                                                                        FILED 

                                                                    OCTOBER 28, 2014 

                                                                In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                            )
                                                )      No. 31037-0-111
                     Respondent,                )
                                                )
      v.                                        )
                                                )
CHRISTOPHER GEORGE NICHOLS,                     )       UNPUBLISHED OPINION
                                                )
                     Appellant.                 )

       SIDDOWAY, C.J. -    Christopher Nichols felt the full weight of the changes in

sentencing law made by the 1995 "Hard Time for Armed Crime" Act when he received a

127.5-year sentence for crimes arising out of a single incident: a burglary, in which the

ex-felon stole a gun safe containing 23 firearms. He appeals, arguing that the trial court

erred in admitting evidence of a roughly contemporaneous murder committed by his

accomplice in the burglary, and in refusing to consider his request for an exceptional

downward sentence. Because we find no error and a statement of additional grounds

filed by Mr. Nichols has no merit, we affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       On July 20, 2012, a community corrections officer made a call to the Stevens

County home of a probationer, and the door was answered by the probationer's brother,
No. 31037-0-111
State v. Nichols


Eric Booth. Lacerations and contusions on Booth's face matched a description of injuries

the officer had been told had likely been sustained by a person involved in the murder of

63-year-old Gordon Feist several days earlier. Feist had been found dead in the driver's

seat of his utility vehicle, which had crashed into a power pole off a road near his home.

Examination of his body revealed that before the crash (and evidently precipitating it)

Feist had been shot twice in the right side of his head. Damage to the windshield and

dashboard suggested that the shooter had been sitting in the front passenger's seat, had

been thrown forward violently when the utility vehicle crashed into the pole, and would

have sustained significant facial injuries as well as injury to one or both knees.

       Deputies had recovered two handguns at the scene of the accident. The first was a

revolver belonging to Mr. Feist and the second was a .22 magnum Derringer pistol,

which had been used to kill Mr. Feist. The serial number on the Derringer showed that it

was one of 23 firearms that had been stolen (along with other items) from Stevens

County resident Robert Hannigan about a month earlier.

       Given Mr. Booth's injuries, and because he was acting nervous, the corrections

officer contacted the sheriffs department and Detective Michael Gilmore traveled to the

Booth home. Within the prior week, the sheriffs department had been contacted by

witnesses who had come across both a Honda car that had been taken during the burglary

of the Hannigan home and a number of the stolen guns. The Honda car had been found

abandoned, pushed over an embankment. The guns had been found after the owner of

                                              2

1
1

     No. 31037-0-111
     State v. Nichols


     property on Old Dominion Road came across a pried-open gun safe on state land near his

     property. When sheriff s deputies searched the area, they found other items stolen in the

     Hannigan burglary, including the guns, which had been buried in black trash bags.

            Upon seeing Mr. Booth's injuries, Detective Gilmore found them to be consistent

     with those that would have been suffered by Mr. Feist's passenger. He also saw a box of

     trash bags with red drawstrings inside the Booth home that were identical to the bags

     recovered with the buried fireanns. The detective arrested Mr. Booth on suspicion of

     murder after Mr. Booth's father told the detective that he first saw his son's injuries on

     the prior Sunday night or Monday morning-timing consistent with the Feist murder-

     that he did not believe his son's story about having sustained the injuries in a motorcycle

     accident, and that his son had perfonned work at Mr. Feist's property several weeks

     earlier. A search of Mr. Booth's vehicle pursuant to a search warrant resulted in the

     discovery of a Walther .22 caliber pistol and other items stolen from the Hannigan home.

            Mr. Booth confessed to the murder of Mr. Feist on July 26. He told detectives

     that on the day of the murder, he and two friends, Collette Pierce and Jesse Fellman-

     Shimmin, had driven to Mr. Feist's house intending to burglarize it. Mr. Booth knew

     from performing a plumbing job at the residence that Mr. Feist owned a safe containing

     money and other valuables. The three friends parked about a mile down the road and

     walked up to the house. Mr. Booth had brought the Derringer, which he had obtained

     several weeks earlier when he and the defendant, Christopher Nichols, burglarized the

                                                   3

No. 31037·0·111
State v. Nichols


Hannigan home. Mr. Fellman·Shimmin was armed with a crowbar. When they arrived

at the house, Ms. Pierce knocked on the door and, when Mr. Feist answered, told him a

story about running out of gas.

       Mr. Feist, who was armed with a revolver, retrieved a can of gas from his garage,

put it in the back of a utility vehicle and told the three that he would give them a ride to

their car. They climbed aboard but as they drove toward the car, Mr. Booth became

worried that Mr. Feist was going to figure out what they were up to and would shoot

him-so Mr. Booth shot first, hitting Mr. Feist twice in the head. Mr. Fellman·Shimmin

was the only one able to jump out ofthe vehicle before it crashed into a power pole. Mr.

Booth and Ms. Pierce were thrown forward and Mr. Booth lost hold of the Derringer.

Unable to find it, he left it at the scene of the accident.

       The three ran back to Mr. Fellman·Shimmin's car and drove to a nearby

campground, where they started a campfire and burned their bloodied clothing. Mr.

Fellman·Shimmin called Mr. Nichols to say they needed help and Mr. Nichols drove to

the campground to meet them. Upon learning that Mr. Booth had left the stolen

Derringer behind, Mr. Nichols was upset. He drove to the reported scene of the accident,

only to have to tum back because the sheriffs department was already there.

       Mr. Booth confessed to the Hannigan burglary as well, telling Detective Gilmore

that he had previously worked at the Hannigan home and had burglarized it with Mr.

Nichols. Mr. Booth drove, and left his car outside a locked gate on the driveway. After

                                                4

No. 31037-0-III
State v. Nichols


he and Mr. Nichols determined that no one was home, they found a way in and took a

number of items, including jewelry, $10,000 worth of ammunition, and a locked gun safe

located in a bedroom closet, which they moved outside using a dolly. They took a Honda

car from the garage, loaded the stolen items into it, and Mr. Nichols drove the car to the

driveway gate, where the two men cut the lock. They then drove in separate cars to a

piece of remote state land not far from Mr. Booth's home, where they hid the stolen

property. Mr. Nichols told Mr. Booth that he knew a place to dump the Honda car; Mr.

