                                                                                                           Fi .:" D
                                                                                                   CURT OF APPEALS
                                                                                                         DIVISION ii

                                                                                            2010 JUL 28 AM 8. 23
                                                                                             S iA•t• •      1'         TON
                                                                                             E'.
                                                                                                                 Y




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II


In the Matter of the Personal                                                  No. 40553 -9 -II
Restraint Petition of



ROBIN TAYLOR SCHREIBER,


                                                                       PART PUBLISHED OPINION


                           Petitioner.


       WORSWICK, P. J. —       After a jury trial, Robin Schreiber was convicted of second degree

murder with a firearm sentencing enhancement. He received an exceptional sentence because his

victim was a law enforcement officer. Schreiber argues, among other things, that the trial court

violated his right to a public trial. In the published portion of this opinion, we hold that

Schreiber fails to establish actual and substantial prejudice resulting from any courtroom closure.

In the unpublished portion of this opinion, we hold that Schreiber fails to establish any other

claim of unlawful restraint. Accordingly, we deny his personal restraint petition.

                                                      FACTS

        Robin Schreiber was convicted of second degree murder in the 2004 death of Clark

County Sheriff' s Sergeant Brad Crawford. Some aspects of his trial were shielded from the
public view.   First,   during jury   selection,   the trial   court gave prospective   jurors   a confidential
No. 40553 -9 -II



questionnaire. We assume arguendo that these jury questionnaires were filed under seal.'

Second, in response to a report that two prospective jurors saw Schreiber in handcuffs in the


hallway, the trial court and counsel for both parties privately questioned the prospective jurors in

chambers, after Schreiber' s counsel waived Schreiber' s right to be present. Third, according to

Schreiber, spectators were excluded from the courtroom during voir dire due to a lack of space.

And fourth, according to Schreiber, the trial court directed the bailiff to speak privately with an

empaneled juror.


        A jury ultimately found Schreiber guilty     of   intentional   second   degree   murder.   Schreiber


appealed, and we affirmed in an unpublished decision. This personal restraint petition followed.

                                              ANALYSIS


                               PERSONAL RESTRAINT PETITION PRINCIPLES


        When considering constitutional arguments raised in a personal restraint petition, we

determine whether the petitioner can show that a constitutional error caused actual and


substantial prejudice. In re Pers. Restraint of Coggin, 182 Wn.2d 115, 119, 340 P. 3d 810 ( 2014)

 plurality   opinion).   A stricter standard governs our consideration of nonconstitutional arguments


raised in a personal restraint petition. When considering nonconstitutional arguments, we

determine whether the petitioner has established that the claimed error is " a fundamental defect

resulting in   a complete miscarriage of justice."   In re Pers. Restraint of Yates, 177 Wn.2d 1, 18,

296 P. 3d 872 ( 2013).




  Schreiber avers that the completed questionnaires were filed under seal. But the trial judge
 declared that although the questionnaires purported to be confidential, they were never ordered
 sealed.Response



                                                     2
                                                                    11




No. 40553 -9 -II



         A personal restraint petition must state with particularity the factual allegations

underlying the petitioner' s claim of unlawful restraint. In re Pers. Restraint ofRice, 118 Wn.2d

876, 885- 86, 828 P. 2d 1086 ( 1992).          Bald assertions and conclusory allegations are not

sufficient. Rice, 1*18 Wn.2d at 886.


         Petitioner' s allegations must also have evidentiary support. Rice, 118 Wn.2d at 886. If

the trial court record does not support the factual allegations, then the petitioner must show

through affidavits or other forms of corroboration that competent and admissible evidence will


establish the factual allegations. Rice, 118 Wn.2d at 886. The petitioner may not rely on mere

speculation, conjecture, or        inadmissible    hearsay.       Rice, 118 Wn.2d   at   886. A personal restraint


petition cannot renew an issue that was raised and rejected on direct appeal, unless the interests

ofjustice require the issue' s relitigation. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 671,

101 P. 3d 1 ( 2004).


         If the petitioner fails to make a prima facie showing of either actual and substantial

prejudice or a      fundamental defect,      we   deny the   personal restraint petition.     Yates, 177 Wn,2d at


17- 18. If the petitioner makes such a showing, but the record is not sufficient to determine the

merits, we remand        for   a reference   hearing.   Yates, 177 Wn.2d     at   17- 18. If, however, we are


convinced the petitioner has proven actual and substantial prejudice or a fundamental defect, we

grant the petition. Yates, 177 Wn.2d at 17- 18.

                                              RIGHT TO A PUBLIC TRIAL


             Schreiber argues that he is entitled to relief from restraint because the trial court violated

his right to a public trial by closing the proceedings without conducting the analysis required by.

State   v.   Bone -Club, 128 Wn.2d 254, 258- 59, 906 P. 2d 325 ( 1995).              We disagree, holding that



                                                              3
No. 40553 -9 -II



Schreiber fails to make out a prima facie showing of actual and substantial prejudice caused by

any closure.

