                                                                                                            FILED
                                                                                                  rEjtin Of APPEALS
                                                                                                       OntSfON

                                                                                                 21314 OCT 14 AN 8: 55




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

 STATE OF WASHINGTON,                                                              No. 44825 -4 -II


                                          Respondent,


              v.



 CHADWICK DONALD PRITCHARD,                                               UNPUBLISHED OPINION


                                          Appellant.




             LEE, J. —    Chadwick Donald Pritchard appeals his convictions of residential burglary and

first degree trafficking in stolen property, arguing that the trial court violated his constitutional

right   to   present a     defense   and miscalculated    his   offender scores.    We hold that the trial court' s


exclusion of the fact that another person pleaded guilty to a related offense did not deprive

Pritchard of his right to present a defense and we affirm Pritchard' s convictions.


             The State concedes that Pritchard' s offender scores improperly included a 1996 juvenile

residential burglary conviction and a 1998 forgery conviction. We accept the State' s concession.

But, because Pritchard' s offender scores still exceed 9 points without these convictions, we reject


his   claim        that resentencing is   required.    We remand instead so that the trial court can correct


Pritchard'     s    judgment   and sentence   by   striking the 1996 juvenile      residential   burglary   conviction
No. 44825 -4 -II




and correcting the 1998 forgery conviction by having two of the five forgery convictions count as

one under     the   same criminal conduct rule.        On remand, we also direct the trial court to correct the


reference to Pritchard' s current conviction on count I to residential burglary.'.

                                                        FACTS


        Kristopher Anderson hired Pritchard to fell some trees on his property. Pritchard had been

referred
             by his   roommate,    Erik Christen,      who was    Anderson'   s   friend.   Jared Harvey assisted

Pritchard.     Pritchard later came to Anderson' s house to provide an estimate on turning the felled

trees into firewood. Anderson told Pritchard he would be on vacation the following weekend.

         When Anderson returned from his vacation, he found that his house had been burglarized

and   that   several   items,   including   a   safe   and some   jewelry,   were   missing.   He suspected that


Pritchard was responsible and called Christen, who arranged for Anderson to meet with Pritchard.


Pritchard told Anderson that Harvey was responsible for the burglary and had asked him to get rid

of the stolen items. Pritchard added that he helped Harvey break into the safe, dispose of unwanted

items, and sell jewelry from the safe at Gold Buyers at the Mall, a store that buys gold jewelry.

Pritchard also helped Anderson find the safe, which had been dumped in the woods.


         Anderson and Deputy Richard Stoner then went to Gold Buyers, and an employee

produced documents showing that the store paid Pritchard $176 for some jewelry shortly after the

burglary. Stoner later retrieved jewelry from the store that Anderson identified as having come

from his safe.




1 Neither party has raised this issue, but we note that the judgment and sentence erroneously
identifies the conviction on count I as second degree burglary.


                                                            2
No. 44825 -4 -II



         After initially charging Pritchard with second degree burglary, the State charged him by

amended information in count I with residential burglary, as either a principal or an accomplice,

and in count II with first degree trafficking in stolen property. At trial, Anderson, Deputy Stoner,

and a Gold Buyers employee testified to the above facts.


         During Anderson' s cross -examination, defense counsel asked if he knew what had

happened to Harvey as a result of the incident.2 The State objected that the evidence was irrelevant.

After the court excused the jury, the State argued that Harvey' s guilty plea to a related offense did

nothing to disprove Pritchard' s culpability             as   an accomplice.     Defense counsel responded that


Harvey' s guilty plea was relevant because the defense theory was that Harvey alone was

responsible      for the   burglary. The court concluded that the fact that Harvey pleaded guilty to

possession of stolen       property did     not show   that Pritchard was     not involved in the burglary: " There


is nothing about Mr. Harvey' s plea of guilty to Possession of Stolen Property, or even burglary,

that would tend to make it more probable than not that Mr. Harvey did not have an accomplice."

Report of Proceedings ( Mar. 27, 2013) at 76. The trial court sustained the State' s objection.


          Pritchard then testified that he worked for Anderson but learned nothing of Anderson' s

vacation plans.         He explained that Harvey had a job cleaning out storage units and asked for

Pritchard'   s   help   in selling   some   jewelry   that   Harvey   had   received as payment.   Pritchard added


that he gave Harvey a ride to the mall and let Harvey use his identification to sell the jewelry.




2
    Harvey was not available to testify because he died before Pritchard' s trial.

                                                               3
No. 44825 -4 -II




        The trial court instructed the jury on accomplice liability, and its " to convict" instruction

on residential burglary stated that Pritchard was guilty if either he or an accomplice entered or

remained   unlawfully in the   dwelling.   Clerk' s Papers ( CP)   at   29.   During closing argument, the

State asked the jury to find that Pritchard was an accomplice to the residential burglary.