Booth followed him to a spot on Cole Road, where Mr. Nichols put the car in neutral and

pushed if off the road into a ravine.

       Mr. Booth told detectives that at some point after the burglary, Mr. Nichols

enlisted the help of Mr. Fellman-Shimmin to break into the safe. Mr. Fellman-Shimmin

worked at a wrecking yard and had access to heavy tools. Mr. Nichols drove to the

wrecking yard to pick up Mr. Fellman-Shimmin, who brought two crowbars, and the two

men drove in Mr. Nichols's truck to where the safe was hidden under a large pile of

brush. They were soon joined by Mr. Booth. After they pried open the safe, they sorted

the guns based on their value and which would be easiest to sell.

       Mr. Fellman-Shimmin kept two guns as compensation for opening the gun safe.

The men took some of the guns with them and placed others in garbage bags and butied

them in the ground.




                                             5

No. 31037-0-111
State v. Nichols


       Mr. Booth told officers that Mr. Nichols and he had later driven into Spokane,

where Mr. Nichols had pawned two of Mr. Hannigan's rings at a Pawn 1 store and the

men had scrapped Mr. Hannigan's belt buckles at Pacific Steel and Recycling. Detective

Gilmore was quickly able to confirm that Mr. Nichols had pawned two rings at Pawn 1

and drove to Mr. Nichols's home the same day to question him about any involvement

with Mr. Booth, Mr. Fellman-Shimmin, or Ms. Pierce in the Feist murder or burglaries

involving firearms. Mr. Nichols denied involvement on all counts.

       Detective Gilmore thereafter traveled to Pawn 1, determined that it had required

picture identification from Mr. Nichols, obtained the receipt signed by Mr. Nichols, and

obtained the Hannigans' identification of the pawned rings. Based on that evidence and

Mr. Booth's statement, the State charged Mr. Nichols and an arrest warrant issued on

August 8. Mr. Nichols was charged with one count of residential burglary, nine counts of

theft of a firearm, one count of theft of a motor vehicle, nine counts of first degree

unlawful possession of a firearm, and one count of first degree trafficking in stolen

property.

       Based on Mr. Booth's admission that he and Mr. Fellman-Shimmin had shot some

of the stolen firearms at the home of Mr. Nichols's girl friend, detectives executed a

search warrant at her home on August 17. They found ammunition and two of the

firearms stolen from Mr. Hannigan. A lab analysis matched fingerprints on one of the

guns to those of Mr. Nichols.

                                              6

No. 31037-0-II1
State v. Nichols


       At the time Mr. Booth provided his statement to detectives, Mr. Fellman-Shimmin

was in jail, having been arrested for a probation violation. Ms. Pierce was arrested the

day after Mr. Booth provided his statement. Both Mr. Fellman-Shimmin and Ms. Pierce

initially denied any involvement in the Feist murder, but both later relented and agreed to

provide statements that proved to be consistent with Mr. Booth's. Mr. Booth, Mr.

Fellman-Shimmin, and Ms. Pierce all eventually reached plea agreements requiring that

they testify against Mr. Nichols. Among other inculpatory information they could

provide, all three told detectives that when Mr. Nichols met them on the night of the Feist

murder, he had several of the stolen Hannigan firearms with him.

       Among pretrial motions in limine filed by Mr. Nichols was a motion to preclude

the State from "making any reference to the contact that allegedly occurred with

Christopher Nichols, Jesse Fellman-Shimm[i]n, Eric Booth, or Collette Pierce on the

night of the Feist murder or any other reference to any alleged involvement in the crime."

Clerk's Papers (CP) at 199. The trial court denied the motion, explaining that it viewed

evidence of the events of that night of the Feist murder as res gestae. The court indicated

it would consider a limiting instruction as to the evidence, but the defense never

requested one.

      Evidence at Mr. Nichols's trial included the testimony of Mr. Booth, Mr. Fellman-

Shimmin, and Ms. Pierce as to the events of the night of the Feist murder. All three were

cross-examined by the defense about their agreements to testify against Mr. Nichols in

                                             7

No.3lO37-0-1I1
State v. Nichols


exchange for reduced sentences for the murder. Other evidence against Mr. Nichols

included the testimony of an employee of Pawn 1 who testified that Mr. Nichols had

indeed pawned the two Hannigan rings on July 6, and a surveillance video from Pacific

Steel taken the same day, which captured Mr. Nichols and Mr. Booth selling the

Hannigan belt buckles for scrap. The evidence included a recorded telephone call from

the Stevens County Jail between Mr. Nichols and his girl friend, in which she informed

Mr. Nichols that she had come home the prior night to find law enforcement executing a

search warrant at her home, during which they found a bag with guns in it, bullets, and

bullet casings on the ground outside the home. Among statements made during the call

were Mr. Nichols's statement that his mother need not worry about hiring a particular

defense lawyer because "I'm fucked now," and Mr. Nichols's agreement that his

girl friend should say that she did not know which ofMr. Nichols's friends had been in

and out of her house when she was not there, or who had "brought shit in and out of [her]

house." Report of Proceedings (RP) at 720-21.

      The jury found Mr. Nichols guilty of each of the 21 counts charged. Given the

standard range for the offenses and the statutory requirement that the unlawful possession

of a firearm counts and firearm theft counts run consecutively to one another, those 18

counts alone would result in a standard sentence of 123 to 163.5 years.

      The defense asked that the court impose an exceptional sentence downward by

either running the 21 counts concurrently or imposing terms below the standard range. It

                                            8

No. 31037-0-111
State v. Nichols


argued that a life sentence was excessive for a single act of theft, was disproportionate

compared to the punishment imposed on like offenders, and was disproportionate

considering the comparatively low sentences that Mr. Booth, Mr. Fellman-Shimmin, and

Ms. Pierce received for the murder-26.5 years, 25 years, and 15 years, respectively.