          The Washington Constitution protects a criminal defendant' s right to a public trial.

WASH. CONST.        art.   I, § 22.    A trial court may close a courtroom only if closure is warranted

under   the   five- part test    set   forth in Bone -Club, 128 Wn.2d        at   258- 59.   Closing a courtroom

without first conducting the required Bone -Club analysis is a structural error. State v. Paumier,

176 Wn.2d 29, 35, 288 P. 3d 1126 ( 2012)..

A.        Actual and Substantial Prejudice Standard


          On direct review, a public trial violation requires reversal regardless of whether the

defendant has shown prejudice. Paumier, 176 Wn.2d at 37. But in a personal restraint petition,

the petitioner bears the burden of demonstrating that a constitutional violation caused actual and

substantial prejudice. Coggin, 182 Wn.2d at 119 ( plurality opinion).

          In Coggin and Speight, our Supreme Court recently held that a petitioner must show

actual and substantial prejudice to prevail on collateral review of an alleged public trial violation.

Coggin, 182 Wn.2d           at   120- 22 ( plurality   opinion);   In re Pers. Restraint ofSpeight, 182 Wn.2d

 103, 107, 340 P. 3d 207 ( 2014) ( plurality           opinion).    In both Coggin and Speight, Chief Justice


Madsen filed concurring opinions agreeing with the decision to deny the petitions, but on the

ground that the petitioners invited the closure. Coggin, 182 Wn.2d at 123 ( Madsen, C. J.,

concurring); Speight, 182 Wn. 2d              at   108 ( Madsen, C. J., concurring). Chief Justice Madsen made


 clear, however, that she agreed with the plurality that a petitioner must show actual and

 substantial prejudice to prevail on a public trial claim on collateral review. Coggin, 182 Wn.2d

 at   123 ( Madsen, C. J., concurring); Speight, 182 Wn.2d              at   108 ( Madsen, C. J., concurring). Thus,
No. 40553 -9 -II



Coggin and Speight require a petitioner to make a showing of actual and substantial prejudice

resulting from a public trial violation to prevail on collateral review.

B.       Schreiber Fails To Show Actual and Substantial Prejudice

         Schreiber claims that the trial court violated his right to a public trial four times, by

failing to conduct Bone -Club hearings before ( 1) giving prospective jurors confidential

questionnaires     that    were   later filed   under seal, (     2) excluding spectators from voir dire due to a

lack   of space   in the   courtroom, (   3) questioning two prospective jurors in chambers, and ( 4)

directing the bailiff to speak privately with a juror during the trial.. It is undisputed that the trial
court conducted no Bone -Club hearings.


         But even assuming closures occurred, Schreiber neither argues nor demonstrates that any

of these closures caused him actual and substantial prejudice. Schreiber argues only that these

closures were structural errors requiring reversal. Because Schreiber is required to demonstrate

actual and substantial prejudice,          his   public   trial   arguments   fail.'   Coggin, 182 Wn.2d at 122.


         For these reasons and those stated in the unpublished portion of this opinion, we deny

Schreiber' s petition.


          A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2. 06. 040, it is so ordered.




   Schreiber argues for the first time in a supplemental brief that regardless of the actual and
 substantial prejudice standard in Washington, his,claim warrants automatic reversal under the
 federal constitution. We decline to address this argument. Cowiche Canyon Conservancy v.
 Bosley,   118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).
No. 40553 -9 -II



                                               ADDITIONAL ARGUMENTS


          Schreiber also argues that we should grant his personal restraint petition because ( 1) the

trial   court violated   his   right   to be   present; (   2) his appellate counsel was ineffective for failing to

argue that a forensic expert' s testimony violated Schreiber' s right to confront the witnesses

against    him; ( 3)   newly discovered evidence of the forensic expert' s misfeasance and malfeasance

warrants vacation of       his   conviction; (     4) the trial judge and presiding juror slept during his trial;

 5) the trial court violated Schreiber' s right to confront the witnesses against him by limiting

cross- examination of an eyewitness and refusing to allow discovery of the eyewitness' s

psychological records; (         6) the evidence was insufficient to support the jury' s special verdict on

the firearm enhancement, and the trial court erred by instructing the jury on the firearm

enhancement; and ( 7) the law enforcement aggravating factor did not exist at the time of

Schreiber' s offense, so the trial court applied an ex post facto law that codified the aggravating

factor. We disagree, holding that Schreiber fails to establish any prima facie claim of actual and

substantial prejudice or fundamental defect resulting in a complete miscarriage of justice. See

Yates, 177 Wn.2d at 17.

                                                   ADDITIONAL FACTS


           Sergeant Crawford, the police officer whom Schreiber killed, was among the officers

who responded to a 911 call reporting that Schreiber was extremely upset, armed with a rifle, and

alone in his house. A standoff at Schreiber' s house ensued.