        The   jury found   Pritchard guilty      as   charged.   At sentencing, the State submitted a

memorandum showing Pritchard had an offender score of 16 for the residential burglary conviction

and a score of 12 for the trafficking conviction. Pritchard disagreed with the State' s calculations

and argued that when he was sentenced for five counts of forgery in 1998, the trial court found

that those offenses constituted the same criminal conduct. He also asserted that his 1996 juvenile


conviction of residential burglary had been reversed on appeal.

        After the State responded that there was no same criminal conduct finding in the 1998

judgment and sentence, the trial court rejected Pritchard' s same criminal conduct argument


because the forgeries occurred on different dates. The court also rejected Pritchard' s claim about


the reversed residential burglary conviction because he had no supporting evidence. The trial court

imposed    concurrent   low -
                            end   sentences of   63   months on each count.      Pritchard' s judgment and


sentence identified his conviction on count I as second degree burglary.

        Pritchard appeals his convictions and sentences.


                                              ANALYSIS


A. RIGHT TO PRESENT A DEFENSE


        Pritchard argues that the trial court violated his constitutional right to present a defense by

excluding evidence that Harvey pleaded guilty to possession of stolen property.




                                                       4
No. 44825 -4 -II



             Criminal defendants have a constitutional right to present testimony in their defense. State

v.   Hudlow, 99 Wn.2d 1, 14, 659 P. 2d 514 ( 1983). The Supreme Court has described the importance


of this right:


             The right to offer the testimony of witnesses, and to compel their attendance, if
             necessary, is in plain terms the right to present a defense, the right to present the
             defendant' s version of the facts as well as the prosecution' s to the jury so it may
             decide   where   the truth lies.       Just as an accused has the right to confront the
             prosecution' s witnesses for the purpose of challenging their testimony, he has the
             right to present his own witnesses to establish a defense. This right is a fundamental
             element of due process of law.


State   v.   Smith, 101 Wn.2d 36, 41, 677 P. 2d 100 ( 1984) (        quoting Washington v. Texas, 388 U.S.

14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 ( 1967)).


             The right to present a defense is not unfettered, however, and any defense must consist of

relevant and otherwise admissible evidence.                Hudlow, 99 Wn.2d at 15; State v. Rehak, 67 Wn.


App.    157, 162, 834 P.2d 651 ( 1992), review denied, 120 Wn.2d 1022, cert. denied, 508 U. S. 953


 1993). The admission of evidence lies within the trial court' s discretion, and its decision to admit


or refuse evidence will not be reversed on appeal absent an abuse of discretion. Rehak, 67 Wn.

App. at 162. An abuse of discretion exists only where no reasonable person would take the position

adopted by the trial court. State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 ( 1979).

             Evidence is   relevant   if it has "   any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without       the   evidence."   ER 401.        Pritchard argues that the trial court' s ruling excluding the

evidence of Harvey' s guilty plea compares to the erroneous exclusion of relevant evidence in State

v. Maupin, 128 Wn.2d 918, 925, 913 P. 2d 808 ( 1996) and State v. Jones, 168 Wn.2d 713, 721, 230

P. 3d 576 ( 2010).




                                                             5
No. 44825 -4 -II




          The defendant in Maupin was charged with first degree felony murder based on

kidnapping, and he sought to admit the testimony of an alibi witness who would have testified to

seeing the victim alive and in the hands of someone else after the time of her alleged kidnapping

and murder.       128 Wn.2d         at   920, 922. The Supreme Court ruled that exclusion of this evidence


was reversible error because the proposed testimony would have brought the State' s version of the

events into question and would have pointed directly to someone else as the guilty party. Maupin,

128 Wn.2d at 928.


          Reversible error also occurred in Jones, where the trial court refused to allow Jones to


present   testimony      that the   victim consented       to   sex    in   a rape prosecution.   168 Wn.2d   at   721.   The


exclusion    of   this    evidence         of "   extremely high         probative    value"   violated the defendant' s


constitutional rights because it constituted his entire defense. Jones, 168 Wn.2d at 721.


          The ruling excluding the fact of Harvey' s guilty plea is not comparable to the rulings in

either   Maupin     or    Jones.         Here, both parties introduced considerable evidence of Harvey' s

involvement in the         burglary during           Pritchard'   s   trial.   The jury was instructed on accomplice

liability, and the State focused during closing argument on Pritchard' s culpability as Harvey' s

accomplice.       The issue before the jury was whether Pritchard was guilty of the charged crimes

either as   a principle or      as       Harvey' s   accomplice.         The fact that Harvey had pleaded guilty to

possession of stolen property did not tend to make Pritchard' s involvement and the nature of his

involvement any       more    or less      probable.    ER 401.        The evidence of Harvey' s plea was simply not

relevant. Thus, the trial . ourt did not violate Pritchard' s right to present a defense by excluding
                          c

evidence that Harvey pleaded guilty to possession of stolen property.




                                                                  6
No. 44825 -4 -II



          Moreover, Harvey' s plea of guilty to possession of stolen property does not show, as

Pritchard   now argues,    that   Harvey     accepted    responsibility for the   burglary. We see no abuse of

discretion in the trial court' s conclusion that the evidence of Harvey' s plea did not further

Pritchard' s defense and was irrelevant.