       The State responded that a standard range sentence was not excessively harsh

given Mr. Nichols's criminal history and the fact that the object of the burglary was to

steal a gun safe. It argued that the sentence was consistent with the Hard Time for Armed

Crime Act (HTACA), Laws of 1995, chapter 129, which was intended to result in lengthy

sentences for armed career criminals.

       The court acknowledged the harshness of the sentence but observed that the

legislature clearly intended that firearm offenses should receive harsh punishment. It

imposed 90 months for each first degree unlawful possession of a firearm and 80 months

for each firearm theft. For the residential burglary, theft of a motor vehicle, and

trafficking in stolen property charges, the court imposed standard range sentences of

84 months, 50 months, and 80 months, respectively. As provided by statute, it ordered

that the firearm offenses run consecutively to one another and that they run concurrently

with the sentences for burglary, theft, and trafficking. The result was a total sentence of

127.5 years. Mr. Nichols appeals.




                                             9

No. 31037-0-111
State v. Nichols


                                       ANALYSIS

       Mr. Nichols makes two assignments of error: first, that the trial court erred by

admitting evidence of an "unrelated murder" in which he was not involved; and second,

that it erred by failing to consider his request for an exceptional sentence downward. We

address the assignments of error in tum.

                            1. Evidence a/Gordon Feist murder

       One of Mr. Nichols's 14 pretrial motions in limine sought to exclude certain

evidence relating to the murder of Gordon Feist. It is important to focus on precisely

what Mr. Nichols was seeking to exclude. His 14th motion in limine asked the court to

prohibit the State

       from making any reference to the contact that allegedly occurred with
       Christopher Nichols, Jesse Fellman-Shimm[i]n, Eric Booth, or Collette
       Pierce on the night of the Feist murder or any other reference to any alleged
       involvement in the crime.

CP at 199.

       When the motion was argued, Mr. Nichols's lawyer was clear that the "contact" he

was talking about was his client's "supposedly" traveling to the campground after the

"Feist burglary gone bad ... had been done, and-and, you know, conversations taking

place, certain conduct." RP at 127. The prosecutor responded that Mr. Nichols was in

possession of two of the stolen firearms that night, and expanded on evidence of the

contact:


                                             10 

No. 31 037-0-II1
State v. Nichols


                After Mr. Feist was shot, those three individuals went out to Rocky
        Lake, they were burning their clothes. They made contact with Mr.
       Nichols. It's alleged that Mr. Nichols then comes out, he's got the Taurus
       ·Judge with him that was then later recovered during a search warrant at his
        girlfriend's house, as well as the AK-47, which is-both those firearms are
       counts in this-case.
                He's alleged to be in possession ofthem. He's alleged to be waving
        it around, pointing at them. He's extremely upset because he wasn't
       included in that burglary. At one point the witnesses will testity that he
       heard a car coming, he believed it to be law enforcement so he ran up on a
       hill with the AK-47 and was prepared to open fire on law enforcement.

RP at 130.

       Mr. Nichols's lawyer conceded that to the extent that the State was offering the

testimony of Mr. Booth, Mr. Fellman-Shimmin, and Ms. Pierce that his client had

possessed two stolen firearms that night, "it's kind of difficult to argue that they can't

reference him being in possession of it." RP at 128. But he continued:

       But all this commentary about the-about the Feist murder, and all these
       other things, I don't think are particularly relevant.

Id.

       The court denied the motion, explaining:

               THE COURT: ... [T]hat's how it appears to me, is more of ... a
       res gestae thing. I mean, certainly the defense is able to cross examine each
       of these witnesses about, of course, their alleged involvement, or their bias,
       prejudice, ability to perceive, I mean, the kind of standard impeachment
       issues. And how do we un-ring that bell?
               I don't know that it's possible to preclude the [S]tate from making
       any reference to that contact without-really limiting the [S]tate in
       presenting its case, such as it is.
               So, I don't think I can-I can grant that motion in limine. I will
       listen closely to be sure that it kind of meets with this entire res gestae idea,

                                              11
No. 31037-0-111
State v. Nichols


       but otherwise ... I don't think the [S]tate can be precluded from ...
       testimony that would implicate Mr. Nichols in what they're charging him
       with through these witnesses, who just happen to have been involved in this
       other activity.
              And maybe there's, you know, a limiting instruction of some sort. I
       don't think there is, but I think it has to be something that relies on cross
       examination perhaps to develop, as far as those witnesses and their
       credibility.
              So, I say no, I guess, because I see this as a res gestae issue.

RP at 131-32.

       Mr. Nichols's brief in this court analyzes the trial court's denial of his 14th motion

in limine as if it were a ruling on character evidence governed by ER 404(b). Thus

analyzed, he argues that evidence of the Feist murder was improperly admitted because

(1) it did not fall within the res gestae exception, (2) the trial court failed to conduct the

required analysis on the record, and (3) the court failed to give a limiting instruction to

minimize the damaging effect of such evidence. The State counters that the evidence

about which Mr. Nichols complains on appeal was not character evidence and its

admission was not governed by ER 404(b). We agree with the State.

       Under ER 404(b), evidence of an individual's other crimes, wrongs, or acts is

inadmissible to prove an individual's propensity to act in conformity therewith. Evidence

of other bad acts may nevertheless be admissible for other purposes, such as to prove

"motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident." ER 404(b). Another proper purpose for admitting evidence of an

individual's other crimes, wrongs, or acts, is as res gestae, to complete the story of the

                                               12 

No. 31037-0-111
State v. Nichols


crime on trial by proving its immediate context of happenings near in time and place.

State v. Lane, 125 Wn.2d 825,831,889 P.2d 929 (1995) (quoting State v. Tharp, 27 Wn.

App. 198,204,616 P.2d 693 (1980), ajJ'd, 96 Wn.2d 591, 637 P.2d 961 (1981)).

       In support of treating the trial court as faced with a character evidence issue, Mr.