           Inside his house, Schreiber drank beer, pointed his rifle at patrol cars and officers, and

 called his ex-wife to say that she would not have to worry about him anymore. Eventually,

 Schreiber crawled from his house to his truck, carrying the rifle with him. While he crawled,



                                                                  0
No. 40553 -9 -II



Schreiber periodically put the rifle to his shoulder and pointed it in the direction of a patrol car

and police officers. When Schreiber reached his truck, he again lifted the rifle to his shoulder

and pointed it toward the patrol car and police officers.


         Schreiber drove his truck across a field, through a barbed wire fence, and onto his

neighbor' s driveway before reaching a street. While he drove, Schreiber raised a metal object in

the direction of a police officer. Then, with four officers in pursuit, Schreiber turned a corner

and struck Sergeant Crawford' s patrol car, which was parked off the roadway. Sergeant

Crawford died from injuries sustained in the collision. Schreiber' s rifle was found inside his

truck.


         The State charged Schreiber with premeditated first degree murder or, in the alternative,

second   degree   murder under          both   an   intentional   murder   theory   and a   felony   murder   theory. See

RCW 9A.32. 030( 1)(       a)-(   b), . 050( 1)( b).


         At trial, the State elicited testimony from Corporal Duane Boynton, a Vancouver Police

officer and trained negotiator who was an eyewitness to the standoff and the fatal collision.

Before trial, Schreiber had requested discovery of a psychologist' s records made when treating

Corporal Boynton for trauma resulting from the incident. The trial court refused. Schreiber' s

request and further limited cross- examination by prohibiting questions about Corporal Boynton' s

diagnosis or the identity of his treating psychologist.

         In his defense, Schreiber argued that the fatal collision occurred because he was

 extremely intoxicated, not because he acted with premeditation or intent to harm Sergeant
 Crawford. To counter this argument, the State elicited expert forensic testimony from Ann

 Marie Gordon      of   the   state   toxicology lab. Gordon testified to results of her own testing of




                                                                  7
No. 40553 -9 -II



Schreiber' s blood- alcohol sample as well as to the results of testing conducted by another

forensic technician; both found that Schreiber' s blood tested above the legal alcohol limit for

driving. About one year after Schreiber' s trial, Gordon resigned from the lab because it became

known that she routinely certified breath testing machine quality -assurance samples without

personally testing them and that her laboratory colleagues covered up her misconduct.

       As mentioned above, the jury found Schreiber guilty of intentional second degree murder.

In special verdicts, the jury found facts establishing a firearm sentencing enhancement and the

aggravating sentencing factor that Sergeant Crawford was a law enforcement officer performing

his official duties. The trial court imposed an exceptional sentence of 347 months.

                                   ADDITIONAL ANALYSIS


                                     I. RIGHT To BE PRESENT


        Schreiber argues that the trial court' s private, in -chambers questioning of two prospective

jurors in Schreiber' s absence violated his right to be present. But this argument fails because

Schreiber fails to show actual and substantial prejudice.


        At its core, the right to be present entitles a defendant to be present when evidence is

offered against him. In re Pers. Restraint ofLord, 123 Wn.2d 296, 306, 868 P. 2d 835 ( 1994).

When a personal restraint petitioner claims that his right to be present was violated, he must

 explain how his absence affected the outcome of any of the challenged proceedings or

conferences" in order to establish actual and substantial prejudice. Lord, 123 Wn.2d at 307.

        Schreiber fails to explain how his absence affected the outcome of the trial court' s in -

                                                               that his                      have
           proceeding. Instead, Schreiber
                                                                                                    made a
chambers                                    baldly   asserts              presence " could
No. 40553 -9 -II


                                                     3
meaningful      difference in the      outcome."          Petition   at   13.   This bald assertion is not sufficient to


support a claim of unlawful restraint. Rice, 118 Wn.2d at 886.

                            II. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL


           Next, Schreiber argues that his appellate counsel rendered ineffective assistance by

failing to argue in Schreiber' s direct appeal that the State' s forensic expert' s testimony violated

Schreiber' s right to confront the witnesses against him.4 We disagree.

            To prevail on a claim of ineffective assistance of appellate counsel, petitioners must show


  that the legal issue which appellate counsel failed to raise had merit and that [ the petitioners]

were      actually   prejudiced   by   the   failure to   raise   the issue."'     In re Pers. Restraint ofDalluge, 152

Wn.2d 772, 787, 100 P. 3d 279 ( 2004) ( quoting                    In re Pers. Restraint ofMaxfield, 133 Wn.2d 332,

344, 945 P. 2d 196 ( 1997)).           Schreiber' s ineffective assistance of appellate counsel claim requires


us   to   consider whether    his   current challenge—            that Gordon' s testimony violated his confrontation

clause rights—        had merit, and if so, whether Schreiber was actually prejudiced by appellate

counsel' s failure to raise these issues on direct appeal. Dalluge, 152 Wn.2d at 787. Appellate

counsel is not ineffective for failing to raise all possible nonfrivolous issues on appeal. Dalluge,

152 Wn.2d at 787. But a claim must have merit to satisfy the Dalluge test' s first prong.

Dalluge, 152 Wn.2d at 787.




