IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                               No. 68269-5-1                          o
                                                                                    coo
                    Respondent,
                                               DIVISION ONE                         as
                                                                                    pV,
             v.                                                               7-0

                                                                                    —CT3i"

DAVID S. SOLOMONA,

                    Appellant,                                                       ho
                                                                               O
                                                                               —1
                                                                                          1—1

             and
                                               UNPUBLISHED OPINION
MARY BETH BREER, NATHANIEL
LAUIFI, and DOMINIQUE RENEE                     FILED: April 29,   2013
HERRON, and each of them,

                    Defendants.




      Becker, J. —Ajury found David Solomona guilty offirst degree robbery,
unlawful possession ofa firearm, witness tampering, and delivery of
methamphetamine. We conclude that the trial court did not err in admitting
evidence of Solomona's prior assault conviction and that the State ensured jury
unanimity by electing the incident that constituted the witness tampering charge.
The arguments in Solomona's statement of additional grounds for review are also
without merit. We affirm.
No. 68269-5-1/2




      In December 2010, Michael Burns permitted David Solomona, a recent

acquaintance, to move into his Maple Valley house. At Burns's request,
Solomona agreed not to bring any firearms onto the property or into the house.
Cassandra Nuezca, Solomona's girl friend, also stayed in the house and

regularly smoked methamphetamine with Solomona.
      One night, Burns was awakened by a "loud boom." He ran downstairs
and discovered Solomona on the deck holding a camouflage shotgun with a

pistol grip. Solomona explained that he had seen someone outside and had fired
a warning shot into the air. Burns told Solomona to leave immediately, and
Solomona complied. Solomona and Nuezca returned the following morning, and
Burns allowed them to stay several more days.
       On January 8, 2011, Solomona called Burns, apologized for his conduct,
and arranged a time to pick up the rest of his possessions. Just before the
arranged time, Solomona called and said that his cousin and two other people
would be stopping by to help. Solomona told Burns that he would be there in five
or ten minutes.

       A short time later, two men and a woman arrived at Burns's house. Burns

let them in and waited for Solomona to arrive. When Solomona did not appear,

Burns helped one ofthe men carry a mattress. The man then pointed a handgun
at Burns's head and threatened to kill him. Burns bolted towards the open front

door, but the woman closed it before he could escape.
       The two men then tackled Burns and beat him on the head with the gun.

One of the men kicked Burns in the face, rendering him briefly unconscious.


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When Burns awoke, he saw the individuals removing his two large-screen

televisions.

       Sometime before the robbery, Solomona told Nuezca that he was

planning to steal Burns's televisions so he could pay back the $400 that he owed
her. On the day of the robbery, Solomona called Nuezca and said that "the
people that are going to help me get your money" were "almost here." Solomona
later told Nuezca that he had discarded a handgun because it might have his

fingerprints and Burns's blood on it. Nuezca helped Solomona look for the gun,
but they could not find it. Nuezca later showed the area to the police, who
recovered the handgun.

       On the day ofthe robbery, Solomona asked his friend Gregory Potter to
help him with the move. Solomona and Potter drove around for awhile, stopped
for something to eat, and then returned to Potter's house. Two men and a
woman stopped by and carried a television set into Potter's house. Initially,
Potter believed the television belonged to Solomona.

       After his arrest, Solomona placed a series of telephone calls from jail.
Solomona called Potter and told him to tell the police that the television was

"from the street." Solomona repeatedly called Nuezca and told her to "keep your
fucking mouth shut" and not to talk to anybody about the robbery. Solomona's
calls were recorded and played at trial.

        The State charged Solomona with one count of robbery in the first degree
while armed with a firearm, two counts of unlawful possession of a firearm in the

first degree, one count of tampering with a witness, and one count of delivery of

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methamphetamine. The jury found him guilty as charged, and the court imposed

a standard range sentence.

                              Prior Assault Conviction

      Solomona contends that the trial court erred in admitting evidence of his

prior conviction for second degree assault, which constituted an element of the
unlawful possession of a firearm charge. He claims that defense counsel offered
to stipulate to admission ofthe conviction as an unnamed "serious offense" and
that the deputy prosecutor refused to accept that offer.
       When a prior conviction constitutes an element of the current offense, a
defendant may not stipulate to the existence ofthe element in order to remove it
completely from the jury's consideration. State v. Gladden, 116 Wn. App. 561,
566, 66 P.3d 1095 (2003). But if the defendant offers to stipulate to an unnamed
prior conviction, the trial court violates ER 403 by not accepting the stipulation.
Old Chief v. United States. 519 U.S. 172, 191, 117 S. Ct. 644, 136 L. Ed. 2d 574

(1997); see also State v. Johnson. 90 Wn. App. 54, 950 P.2d 981 (1981) (trial

court erred in admitting prior rape conviction in prosecution for unlawful
possession of a firearm).
       In order to prove unlawful possession ofa firearm in the first degree, the
State had to establish that Solomona owned or possessed a firearm "after having

previously been convicted ... of any serious offense as defined in this chapter."
RCW 9.41.040(1 )(a). Solomona's prior conviction for second degree assault was
a "serious offense" as defined in RCW 9.41.010(16)(a) and (3)(a).