Nichols points to the fact that his written motion, after itemizing his 14 concerns, stated

that "[a]s to the motions set forth in 8 through 14, said motions are based upon ER 401,

402,403 and 404." CP at 199 (emphasis added). He also relies on the fact that res gestae

was the focus of the trial court's reasoning and is recognized as a proper purpose for

which evidence of a criminal defendant's other crimes, wrongs, or acts can be offered

consistent with ER 404(b). But Mr. Nichols's generalized citation of 4 evidence rules in

support of 6 motions is not particularly enlightening. His trial lawyer never relied on

ER 404(b )-either by name or conceptually-when he orally argued his 14th motion in

limine. And the concept of res gestae has a long history that extends beyond its

application under ER 404(b).

       The principal flaw in Mr. Nichols's ER 404(b)-based argument on appeal,

however, is that the trial evidence about which he is complaining is evidence of crimes,

wrongs, or acts by others, yet his concern is with the conclusion the jurors might have

drawn about him. He argues that admitting evidence of the Feist murder was highly

prejudicial, as he was "essentially convicted of the murder, a crime unrelated to him,

rather than the offenses with which he was charged." Br. of Appellant at 21. By its plain

                                             13 

No. 31 037-0-III
State v. Nichols


terms, ER 404(b) simply does not apply. The trial court was not required to engage in

ER 404(b) analysis. In substance, Mr. Nichols's objection to the evidence is one based

on ER 401,402, and 403: that evidence of the murder was either irrelevant, or, if

relevant, that its probative value was substantially outweighed by the danger of unfair

prejudice.

       A party is entitled to admit relevant evidence except as limited by constitutional

requirements or as otherwise provided by statute or the evidence rules. ER 402. A party

may assign evidentiary error on appeal only on a specific ground made at trial, thereby

having given the trial court the opportunity to prevent or cure any error. State v.

Kirkman, 159 Wn.2d 918,926, 155 P.3d 125 (2007); ER 103(a)(1). The decision to

admit evidence lies within the sound discretion of the trial court and should not be

overturned on appeal absent a manifest abuse of discretion. State v. Crenshaw, 98 Wn.2d

789,806, 659 P.2d 488 (1983).

       At the hearing on Mr. Nichols's motions in limine, the trial court, having Mr.

Nichols's written motion before it, gave his lawyer, Mr. Maxey, an opportunity to clarifY

the concern addressed by his 14th motion:

              [THE COURT:] ... I think that takes us up to number fourteen,
       which-by which the defense asks that the [S]tate make no reference to
       contact allegedly occurring between the defendant and certain of the
       [S]tate's intended witnesses.
              Now, what's your thinking here, Mr. Maxey? 


              ... What is the nature of the contact that is alleged to have occurred? 


                                             14
No. 31037-0-111
State v. Nichols



RP at 127. It was incumbent upon the defense to specify its objection in response to this

request by the trial court. It was in responding to the court that Mr. Nichols's lawyer

made his statement that "all this commentary about the-about the Feist murder, and all

those other things, I don't think are particularly relevant." RP at 128.

       Yet the State had a legitimate need to offer evidence of Mr. Nichols's possession

of two of the stolen firearms on the night of the Feist murder. It had a legitimate interest

in offering evidence of Mr. Nichols's concern over retrieving the stolen Derringer and his

travel to the site of the utility vehicle accident, only to find that the sheriffs department

was already there. The State reasonably anticipated that Mr. Nichols's lawyer would

cross-examine Mr. Booth, Mr. Fellman-Shimmin, and Ms. Pierce about the plea deals

under which they were testifying and it reasonably raised their murder convictions

preemptively, in its direct examination of each of the three witnesses. Mr. Booth's

identification and arrest for the murder of Mr. Feist is the most logical and natural way to

explain the Stevens County sheriff department's discovery of evidence that Mr. Nichols

participated in the Hannigan burglary. It would be impossible for the State to

demonstrate to the jury that the presence of the Derringer at the utility vehicle accident

site corroborated Mr. Booth's testimony against Mr. Nichols without presenting evidence

that Mr. Booth was involved in the accident and lost the gun at that location.




                                              15 

No. 31037-0-III
State v. Nichols


       The trial court reasonably concluded that excluding evidence of the murder would

"really limit[] the [S]tate in presenting its case." RP at 131. The testimony of Mr. Booth,

Mr. Fellman-Shimmin, and Ms. Pierce was not admitted for propensity reasons-Mr.

Nichols can point to no evidence or argument from which a confused jury might have

believed that he participated in the botched burglary and subsequent murder of Mr. Feist.

Instead, the testimony of Mr. Booth, Mr. Fellman-Shimmin, and Ms. Pierce linked Mr.

Nichols to the theft and possession of the firearms stolen from Mr. Hannigan and served

to complete a coherent story. Mr. Nichols has failed to demonstrate that the trial court

abused its discretion in denying the motion in limine.

       Finally, and fastening on the trial court's comment that it might give a limiting

instruction, Mr. Nichols argues that the trial court erred in failing to give one. He again

assumes that ER 404(b) applies and relies on case law holding that when a trial court

admits evidence under ER 404(b), a defendant is entitled to have a limiting instruction to

minimize the prejudicial effect of such evidence. State v. Foxhoven, 161 Wn.2d 168,

175, 163 P.3d 786 (2007). However, even where ER 404(b) applies-and here, it does

not-"[t]he failure ofa court to give a cautionary instruction is not error ifno instruction

was requested." State v. Myers, 133 Wn.2d 26,36,941 P.2d 1102 (1997). Mr. Nichols

never requested a limiting instruction.




                                             16 

No. 31037-0-II1
State v. Nichols


                   II. Failure to consider an exceptional downward sentence

       Mr. Nichols's remaining assignment of error is that the trial court failed to

consider his request for an exceptional downward sentence. He points to seemingly

inconsistent statements made by the court during the sentencing hearing as to whether it

enjoyed sentencing discretion.