3 Schreiber further suggests that the exclusion of one prospective juror after the in -chambers
questioning was improper. But Schreiber does not argue that the prospective juror' s excusal was
improper or explain how his presence could have affected the trial court' s decision to excuse the
prospective juror. Therefore, we do not consider this issue. RAP 10. 3( a)( 6).

4 Schreiber also argues that Gordon' s forensic testimony violated his Sixth Amendment
confrontation clause rights. But Schreiber neither argues nor demonstrates that any
confrontation clause violation caused him actual and substantial prejudice, so this claim fails.
See Coggin, 182 Wn.2d at 122.



                                                                    9
No. 40553 -9 -II



         Schreiber claims that his appellate counsel was deficient for failing to argue on direct

appeal that his confrontation right was violated when Gordon, the State' s forensic expert,

testified to the result of blood alcohol tests that were performed by another technician who was

not available for cross- examination. Gordon testified that, because the technician was not


available to testify against Schreiber, she personally re -tested Schreiber' s blood sample almost

two years later. Gordon' s own result was 0. 13, slightly lower than the technician' s earlier

results, which averaged 0. 14. Gordon testified that unavoidable evaporation explained the


difference, and Schreiber' s own forensic experts agreed. Moreover, Schreiber' s experts and his

trial counsel relied upon the unavailable technician' s earlier result of 0. 14 to establish the

defense of extreme intoxication.

          Schreiber' s claim of ineffective assistance of appellate counsel fails because his

confrontation clause claim had no merit. Dalluge, 152 Wn.2d at 787. Because the absent

technician' s test results supported Schreiber' s defense, his trial counsel made a tactical decision

to waive the confrontation right below. Schreiber'.s forensic experts agreed with and relied upon

the absent technician' s higher blood alcohol test which now forms the basis of his confrontation

clause claim. And Schreiber' s trial attorney used the absent technician' s test in support of his

intoxication theory.

          Trial counsel may waive a defendant' s confrontation clause rights as a matter of trial

strategy without the defendant' s express waiver. Melendez -Diaz v. Massachusetts, 557 U.S. 305,
314   n. 3,   327, 129 S. Ct. 2527, 174 L. Ed. 2d 314 ( 2009). Because Schreiber' s trial counsel


 strategically waived his confrontation clause claim to establish his defense of extreme




                                                     10
No.. 40553 -9 -II



intoxication, the confrontation clause claim had no merit on appeal. 5 See Dalluge, 152 Wn.2d at

787.


           Thus, Schreiber' s appellate counsel was not deficient for failing to raise this claim on

direct appeal and Schreiber' s argument fails.

                                           III. NEWLY DISCOVERED EVIDENCE


           Schreiber further argues that a new trial is warranted in light of newly discovered

evidence about Gordon' s misfeasance and malfeasance regarding her improper quality -assurance

sample certifications. We disagree.


           Under RAP 16. 4( c)( 3), a claim of unlawful restraint may be based on the existence of


material facts that have not previously been presented and that, in the interest of justice, require

the conviction' s vacation. But when the newly discovered evidence is merely cumulative or

impeaching, we will not consider the petitioner' s claim. In re Pers. Restraint ofStenson, 150

Wn.2d 207, 217, 76 P. 3d 241 ( 2003)


           After Schreiber' s trial, it became known that Gordon certified breath testing machine

quality -assurance samples without personally testing them and that her laboratory colleagues
     falsified   records   to   cover   up the   misconduct."   Petition ( App. B);   City ofSeattle v. Holifield,

 170 Wn.2d 230, 234, 240 P. 3d 1162 ( 2010). Gordon' s misfeasance and malfeasance involved


devices used for breath tests, but here Gordon testified to the results of tests on samples of




 5
  Nor would the claim have merit on appeal if framed as an ineffective assistance of counsel
 argument, because the decision to rely on the absent technician' s higher blood alcohol results
was a      legitimate trial tactic. See State        v.   Grier, 171 Wn.2d 17, 42, 246 P. 3d 1260 ( 2011) ("[ T] he
 defendant bears the burden of establishing the absence of any ` conceivable legitimate tactic
 explaining counsel' s performance."') ( quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101
 P. 3d 80 ( 2004)):



                                                                11
No. 40553 -9 -II



Schreiber' s blood. Schreiber provides no evidence to suggest that Gordon' s misfeasance and

malfeasance involved any device, test, or testing protocol used for blood tests. And Schreiber

offers no new evidence about his intoxication. Thus, the only value of Schreiber' s new evidence

is for impeachment.


             Arguing to the contrary, Schreiber relies on Division One' s decision in State v.-Roche,

114 Wn.       App.   424, 437- 38, 59 P. 3d 682 ( 2002). But in Roche, the analyst' s malfeasance created


a chain of custody problem, implicated an element of the offense charged, and devastated the
State'   s   ability to   prove   the   charges.    See 114 Wn.    App.   at   436, 440. Such is not the case here,


thus Roche does not control our decision and Schreiber' s argument fails. See Stenson, 150

Wn.2d at 218.


