                                   criminal conduct,
 discretion to consider whether        Posey's three prior convictions constituted         same
No. 41439 2 II
          - -



it did not address that issue,    as   it must under     state   law.   Accordingly, we remand for

resentencing.

                            A. Standard of Review and Rules of Law


        We review a trial court's discretionary actions on matters within the Washington

Sentencing Reform Act for abuse of discretion or misapplication of the law. State v. Burns, 114
Wn. d 314, 317, 788 P. d 531 (1990).RCW 9. provides,
  2                  2                  525
                                         94A.

        5)( In the case of multiple prior convictions, for the purpose of computing the
         a)
        offender score, count all convictions separately, except:
               i)   Prior offenses which. were found, under RCW 9.a),
                                                                  589( 4A. to
                                                                     1)(
                                                                     9
        encompass the same criminal conduct, shall be counted as one offense, the
        offense that yields the highest offender score. The current sentencing court shall
        determine with respect to other prior adult offenses for which sentences were
        served concurrently or prior juvenile offenses for which sentences were served
        consecutively, whether those offenses shall be counted as one offense or as
        separate offenses using the "same criminal conduct" analysis found in RCW
        a),
        589( 4A.and if the
        9. )( court finds that they shall be counted as one offense,
                1
                9
        then the offense that yields the highest offender score shall be used.

        Under RCW     a)(
                      9. i), must apply "[
                      525( 4A.a]
                         5)(
                         9      sentencing court [] the same criminal

conduct test to multiple prior convictions that a court has not already concluded amount to the
same   criminal conduct."   State v. Torngren, 147 Wn. App. 556, 563, 196 P. d 742 (2008),
                                                                           3

superseded on other grounds, State v. Winborne, 167 Wn. App 320, 273 P. d 454, review
                                                                      3
denied, 174 Wn. d 1019 (2012).A sentencing court "has no discretion" regarding whether to
              2

apply this same criminal conduct test to multiple prior convictions that a court has not already
concluded amount to     same   criminal conduct.       Torngren, 147    Wn.   App.   at   563.   And, the
                                                                                                      "




 7
     Chapter 9. RCW.
              94A



                                                   7
No. 41439 2 II
          - -




language of [RCW 9. )(clear and unambiguous in mandating that the
                 a)
                 525( 4A. appears
                    5
                    9
current sentencing court determine whether to count prior offenses, served concurrently, as

separate offenses." State v. Reinhart, 77 Wn. App. 454, 459, 891 P. d 735, review denied, 127
                                                                  2
Wn. d 1014 (1995). Also, a defendant may waive an objection to the determination of same
  2
criminal conduct by stipulating to facts, even to the trial court's calculation of the offender score
for two or more current offenses. State v. Nitsch, 100 Wn. App. 512, 522, 997 P. d 1000, review
                                                                               2

denied, 141 Wn. d 1030 (2000).
              2

                                              B. Analysis

         Posey contends that the trial court misunderstood its legal obligation to independently
decide the same criminal conduct classification of his three 2007 convictions for drive by
                                                                                        -

shooting. Before sentencing on this matter, Posey explained that one could not distinguish the
three earlier offenses, as they involved the same victim, time, and intent, even though the prior

sentencing court did not count them as same criminal conduct. The State assured the trial court
that Posey's prior convictions did not constitute same criminal conduct, but were part of a plea
deal; and, it presented a copy of Posey's 2007 judgment and sentence, identifying an unchecked
box next to a provision that prompted a sentencing court to indicate if Posey's convictions
constituted   same   criminal conduct.    Posey asked the sentencing court in his present matter to

determine whether those prior offenses qualified as same criminal conduct, but it declined:
         I think that when the Judge in February of 2007 took the plea and sentenced Mr.
         Posey with respect to those three counts, that was the Judge or Court to make that
         determination   as   it relates to those three counts.   Once that determination was
         made, that determination, as far as I' concerned, stays with Mr. Posey forever
                                              m
         absent some other change in the law, and I only decide the current offenses that
 8
     Reinhardt applied former RCW 9. )(
                                  a)
                                  360( 4A.1988),
                                     6
                                     9         which contained nearly identical
                                                       (
 language to today's RCW 9.
                         a).
                         525( 4A.
                            5)(
                            9

                                                    10
No. 41439 2 II
          - -




       I' sentencing to and whether or not there would be some merger or one criminal
        m
       conduct or something like that in front of me, not for something that's already
       taken place. That's my understanding.

7 VRP at 12 13 (emphasis added).The trial court reviewed Posey's prior judgment and sentence
            -

and simply " ccept[ed]this at face value."7 VRP at 14.
           a

       The State cites Nitsch to support its argument that Posey waived any right to reopen his

2007 sentence. In Nitsch, the defendant pleaded guilty in exchange for the State's promise not to

file additional charges, and he agreed to a standard range that implied his two counts were scored

as if they did not constitute same criminal conduct. See Nitsch, 100 Wn. App. at 522. Because
Nitsch agreed to this offender score, Division One of this court held that he waived his objection
to the offender score. It rejected Nitsch's argument that the trial court was required to sua sponte

perform a same criminal conduct analysis. Nitsch, 100 Wn.App. at 520 21.
                                                                     -
       But Nitsch differs from the present matter because it involved a defendant who appealed

his present sentence after agreeing to his offender score for that sentence. Nitsch pleaded guilty
and impliedly agreed to his offender score without objection. Here, Posey contested his present
offender score and the trial court's use of his 2007 judgment and sentence without first inquiring
whether his 2007 convictions constituted          same       criminal conduct.    Therefore, unlike Nitsch,

Posey objected to his present offender score and preserved this issue for appeal.
           Here, the trial court declined to apply a "same criminal conduct" test to Posey's prior

 convictions, apparently under the mistaken impression that an earlier sentencing court had
           concluded that those convictions did not amount to           same     criminal conduct. But this
 already

 assumption is inaccurate: No prior sentencing court had already determined that Posey's earlier
 convictions     did   not   amount   to   the   same    criminal   conduct.      Because   the   trial   court




                                                        11
No. 41439 2 II
          - -




misapprehended the facts about the prior sentencing court's ruling, it misapplied the law in
refusing to consider whether Posey's earlier convictions constituted the same criminal conduct
for purposes of the instant sentencing. See Burns, 114 Wn. d at 317
                                                         2

       Accordingly, we affirm Posey's conviction but 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
040,
2.6.it is so ordered.
 0



                                                                Johanson, A. .
                                                                           0
We concur:




                    l
                   Hun J.

                    Quinn-
                         Brintn 1, J.




                                               12