       A defendant generally cannot appeal a standard range sentence such as the

sentence imposed on Mr. Nichols. RCW 9.94A.585(1); State v. Williams, 149 Wn.2d

143, 146,65 P.3d 1214 (2003). He can appeal a failure by the sentencing court "to

comply with procedural requirements of the [Sentencing Reform Act of 1981, chapter

9.94A RCW,] or constitutional requirements." State v. Osman, 157 Wn.2d 474,481-82,

139 P.3d 334 (2006); RCW 9.94A.585(2). Where a defendant appeals a sentencing

court's denial of his request for an exceptional sentence below the standard range,

"review is limited to circumstances where the court has refused to exercise discretion at

all or has relied on an impermissible basis for refusing to impose an exceptional sentence

below the standard range." State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d

1104 (1997). "A court refuses to exercise its discretion if it refuses categorically to

impose an exceptional sentence below the standard range under any circumstances; i.e., it

takes the position that it will never impose a sentence below the standard range." Id.

"The failure to consider an exceptional sentence is reversible error." State v. Grayson,

154 Wn.2d 333, 342, 111 P.3d 1183 (2005).

                                             17
No. 31037-0-111
State v. Nichols


       RCW 9 .94A.589( 1)(c) provides that where "an offender is convicted under RCW

9.41.040 for unlawful possession of a firearm ... and for the felony crimes of theft of a

firearm[,] ...[t]he offender shall serve consecutive sentences/or each conviction . .. ,

and for each firearm unlawfully possessed." (Emphasis added.) RCW 9.41.040(6)

similarly provides:

       Notwithstanding any other law, if the offender is convicted under this
       section for unlawful possession of a firearm ... and for the felony crimes of
       theft of a firearm ... then the offender shall serve consecutive sentences for
       each of the felony crimes of conviction listed in this subsection.

(Emphasis added.) These provisions reflect the policy of the HTACA, which was

intended to "provide greatly increased penalties for gun predators and for those offenders

committing crimes to acquire firearms." LAWS OF 1995, ch. 129, § 1(2)(c).

       In State v. Murphy, 98 Wn. App. 42, 48-49, 988 P.2d 1018 (1999), the court held

that ''under the plain language of the HTACA, the trial court should have run each of [the

defendant's multiple] firearm theft and unlawful possession convictions consecutively to

one another." See also State v. McReynolds, 117 Wn. App. 309, 343, 71 P.3d 663 (2003)

(holding that RCW 9.41.040(6) "clearly and unambiguously prohibits concurrent

sentences for the listed firearms crimes").

       In In re Personal Restraint 0/Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007),

however, the Washington Supreme Court held that the same sentences that are mandated

to run consecutively under subsection (1)(b) ofRCW 9.94A.589 (serious violent offenses


                                              18 

No. 31037-0-111
State v. Nichols


that are not the same criminal conduct) may be ordered to run concurrently as an

exceptional sentence "if [the sentencing court] finds there are mitigating factors justifYing

such a sentence." Id.   a~   327-28. RCW 9.94A.535, the exceptional sentence statute,

provides that "[a] departure from the standards in RCW 9.94A.589 (1) and (2) governing

whether sentences are to be served consecutively or concurrently is an exceptional

sentence subject to the limitations in this section, and may be appealed by the offender or

the state as set forth in RCW 9.94A.585 (2) through (6)."

       The State in Mulholland argued that the exceptional sentence statute does not

apply when the sentencing is under RCW 9.94A.589(l)(b), which requires that sentences

for separate serious violent offenses to be served consecutively, but the Supreme Court

disagreed. Because the statute "does not differentiate between subsections (l)(a) and

(l)(b)," it ruled that the plain language ofRCW 9.94A.535 "leads inescapably to a

conclusion that exceptional sentences may be imposed under either subsection ofRCW

9.94A.589(J)." 161 Wn.2d at 329-30 (emphasis added). It pointed to the fact that an

exceptional sentence may be appealed by either the offender "or the State" under RCW

9.94A.535 as further support for its construction, since the State will be the aggrieved

party when an exceptional sentence is imposed under RCW 9.94A.589(l) only when

"concurrent sentences are imposed where consecutive sentences are presumptively called

for." Id. at 330. For these reasons, it held that the sentencing court erred in sentencing




                                               19 

No.31037-0-III
State v. Nichols


Mr. Mulholland under the "mistaken belief that it did not have the discretion to impose a

mitigated exceptional sentence for which he may have been eligible." Id. at 333.

       In this case, consecutive sentencing was required under subsection (l)(c) ofRCW

9.94A.589, dealing with firearm offenses, rather than under subsection (l)(b), which was

at issue in Mulholland. But the language ofRCW 9.94A.535 that "[a] departure from the

standards in RCW 9.94A.589(1) ... governing whether sentences are to be served

consecutively or concurrently is an exceptional sentence subject to the limitations in this

section" has equal application to sentences required by RCW 9.94A.589(1) to run

consecutively, whether they are serious violent offenses or firearm offenses. The State

does not argue otherwise on appeal. Its response to this assignment of error is not that the

trial court could not run Mr. Nichols's sentences for firearm offenses concurrently as an

exceptional sentence. Its response is that the trial court knew that it could, considered

Mr. Nichols's request, and ultimately rejected it.

       We tum, then, to the court's explanation of its sentencing decision but first

provide the context in which it was delivered. Mr. Nichols filed a sentencing

memorandum in which he pointed out that the court must first determine the standard

sentencing range for his offenses, but "[b]ecause the standard sentencing range for Mr.

Nichols' firearms convictions is clearly excessive in light of the purposes of the

Sentencing Reform Act, Mr. Nichols[] is entitled to an exceptional sentence downward,"

citing RCW 9.94A.535(1)(g). CP at 313. Mr. Nichols devoted a section of his

                                             20
No.31037-0-Ill
State v. Nichols


memorandum to "Factors Justifying an Exceptional Sentence Downward," in which he

pointed out that when imposing an exceptional sentence, "the Court has discretion to

shorten sentences or impose concurrent sentences or a combination of both." CP at 314.

Mr. Nichols's sentencing memorandum was filed several days before the July 31, 2012

sentencing hearing and it is clear from the court's comments during the sentencing

hearing that it had read it.