                                            IV. JUDGE AND JUROR MISCONDUCT


             Schreiber next argues that he is entitled to a new trial because the trial judge and a juror

each slept through portions of the trial.6 We disagree because Schreiber fails to establish a prima

facie case of either actual and substantial prejudice or a fundamental defect inherently resulting

in a complete miscarriage ofjustice.




6 In an argument' s heading, Schreiber also states that his trial counsel was ineffective for failing
to request a mistrial on these grounds. But Schreiber fails to include any legal argument or
citations to authority developing this ineffective assistance claim. See Petition at 33- 35. Such

passing treatment of an issue does not merit judicial consideration. In re Pers. Restraint of
Bratz, 101 Wn.            App.   662, 668   n. 3,   5 P. 3d 759 ( 2000); see RAP 16. 7( a)( 2)( ii).


Moreover, Schreiber fails to provide factual support for the deficiency prong of an ineffective
 assistance claim because the record and declarations do not show that Schreiber' s trial counsel
 knew or should have known that the judge or juror were asleep. Thus, even if Schreiber had
 developed this ineffective assistance claim with legal argument and citations to authority, it
 would fail for lack of evidentiary support.



                                                                  12
No. 40553 -9 -II



A.         Allegedly Sleeping Judge

           Schreiber claims that the trial judge committed a structural error by sleeping during the

trial. Schreiber supports this claim with his own affidavit. The State contests the factual basis of

this claim with an affidavit from the trial judge, who denied " sleeping or dozing during the trial."

Despite this factual discrepancy, a reference hearing is not warranted because Schreiber fails to

establish a prima facie case of either actual and substantial prejudice resulting from a

constitutional error or a fundamental defect inherently resulting in a complete miscarriage of

justice.


           1.   Constitutional Error


           Schreiber does not claim that the trial judge' s alleged sleeping caused any specific error.

Nor does he claim that the judge' s conduct caused him actual and substantial prejudice. Under

these circumstances, Schreiber has failed to provide a basis for us to conclude that his

 conviction was obtained ...         in violation of the Constitution of the United States or the

Constitution      or   laws of the State   of   Washington." RAP 16. 4( c)( 2).


           2. Fundamental Defect


           Apparently claiming the occurrence of a nonconstitutional but fundamental defect,

Schreiber claims that because " the judge slept through any portion of trial, he was functionally

absent— a structural error       mandating       reversal."   Petition at 35. We disagree because Schreiber


fails to state with particularity the facts underlying his claim that the trial court was " functionally

absent" and, in the alternative, Schreiber fails to show a fundamental defect inherently resulting

in a complete miscarriage ofjustice. Petition at 35.




                                                              13
No. 40553 -9 -II



       First, Schreiber' s claim that the trial judge was " functionally absent" is conclusory

because it is not supported by factual allegations that are stated with particularity. Petition at 35.

Schreiber fails to identify any omission ( such as a failure to make a ruling) or act ( such as a

ruling affected by the trial judge' s having slept) that could provide a basis on which to conclude

that the trial judge failed to discharge his functions. Therefore, his claim that the trial judge was

functionally absent is a conclusory allegation, which is not sufficient in a personal restraint

petition. Rice, 118 Wn.2d at 886.


        Second, although it would be very troubling to learn that the trial judge slept through any

portion of the trial, Schreiber fails to show here that it was a fundamental defect resulting in an

inherent miscarriage ofjustice. Accordingly, this claim fails.7

B.      Sleeping Juror

        In addition, Schreiber claims that the presiding juror " did not hear. significant testimony"

because she was sleeping. Petition at 35. But citing State v. Hughes, 106 Wn.2d 176, 204, 721

P. 2d 902 ( 1986), Schreiber        concedes   that "[    a] single juror' s slumber is not per se plain error."


Petition   at   35.   Schreiber then fails to argue that the juror' s slumber was either a constitutional


violation causing actual and substantial prejudice or a fundamental defect inherently resulting in

a complete miscarriage of justice. Accordingly, he fails to make a prima facie showing

warranting relief, and his claim fails.


  We note that courts in other jurisdictions have upheld convictions challenged on the ground
                   fell asleep. United States v. White, 589 F. 2d 1283, 1289 ( 5th Cir. 1979)
that the trial judge

 holding that a trial judge did not commit reversible error by falling asleep during the
defendant'      s   opening   statement);   Hummel   v.   State, 617 N.W.2d 561, 564 ( Minn. 2000) ( holding
that a postconviction petitioner failed to show prejudice resulting from his trial counsel' s failure
to object to an allegedly sleeping judge).



                                                              14
No. 40553 -9 -II



                                 V. RIGHT TO CONFRONT AN EYEWITNESS


            Schreiber next attempts to renew an argument made in his direct appeal by arguing that

the trial court violated his right to confront the witnesses against him when it limited cross-

examination of Corporal Boynton and refused to allow discovery of Corporal Boynton' s

psychological records.      We do not allow Schreiber to renew this argument.