          Even if error did   occur,   it   was   harmless. " A constitutional error is harmless if the appellate


court is convinced beyond a reasonable doubt that any reasonable jury would have reached the

same result    in the   absence of     the   error."    State v. Guloy, 104 Wn.2d 412, 425, 705 P. 2d 1182

 1985),   cert.   denied, 475 U.S. 1020 ( 1986).           Evidence of Harvey' s plea to possession of stolen

property would have been cumulative of the admitted evidence that Harvey was in possession of

Anderson' s property, and the plea evidence would not have made Pritchard' s involvement any less

likely. Based on the evidence, we have no doubt that the jury would have convicted Pritchard as

charged even if the additional evidence of Harvey' s guilty plea was admitted.

B. OFFENDER SCORES


          Pritchard also argues that the trial court miscalculated his offender scores by refusing to

count all five of his 1998 forgery convictions as the same criminal conduct and by including the

1996 juvenile residential burglary conviction that was reversed on appeal. The State concedes that

 1) two of the five 1998 forgeries convictions should be counted as one under the same criminal

conduct rule and (2) the 1996 conviction does not count because it was reversed. The State argues


that resentencing is not required, however, because Pritchard' s offender score for each current

conviction remains      9 +, as set forth in his judgment and sentence.


          We review an offender score calculation de novo, but we review a determination of what

constitutes the same criminal conduct for abuse of discretion or misapplication of the law. State




                                                             7
No. 44825 -4 -II



v.   Mutch, 171 Wn.2d 646, 653, 254 P. 3d 803 ( 2011).               Offenses count as one under the same


criminal conduct rule if they occurred at the same time and place and involved the same victim

and the same criminal intent. RCW 9. 94A.589( 1)( a).

         The 1998 forgery judgment and sentence shows that all five of Pritchard' s forgeries

occurred on    different days.     Nevertheless, the same judgment and sentence also shows that the


1998 sentencing court found that two of the forgeries, counts I and IV, constituted the same

criminal conduct.3 The current sentencing court was bound by that finding. State v. Johnson, 180

Wn. App. 92, 102 -03, 320 P. 3d 197,      review     denied, 332 P. 3d 984 ( 2014); RCW 9. 94A.525( 5)( a)( i).


The current court' s discretion was not limited, however, with regard to the remaining forgery

convictions.   Johnson, 180 Wn.        App.   at   104. We see no abuse of discretion in its determination


that these   convictions   did   not constitute    the   same criminal conduct.   See State v. Young, 97 Wn.

App.    235, 240 -41, 984 P. 2d 1050 ( 1999) (           same criminal conduct finding inappropriate where

forgeries were committed on separate days and were not part of single transaction or criminal


episode).     Our acceptance of the State' s partial concession on this issue reduces Pritchard' s


offender score by 1 point on the residential burglary conviction and by one point on the trafficking

conviction.    RCW 9. 94A.525( 7), ( 16).


         With regard to the 1996 juvenile residential burglary conviction, the State faults Pritchard

for producing no evidence of its reversal during sentencing, but concedes that the conviction was




3 The judgment and sentence shows that counts I and IV occurred one day apart and that counts I,
II, III, and V occurred on different days over a two -
                                                     week span.


                                                            8
No. 44825 -4 -II



reversed and should not count. Court records show that we reversed the 1996 juvenile residential

                         State        Pritchard, noted        89 Wn.   App.   1046 ( 1998). This reversal reduces
burglary   conviction.           v.                      at




Pritchard' s offender score on his current residential burglary conviction by an additional point and

his offender score on the trafficking conviction by an additional half point.4 RCW 9. 94A.525( 7),
 16).


        Because Pritchard' s offender scores on both counts still exceed 9 with these reductions, the

offender scores of   9+ and the standard ranges listed in his judgment and sentence do not change.


RCW 9. 94A.510. As stated, the trial court sentenced Pritchard to the bottom of the standard range

on each count. Consequently, resentencing is not required. However, we remand for the purpose

of correcting the criminal history listed in Pritchard' s judgment and sentence by striking the 1996

juvenile residential burglary conviction and counting two of the five 1998 forgery convictions as

one point under the same criminal conduct rule. In addition, the reference to the current conviction


on count I shall be corrected to reflect Pritchard' s conviction of residential burglary based on RCW

9A.52. 025.




4 With these corrections, Pritchard' s offender score on the residential burglary is 13 based on the
following points: 2 points for a prior adult burglary; 7 points for other prior adult felonies; 2 points
for two juvenile burglaries; 1 point for three other juvenile convictions; and 1 point for the other
current conviction.      RCW 9. 94A.525( 16).       His offender score on the trafficking conviction is 11
based on 8 points for his prior adult felonies; 2 points for his juvenile convictions; and 1 point for
his other current conviction. RCW 9. 94A.525( 7).


                                                              9
No. 44825 -4 -II



        We affirm the convictions and remand for correction of Pritchard' s judgment and sentence

consistent with this opinion.


        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:




                                                10