       At the sentencing hearing, the State presented its recommendation first. At the

outset of addressing consecutive versus concurrent sentences for the firearm offenses, the

State made it clear that it did not want the court to jump immediately to its discretion to

impose an exceptional sentence. It wanted the court to first consider the presumptive

sentences for the crimes and seriously consider the legislative intent. The following

exchange occurred:

               [PROSECUTOR RADZIMSKI:] ... [A]fter we get done talking about
       the offender score, which is nine-plus in this situation, we're left to--the big
       dispute that we have is what to do with the firearms charges.
               And going a little bit out of order, Mr. Maxey has two suggestions: One
       that the court can run the sentences concurrently with one another, that you can
       take 1 through 9 and 13 through 21, and disregard the RCWs, the two RCWs that
       state the court shall run these sentences consecutively. I don't know how we
       quite get there, but Mr. Maxey seems to think that the court has discretion. That
       simply does not fit with the statutes, nor does it fit with-
               THE COURT: Does the court have authority pursuant to an exceptional
       sentence to run concurrent? I think that's probably what he was getting at.
               MR. RADZIMSKI: I think-We can't-If the court phrases this as
       concurrent sentences for those offenses I think that's reversible error. The only
       way that the court can get away with some kind oflesser sentence would be to
       impose an exceptional downward on those 18 offenses.



                                              21
No.3l037-0-II1
State v. Nichols


                I think other than that the court is obligated, given the holdings in Murphy
       and McReynolds-In Murphy what the court tried to do is they tried to run
       multiple gun charges, the unlawful possessions together then the theft of a firearm
       together and stack those. The Court of Appeals says you can't do that, the statute
       is clear, it's unequivocal, you have to run each one of these offenses consecutive
       to one another.

RP at 891-92 (emphasis added). The prosecutor returned later to why the court should

give great weight to the legislative purpose behind the presumptively consecutive

sentences before moving on to consider exceptional sentencing:

                [MR. RADZIMSKI:] Judge, the biggest hurdle that I don't think the
       defense can overcome is the legislative purpose behind the statute. And it's not
       the Sentencing Reform Act that we're talking about; it's the Hard Time for
       Armed Criminals Act. And that statute has one purpose: to give out lengthy
       sentences for armed career criminals.
                Look at Mr. Nichols' criminal history. That's what he is, Judge. He's got
       an extensive criminal history. He steals guns. Facts like these are why that law is
       on the books.
                Now, the Hard Time for Armed Crime came into effect in 1995. That law,
       the Sentencing Reform Act, had been on the books since '84. So the legislature
       knew very well the types of sentences that could be passed and handed out by
       courts when they passed this law. And Judge, that-that law has been on the
       books since 1995 without any change. The legislature knows full well the types
       of sentences that this-this statute can---can dole out.
                Now, your Honor, Mr. Maxey brings up that had this offense been
       committed in Idaho that Mr. Nichols would only be facing five or ten years.
       Well, Judge, Mr. Maxey also neglected to talk about Idaho's persistent violator
       statute, that says if you have three or more felony convictions your sentence range
       is five years to life imprisonment. So had this offense in fact been committed in
       Idaho Mr. Nichols would be looking at a life sentence, much like the one we're
       asking the court to impose.
                Judge, even in Washington sentences like this are not uncommon. I
       recently got some feedback from prosecutor's [sic] across the state. Kittitas
       County gave out a 500-month sentence for this type of offense. Thurston County
       gave an individual 90 years for-weapons offenses, Judge. These are not unusual
       sentences.




                                                22
No.31037-0-II1
State v. Nichols


RP at 896-97. The prosecutor told the court that he was not going to make a specific

sentencing recommendation, because there was not much difference between the low end

or top end standard range sentence. He concluded, "But I think a standard range sentence

is appropriate. And I would ask that the court sentence Mr. Nichols somewhere within

the standard range." RP at 898.

       When it was Mr.   Nichols~s   tum to respond, his lawyer stated~ "We have suggested

to the court to consider an exceptional sentence in this case for a number of reasons." RP

at 900. He went on to talk about challenges in Mr. Nichols's background, the fact that

Mr. Nichols~s criminal history was entirely nonviolent crimes, and the lack of

proportionality in imposing a life sentence on Mr. Nichols when Mr. Booth, Mr. Fellman-

Shimmin, and Ms. Pierce were all serving less-than-27-year sentences. He argued

       there are a number of alternatives. We've asked that the court consider as
       an exceptional sentence running them concurrently. Or the court could give
       an exceptional sentence, depending on however the court fashioned to deem
       it~ you know, giving a year on each offense, giving more on one, less on
       another; it's within the discretion of the court to give a sentence that we feel
       would be appropriate under the circumstances.

RP at 905.

       Having reviewed the parties' briefing, heard their argument, and heard from the

defendant, the court announced Mr. Nichols's sentence, explaining it at some length. We

reproduce the portion of the court's explanation that Mr. Nichols relies upon in asserting

error on appeal:


                                             23
No. 31037-0-111
State v. Nichols


               1 am painfully aware that you are a human being and that you don't
      have a history of violence. And 1 can tell you that 1 had no idea at [the]
      time of trial that the-the ultimate sentencing range was anywhere near
      this. And like your attorney, 1 guess, 1 had that initial look and said, "This
      just can't be," that folks who are charged with and ultimately plead guilty
      to murder would end up with the sentences they did compared to the range
      that we look at here.
               And your attorney reminds me of that, and he asks me to look at the
      purpose of the Sentencing Reform Act to determine whether the range here
      is clearly excessive. And there's a nonexclusive list of policy goals. He
      first talks about proportionality, seriousness of offense, and your-and your
      history.
               And he mentions in his briefing, that "Well, there might not have
      been guns in this safe and had there not been guns it would have been a
      different story." And to that extent it's true. But as 1 think about that,
      you've been in prison, you have this criminal history. You are very well
      aware that anything having to do with guns is kryptonite; 1 mean, you're to
      keep away. And yet the safe was clearly a target. There was also jewelry
      and other items, and had it been just jewelry and other items we wouldn't
      be having this discussion today. But you targeted a safe with a pretty good
      idea, 1 think, that it might have weapons in it, weapons that could be
      fenced, sold, to generate money for other purposes.
               And 1 thought about that. And that seemed to me to be precisely the
      reason why the legislature would pass 9.41.040(6), the-hard time for
      armed crime statute. But it's just that. It's the risk of firearms finding their
      way into a criminal population, into the hands of people [who] have
      demonstrated that they can't own or possess weapons responsibly.
               So while we talk about seriousness of offense and criminal history,
      felons who are stealing and possessing guns, by legislative fiat, present an
      unacceptable risk of safety-risk to the public and public safety.