            A personal restraint petition cannot renew an argument that was raised and rejected on


direct appeal unless the interests of justice require the argument' s relitigation. Davis, 152 Wn.2d

at   671.   Schreiber does not assert that the interests ofjustice require relitigation. He claims only

that the decision in his direct appeal incorrectly concluded, without examining the sealed

psychological records, that any error was harmless beyond a reasonable doubt. This claim is

insufficient to allow Schreiber to renew this argument.

                                       VI. FIREARM ENHANCEMENT


            Schreiber further claims that ( 1) evidence was insufficient to support the jury' s special

verdict finding that Schreiber was armed with a firearm and (2) the trial court' s jury instructions

relating to the    special verdict were ambiguous.$    We disagree.


A.          The Evidence Was Sufficient To Prove the Firearm Enhancement


            Schreiber claims that the evidence was insufficient to support the jury' s special verdict on

the firearm enhancement. We disagree.




8 In an argument' s heading, Schreiber further states that his appellate counsel was ineffective for
failing to raise these issues in his direct appeal. Schreiber' s petition fails to include any legal
argument or citations to authority developing this ineffective assistance claim. Thus, we do not
 consider it. RAP 10. 3( a)( 6).




                                                      15
No. 40553 -9 -II



        When a defendant challenges the sufficiency of evidence supporting a firearm

enhancement, we examine the record to decide whether any rational trier of fact could have

found that the defendant was armed. State v. Eckenrode, 159 Wn.2d 488, 494, 150 P. 3d 1116

 2007) ( plurality   opinion).   In a sufficiency of the evidence challenge, the defendant admits the

truth of all the State' s evidence, and we consider the evidence and all reasonable inferences from

it in the.light most favorable to the State. Eckenrode, 159 Wn.2d at 494; State v. Salinas, 119

Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).

        Whether a defendant was armed with a firearm is a fact specific determination. State v.

             Wn.2d 453, 462, 181 P. 3d 819 ( 2008) ( plurality               A defendant was armed with
Neff, 163                                                        opinion).




a firearm if (1) the firearm was easily accessible and readily available for use either for offensive

or defensive purposes, and ( 2) there was a nexus between the defendant, the firearm, and the

crime. Eckenrode, 159 Wn. 2d at 491.


        1.   Easily Accessible and Readily Available for Use

        Here, the evidence was sufficient to show that Schreiber' s firearm was easily accessible

and readily available for use. The State elicited testimony that Schreiber carried the rifle from

the house into the truck, periodically raising it and pointing it toward police officers. The

evidence also showed that Schreiber raised a metal object at a police officer while driving the

truck. The rifle was found loaded in the truck after the fatal collision. Thus, a rational trier of

fact could have found that the rifle was easily accessible and readily available for use.

         2. Nexus Between the Defendant, the Weapon, and the Crime

         To establish that a defendant was armed for purposes of proving the sentencing

 enhancement, the State must establish a connection between the defendant, the weapon and the




                                                      16
No. 40553 -9 -II



crime.   Eckenrode, 159 Wn.2d          at   491. There must be a connection between the defendant and


the weapon and there must be a connection between the weapon and the crime. See State v.

Gurske, 155 Wn.2d 134, 141- 42, 118 P. 3d 333 ( 2005).


         First, sufficient evidence demonstrates Schreiber' s connection to the firearm. Having

crawled with the rifle from his house to his truck, Schreiber held the rifle during the standoff and

while police cars chased him. The evidence showed that he raised the rifle in the direction of

police officers several times, and raised a metal object (presumably the rifle) at a police officer

while driving the truck. Therefore, the evidence shows a connection between Schreiber and the

rifle.



          Second, the evidence, viewed in the light most favorable to the State, shows a connection

between the weapon and the crime. Whether there is a connection between the weapon and the

crime    may depend      on "`   the nature of the crime, the type of weapon, and the circumstances under


which    the   weapon    is found."'   Gurske, 155 Wn.2d at 142 ( quoting State v. Schelin, 147 Wn.2d

562, 570, 55 P. 3d 632 ( 2002) ( plurality opinion)).


          Here, the nature of this intentional second degree murder is a fatal motor vehicle collision

that occurred during Schreiber' s flight from an armed standoff, during which he pointed his rifle
at the police officers several times. Further, Schreiber' s loaded rifle was found inside his truck

after the fatal collision, and a rational trier of fact could have concluded that the rifle was the

metal object Schreiber waved at the police officers while driving the truck. Given these

 circumstances, a rational trier of fact could conclude beyond a reasonable doubt that the rifle was

 connected     to the   crime.   Schreiber' s sufficiency argument fails.




                                                          17
No. 40553 -9 -II



B.      The Jury Instructions Were Not Ambiguous

        Schreiber next claims that the jury instruction regarding the firearm enhancement was

ambiguous.    Petition   at   40.    Schreiber appears to argue that the trial court erred by instructing the.

jury in a manner that relieved the State of its burden to prove each element beyond a reasonable
doubt. See State   v.   Pirtle, 127 Wn.2d 628, 656, 904 P. 2d 245 ( 1996). We disagree.