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No. 68269-5-1/5




       Prior to trial, the deputy prosecutor informed the trial court that he been

discussing "a stipulation" with defense counsel and that he had not yet decided
"whether I'm willing to do the stipulation to that or not at this time." Although the
parties continued to discuss the precise format in which to present the
information to the jury, defense counsel expressly noted that he had no objection
when the State sought admission of a certified copy of the assault judgment and
sentence. And defense counsel later agreed to submit a highly redacted copy of

the judgment and sentence to the jury.
       Contrary to Solomona's assertions, nothing in the record supports his
claim that defense counsel sought to stipulate to an unnamed conviction. On the
record before us, we must presume that defense counsel made a reasonable
tactical decision to identify the prior conviction associated with the firearm counts,
rather than risk jury speculation that the unnamed "serious offense" involved an
even more violent crime. See State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260

(2011) (strong presumption that defense counsel's performance reasonable).
Solomona has failed to demonstrate that the trial court erred in admitting

evidence of his prior assault conviction.

                                    Jury Unanimity

       Solomona contends that the trial court violated his right to a unanimous

jury when it failed to give a unanimity instruction on the witness tampering
charge. He argues that both the telephone call to Gregory Potter and the calls to
Cassandra Nuezca could have formed the basis for the conviction.




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       Criminal defendants in Washington have a right to a unanimous jury

verdict. Wash. Const, art. I, § 21: State v. Ortega-Martinez, 124 Wn.2d 702,

707, 881 P.2d 231 (1994). When the State presents evidence of several acts

that could constitute the crime charged, the jury must unanimously agree on

which act constituted the crime. State v. Kitchen. 110 Wn.2d 403, 411, 756 P.2d

105 (1988). To ensure jury unanimity, "the State must tell the jury which act to
rely on in its deliberations or the [trial] court must instruct the jury to agree on a
specific criminal act." Kitchen. 110 Wn.2d at 409: see also State v. Petrich. 101
Wn.2d 566, 572, 683 P.2d 173 (1984). "When the State fails to make a proper
election and the trial court fails to instruct the jury on unanimity, there is

constitutional error." Kitchen. 110 Wn.2d at 411.

       The State does not dispute that both Solomona's recorded call to Gregory
Potter, asking him to tell the police thatthe television was "from the street," and
the multiple calls to Cassandra Nuezca could have supported the conviction for
witness tampering. We agree with the State, however, that the deputy
prosecutor elected the calls to Nuezca as the basis for the charge during closing
argument.

       The deputy prosecutor devoted only a single, brief section of closing
argument to the witness tampering charge. After referring to the elements of the
offense, he commented that "the best thing is in this particular offense, it's just
the defendant who speaks for himself." The deputy prosecutor then played some
of the recorded calls that Solomona placed to Nuezca from jail. After playing the




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No. 68269-5-1/7



recording, the deputy prosecutor quoted the key phrases from the recording:

             "I want you to shut the fuck up and not say anything to
      anybody." "I want you not to go to court." "Promise that you won't
      say anything else." So guilty of tampering with a witness.
He then concluded the argument with "The defendant said it a//."l1]
      The deputy prosecutor included no reference to Potter during the closing
argument on witness tampering. He had already played the recording ofthe call
to Potter much earlier during closing argument and urged the jury to consider it
as evidence that Solomona had participated in the robbery. Both before and
after playing the recording ofthe calls to Nuezca, the deputy prosecutor focused
the jury's attention exclusively on the words that Solomona used during those
calls. He also repeated the key phrases that Solomona had used and concluded
that the "defendant said it all." Given the State's express reliance on the call to

Potter as evidence of Solomona's participation in the robbery, the exclusive
references to Solomona's calls to Nuezca during the argument on witness

tampering, and the repeated assertions that Solomona's words during those
specific calls proved witness tampering, the State effectively elected the calls to
Nuezca as the basis for the witness tampering charge. The State did not violate

Solomona's right to a unanimous jury.

                    Statement of Additional Grounds for Review

       In his statement of additional grounds for review, Solomona contends that
the evidence was insufficient to support his conviction for two counts of unlawful
possession of a firearm in the first degree. But the jury heard evidence that

    1 (Emphasis added.)

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No. 68269-5-1/8




Solomona admitted disposing of the handgun after the robbery. Michael Burns

testified that he repeatedly saw Solomona holding the shotgun. Viewed in the

light most favorable to the State, the evidence clearly established that Solomona
possessed or controlled both firearms. See RCW 9.41.040(1 )(a).

      Solomona's challenge to the sufficiency of the evidence to establish

unlawful delivery of methamphetamine is equally meritless. Nuezca testified that

Solomona repeatedly provided her with methamphetamine.

      Solomona contends that the deputy prosecutor committed misconduct by

continuing to question Dominique Herron after Herron exercised his Fifth
Amendment right to remain silent. But Herron had previously pleaded guilty to
charges arising out of his participation in the robbery. He therefore had no
privilege to refuse to answer the questions, and the trial court properly found him
in contempt. Solomona has failed to demonstrate any misconduct.
       Solomona claims that he was denied his right to effective assistance of

counsel because of a conflict and breakdown in communication. But because

these allegations rest on matters that are outside the record, they cannot be
considered on direct appeal. State v. McFarland. 127 Wn.2d 322, 337-38, 899
P.2d1251 (1995).

       Finally, Solomona contends that the trial court violated his CrR 3.3 speedy
trial rights because he never signed a continuance. But CrR 3.3 does not require
the defendant's agreement for every continuance. See CrR 3.3(f)(2). Because
Solomona has failed to identify "the nature and occurrence of [the] alleged
errors," we will not consider them. RAP 10.10(c).


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No. 68269-5-1/9




      Affirmed.




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WE CONCUR:




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