               [Defense counseJ] then says, "Well, you know, what is essentially a
       life sentence or the possibility of life sentence doesn't provide respect for
      the law by providing a just punishment." Yet in State v. Murphy, a case
      cited by the [S]tate, there's a quote: "It's the province ofthe legislature ifit
      chooses, not the appellate court or a superior court, to ameliorate any
       undue harshness arisingfrom "-from consecutive sentences for mUltiple
      firearm counts. "


                                            24
No. 31037-0-III
State v. Nichols


              The idea there is that it's-the way that the court promotes respect
      for the law is to abide by the law, and to enforce the law, not to make the
      law. And here, to a large degree, your attorney-who is ever-ever
      representing you zealously-suggests that I overlook the very clear
      language oftwo statutes in particular, 9. 94A. 589 and 9.41.040, which both
      make it mandatory that there be consecutive sentences. And I think Mr.
      Radzimski's right: were the court to impose anything other than
      consecutive sentences that it would be reversible error .

              . . . And as someone who knows you can't be around weapons, you
      know, you opened the safe, you distributed the weapons, and ultimately one
      of the weapons that was involved in this-in this burglary, whether or not it
      was in the safe or not, resulted-or was used to commit a murder.
              There has to be just punishment recognizing that's what happened,
      but I-I again look-look past that, I don't make too much of that, and
      rather just look at the offense here, where it's very clear that Mr. Booth
      didn't have the ability to plan or execute an offense like this, that you had
      spent, you know, nearly the last decade injail or prison, you knew that you
      weren't supposed to have weapons, you targeted a gun safe. It's had [sic]
      to say that that-that didn't put you on notice that you knew there were
      going to be guns involved, and you knew that there were significant
      punishments for guns involved but you made that choice.

             And it does seem harsh. I am the first to admit that.

              And therefore, as we look to the-the counts, on Counts 1 through 9
      of unlawful possession of a firearm in the first degree, with a standard
      range of 86 to 116 months, with nine counts, I'll sentence you to 90 months
      on each count, to run consecutive. That's 810 months.
              On Counts 13 through 21 the standard range is 77 to 102 months.
      Nine counts, I'll sentence you to 80 months on each count to run
      consecutive. And that creates 1,530 months, 125 years or so.
              And I recognize it's a life sentence. I-I have been painfully aware
      of that and thinking about it since I understood that this is what the range
      looked at-or, was-was calculated at.
              And again, I don 'tfeel I have a choice. And I think it's, in this case,
      also appropriate.




                                            25
No. 31037-0-III
State v. Nichols


               With regard to the residential burglary, with your history of burglary
       I think it's appropriate to impose a sentence of 84 months to run
       concurrently with each of the other two sentence [sic].
               For theft of a motor vehicle, a mid-range sentence of 50 months,
       again to run concurrent with the other sentences.
               For trafficking in stolen property a sentence of 80 months, towards
       the top of the range, also to run concurrent. And that's based on this
       history of theft.
               Again, I'm aware that there's no violent offenses in your history.
       And I 'm aware that those who were convicted ofthe worst violent offense
       are looking at significantly less time than you. And I-I've thought about
       it. I don't like it.
               Nevertheless, this is my duty. It's my duty to uphold the law. And
       the legislature has determined that this is the appropriate-appropriate
       type ofsentencing in cases like this, and it is therefore my-my obligation
       to follow the law as the legislature directs it.
               So that will be the sentence of the court.

RP at 909-15 (emphasis added).

       Viewed in isolation, the highlighted language might be viewed as suggesting that

the trial court was mistaken about its discretion to impose concurrent sentencing through

an exceptional downward sentence. But when the entire record is reviewed, it is clear

that the option of an exceptional sentence had been briefed to the court, conceded by the

State, and advocated for by Mr. Nichols. It is clear that it was understood and considered

by the court.

       Before imposing a sentence outside the standard range, the trial court must find

"substantial and compelling reasons" justifying an exceptional sentence and that

mitigating circumstances are established by a preponderance of the evidence. RCW

9.94A.535. When the court's statements are viewed in the context of the parties' briefing

                                             26 

No. 31037-0-III
State v. Nichols


and argument, it is clear that the trial court did not find mitigating circumstances or

substantial and compelling reasons for an exceptional downward sentence as required by

the statute. It accepted the State's analysis that however much it might dislike the

sentence required by the presumptive sentencing statutes, if it could not find a basis for

imposing an exceptional sentence, it was bound by the presumptive sentence established

by the legislature. Thus understood, there was no error. A trial court has exercised its

discretion if it "has considered the facts and has concluded that there is no basis for an

exceptional sentence." Garcia-Martinez, 88 Wn. App. at 330.

                        STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Nichols states several. We

address them in turn.

       Procedural Deficiencies. Mr. Nichols makes two complaints about his

opportunity to file the SAG. First, he claims that he had not received a transcript of the

parties' opening statements at the time he completed his statement. Where provided at

public expense, however, a verbatim report of proceedings will not include opening

statements unless ordered by the trial court. RAP 9.2(b); RAP 9.2(e)(2)(D).

       Second, Mr. Nichols asserts that he did not have priority access or adequate legal

access for the first 10 days after receiving the notice of appeal. This issue involves

factual allegations outside the record of this appeal. His remedy is to seek relief by a




                                             27 

No.31037-0-III
State v. Nichols


personal restrain petition. State v. Norman, 61 Wn. App. 16,27-28,808 P.2d 1159

(1991); State v. Alvarado, 164 Wn.2d 556,569, 192 P.3d 345 (2008).