        We review alleged errors of law injury instructions de novo. State v. Barnes, 153 Wn.2d

378, 3 82,
       .   103 P. 3d 1219 ( 2005).        Jury instructions are proper when, viewed as a whole, they

allow each party to argue its theory of the case, they do not mislead the jury, and they inform the

jury of the applicable law. Barnes, 153 Wn.2d at 382; State v. McCreven, 170 Wn. App. 444,
461- 62, 284 P. 3d 793 ( 2012). A jury instruction "` must make the relevant legal standard


manifestly   apparent    to the     average   juror."'   McCreven, 170 Wn. App. at 462 ( internal quotation

marks omitted) (   quoting State v. LeFaber, 128 Wn.2d 896, 900, 913 P. 2d 369 ( 1996))).

        Here, the trial court' s instruction was unambiguous on its face. In relevant part, the trial

court' s instruction stated:


        A person is armed with a firearm if, at the time of the commission of the crime, the
        firearm is easily accessible and readily available for offensive or defensive use. The
        State must prove beyond a reasonable doubt that there was a connection between
        the firearm and the defendant. The State must also prove beyond a reasonable doubt
        that there was a connection between the firearm and the crime. In determining

        whether this connection existed, you should consider the nature of the crime, the
        type of firearm, and the circumstances under which the firearm was found.

Petition (App. A at jury instruction 33).

        Contending that the instruction was ambiguous because the jurors misunderstood it,

 Schreiber requests a reference hearing " where jurors can be examined, not to impeach their

 verdict, but to demonstrate the reasonableness of a reasonable person misinterpreting the




                                                             M.
No. 40553 -9 -II



instruction."   Reply at 20. But this request misapprehends Schreiber' s burden. We will remand

for a reference hearing only if a personal restraint petition first makes a prima facie showing of

actual prejudice resulting from constitutional error or a fundamental defect resulting in a

complete miscarriage of justice.           Yates, 177 Wn.2d at 17- 18. Schreiber' s request fails for two

reasons.




          First, the sole support for Schreiber' s claimed ambiguity is an affidavit from his trial

counsel, who spoke with the presiding juror after deliberations. According to the affidavit, the

presiding juror told Schreiber' s trial counsel that " she understood that the instructions did not

require any connection between the gun and the crime in order for the [ firearm] enhancement to

apply."    Petition ( App. A   at   3).   But the affidavit is inadmissible hearsay, and therefore Schreiber

cannot rely on it to establish a prima facie case of actual prejudice or a fundamental defect

resulting in a complete miscarriage ofjustice. ER 801, 802; Rice, 118 Wn.2d at 886.

          Second, reviewing the instruction de novo, we hold that it is unambiguous on its face.
Even if we were to consider the juror' s statement, it cannot form the basis for a claim of

instructional error. Our review is not for whether an individual juror mentions a potential


ambiguity in a jury instruction. Instead, we consider whether the jury instructions, when read as

a whole, make the relevant legal standard manifestly apparent to the average juror. McCreven,

 170 Wn. App. at 462.

           Because Schreiber bases his claim on inadmissible hearsay and because the instruction is

 unambiguous on its face, this argument fails.




                                                          19
No. 40553 -9 -II



                             VII. LAW ENFORCEMENT AGGRAVATING FACTOR


          Lastly, Schreiber claims that the trial court erred by imposing an exceptional sentence

based on Sergeant Crawford' s status as a law enforcement officer. Specifically, Schreiber claims

 1) the law enforcement aggravating factor did not exist in 2004 at the time of Schreiber' s crime

and ( 2) application of the aggravating factor that was statutorily codified in 2005 violated the

constitutional prohibition against ex post facto laws. These arguments lack merit.


          Under Blakely v. Washington, 542 U. S. 296, 303- 04, 124 S. Ct. 2531, 159 L. Ed. 2d403

 2004),   a sentencing court may impose an exceptional sentence only after a jury has found,

beyond a reasonable doubt, the existence of aggravating facts justifying the exceptional sentence.

After Blakely, the legislature amended the Sentencing Reform Act (SRA) of 1981, chapter 9. 94A
RCW, " to        create a new criminal procedure for imposing greater punishment than the standard

range or conditions and to codify existing common lawaggravating factors, without expanding

                                      or common     law aggravating    circumstances."   LAWS OF 2005,
or   restricting existing statutory


ch.   68, § 1.


A.        The Law Enforcement Aggravating Factor Existed

          Schreiber first claims that the law enforcement aggravating factor did not exist at the time

of his crime because the legislature had not yet enacted it into law. He argues that the law

enforcement aggravating factor is the functional equivalent of a crime and, therefore, because the

 legislature alone may create crimes, the aggravating factor was invalid before the legislature
 codified   it in 2005 ( after Schreiber' s   crime).   We disagree.


          At the time of Schreiber' s crime, Washington' s common law recognized a law

 enforcement aggravating factor. State v. Anderson, 72 Wn. App. 453, 466, 864 P. 2d 1001 ( 1994)


                                                          20
No. 40553 -9 -II



  A] defendant' s assault on a victim he knows is a police officer justifies an exceptional

sentence.").        The legislature codified this existing aggravating factor after Schreiber' s crime in

Laws of 2005, chapter 68.


              A conviction based on a nonexistent crime is a constitutional error that causes actual and


substantial prejudice. In re Pers. Restraint ofHinton, 152 Wn.2d 853, 860, 100 P. 3d 801 ( 2004).

The legislature has the exclusive authority to define .crimes. State v. Wissing, 66 Wn. App. 745,

755, 833 P. 2d 424 ( 1992), review denied, 120 Wn.2d 1017- 18 ( 1992).


              For purposes of the right to a jury trial, an aggravating factor that increases a sentence

 beyond the         maximum authorized             statutory   sentence ...     is the functional equivalent of an


element of a greater offense              than the   one covered     by   the   jury' s   guilty   verdict."   Apprendi v. New


Jersey,       530 U. S. 466, 494        n. 19,   120 S. Ct. 2348, 147 L. Ed. 2d 435 ( 2000);             see also Ring v.

Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 ( 2002) ( quoting                                Apprendi, 530

U. S.    at   494   n.   19) (   following Apprendi and holding that facts underlying sentencing aggravators

are "`   the functional           equivalent of an element of a greater offense"'             and must be found by a jury);

State    v.   Hylton, 154 Wn.          App.   945, 954, 226 P. 3d 246 ( 2010). Thus, Schreiber argues that an


aggravating factor is the functional equivalent of a crime, and because the legislature has the

exclusive power to define crimes, no sentencing enhancement is valid unless created by the

legislature.


              But courts in Washington have repeatedly declined to hold that aggravating factors are

the " functional           equivalent" of a crime      for   all purposes.      Hylton, 154 Wn.        App.    at   954 (" Apprendi


does not support the contention that aggravating factors are functionally equivalent to elements

 of the crime in all instances; the Court held only that any fact that would increase the penalty for



                                                                   21
No. 40553 -9 -II



a crime beyond the prescribed statutory maximum must be submitted to a jury and proved

beyond   a reasonable       doubt."); see also State v. Siers, 174 Wn.2d 269, 282, 274 P. 3d 358 ( 2012)


 holding that aggravating sentencing factors are not the functional equivalent of essential

elements     that   must   be   charged   in   an   information); State v: Eggleston, 164 Wn.2d 61, 71, 187


P. 3d 233 ( 2008) (    holding that " the double jeopardy clause did not prevent [ the defendant' s]

retrial on   the ` law   enforcement'      aggravating factor"); State v. Benn, 161 Wn.2d 256, 262- 64, 165


P. 3d 1232 ( 2007) ( declining       to treat aggravating factors as equivalent to elements for double

jeopardy purposes).

         We follow our Supreme Court in Siers, Eggleston, and Benn, as well as our own opinion

in Hylton, and decline to extend the reach of the " functional equivalent" language. That is, we

decline to extend the " functional equivalent" framework to treat an aggravating factor as a crime

for purpose of Schreiber' s argument. An aggravating factor is not the functional equivalent of a

crime such that the legislature has the exclusive power to create it. Thus, the " common law" law

enforcement aggravating factor in existence at the time of Schreiber' s crime was not invalid.

         Furthermore, at the time of Schreiber' s crime, the legislature allowed the imposition of


noncodified sentencing aggravators. State v. Ammons, 105 Wn.2d 175, 181, 713 P.2d 719, 718

P. 2d 796 ( 1986);       Hylton, 154 Wn. App. at 955- 56. And the 2005 SRA amendments, which

codified the law enforcement aggravating factor, changed only the procedural law of sentencing,

not the substantive law. See State v. Pillatos, 159 Wn.2d 459, 472, 150 P. 3d 1130 ( 2007);

Hylton, 154 Wn. App. at 955- 56. Thus, Schreiber was sentenced under the substantive law

existing at the time of his crime, and his argument fails. See Anderson, 72 Wn. App. at 466.




                                                               22
No. 40553 -9 -II


B.       The Law Enforcement Aggravating Factor Was Not Applied Ex Post Facto

         Schreiber additionally claims that application of an aggravating factor codified in Laws

of 2005, chapter 68, violated the constitutional prohibition against ex post facto laws. Petition at

46-49. Our Supreme Court has already rejected this argument. Pillatos, 159 Wn.2d at 477; see

also Hylton, 154 Wn. App. at 956- 58. By enacting Laws of 2005, chapter 68, the legislature did

not create new aggravating factors but instead codified aggravating factors that existed under

 both   past and present   law." Pillatos, 159 Wn.2d   at   473. Thus, Schreiber' s argument fails.


         Because Schreiber has failed to establish any meritorious claims, we deny his petition.




 We concur:
                                                                    O-    VWois—
                                                                               wick, P.J.




 Maxa, J. -




 Le.;, J.




                                                  23