       Prosecutorial Misconduct. Mr. Nichols argues that the State committed

prosecutorial misconduct by failing to proactively correct witness Crystal Fellman-

Shimmin, Mr. Fellman-Shimmin's sister, when she falsely denied having been offered

lenient treatment by the State in exchange for her testimony. Defense counsel had been

notified by the prosecutor that Ms. Fellman-Shimmin had, in fact, reached an agreement

with the State.

       After the defense pointed out Ms. Fellman-Shimmin's perjurious denial to the

court, the parties agreed to a procedure for correcting the record: the State would inform

Detective Gilmore of the agreement reached with Ms. Fellman-Shimmin and to allow

him to be questioned about it. The detective testified as follows:

       Q      And are you aware, now, that there were negotiations between Ms.
              Crystal Fellman-Shimmin, her attorney and the prosecuting
              attorney's office resulting in an offer to her?
       A      I'm aware of that now.

       Q      And as part of this arrangement with Crystal Fellman-Shimmin, isn't
              it true that in return for her agreement to testifY in this case, that she'
              would, once the case was done-that being this case-then she
              would go plea to tampering with physical evidence?
       A      Yes, that's what the email says.
       Q      Okay. And if you know, tampering with physical evidence is a gross
              misdemeanor?
       A      Yeah.
       Q      Okay. Is possession of stolen firearms a felony?
       A      Correct.

                                              28
No. 31037-0-II1
State v. Nichols



RP at 743-44. Detective Gilmore's testimony was a solution agreed to by Mr. Nichols

through his lawyer and was sufficient to inform the jury of Ms. Fellman-Shimmin's plea

deal.

        Insufficient Evidence. Mr. Nichols argues that the evidence was insufficient to

support the jury's findings of guilt because Mr. Booth was asked twice to identify him in

the courtroom and was unable to do so either time. "A defendant's challenge to the

sufficiency of the evidence requires the reviewing court to view the evidence in the light

most favorable to the State and determine whether any rational trier of fact could have

found the elements ofthe charged crime beyond a reasonable doubt." State v. Brown,

162 Wn.2d 422, 428, 173 P.3d 245 (2007). Mr. Booth identified Mr. Nichols by name

and other witnesses identified him in the courtroom. The identification was sufficient.

        Confrontation. Mr. Nichols argues that his right to confrontation was violated

when Detective Gilmore testified that a rail mounting piece for an assault rifle found

during execution of the search warrant at Mr. Nichols's girl friend's residence was

believed by the detective to have been stolen from Mr. Hannigan.

        The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused

shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST.

amend. VI. The primary right protected by the confrontation clause is the right to

effective cross-examination of the adverse witness. The standard of review on a


                                            29 

No. 31037-0-III
State v. Nichols


confrontation clause challenge is de novo. State v. Mason, 160 Wn.2d 910, 922, 162 P.3d

396 (2007).

       When the subject of the rail mounting piece was first raised during the detective's

direct examination, he began to volunteer hearsay from Mr. Hannigan but was met with a

prompt objection by defense counsel, which was sustained. In response to a reframed

question, the detective testified only that he believed the rail mount was stolen from Mr.

Hannigan, without offering hearsay or any other explanation. No objection was raised.

Mr. Nichols fails to explain how the detective's testimony raises a Sixth Amendment

Issue. We will not consider the argument further. See RAP 10.10(c).

       Recorded Conversation. Mr. Nichols claims that because the State did not

establish that he and his girl friend were on notice that his phone calls from jail were

being recorded, the introduction of the recording of their jailhouse call violated his right

to due process and Washington State statute.

       In laying a foundation for the recording, the State's witness, the chief corrections

deputy for the Stevens County sheriffs office, testified that inmates are made aware that

their calls will be recorded by signs posted throughout the facility. He testified that an

automated recording at the outset of a call that the phone call is being recorded also puts

both the inmate and the recipient of the call on notice that the call is being recorded. He

admitted that once a recipient becomes aware of how the jail's call system works, he or

she can press a button to "accept" a call immediately and thereby skip the notice that the

                                             30 

No. 31037-0-III
State v. Nichols


call is being recorded. RP at 709. The recording offered at trial did not include the

automated notice of recording. It was the State's position that Mr. Nichols's girl friend

accepted the call before the notice could be played.

       Mr. Nichols's lawyer was allowed to voir dire the corrections deputy and, after

doing so, objected there was insufficient evidence of notice required under a Washington

statute (evidently referring to RCW 9.73.030 and .050) "that does not allow you to record

people without their consent. And it says that if you do so it's not admissible for any

purpose." RP at 715. The trial court overruled the objection.

       Preliminary questions concerning the admissibility of evidence are determined by

the court. ER 104(a). A court's rulings on the admission of evidence are reviewed for an

abuse of discretion. Washburn v. Beatt EqUip. Co., 120 Wn.2d 246,264,840 P.2d 860

(1992). Mr. Nichols fails to show an abuse of discretion in light of the testimony of the

chief corrections deputy that procedures were in place to give both callers and recipients

notice of the jail's practice of recording calls.

       Were that not the case, we would find the admission of the recording harmless.

The improper admission of evidence constitutes harmless error if the evidence is of minor

significance in reference to the overall, overwhelming evidence as a whole and did not

affect the outcome of the trial. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120

(1997). In assessing whether an error was harmless, we must measure the admissible




                                               31 

No. 31037-0-II1
State v. Nichols


evidence of a defendant's guilt against the prejudice, if any, caused by the inadmissible

testimony.

      Here, the admissible evidence against Mr. Nichols included the testimony of the

only witness to the burglary, Mr. Booth; his testimony and that of Mr. Fellman-Shimmin

to the prying open of the safe; the testimony of those two and Ms. Pierce to Mr. Nichols's

possession of the stolen guns; the evidence from Pawn 1 and Pacific Steel that Mr.

Nichols had pawned or sold property stolen from the Hannigans; and evidence that stolen

property bearing his fingerprint was found at his girl friend's home. The recording, by

contrast, contained only statements from which inculpatory inferences might be drawn-

evidence of minor significance that could not have affected the outcome of trial.

      Affirmed.

       A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



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                                            32 

