State v. FlemingState v. Fleming
PENOYAR, J.
¶ 1 Jon Royal Fleming appeals his conviction for witness tampering. He raises numerous claims of error on appeal, including a claim that he was denied a unanimous jury verdict on precisely which of the alternate means of witness tampering he committed. He also claims that his offender score was improper because the State failed to present a presentence report or to otherwise prove his prior convictions. We reject all of his arguments and affirm the verdict.
FACTS
¶ 2 Fleming was incarcerated at the Washington Correction Center (WCC) when he learned that Clarence Ward, a man he had been accused of assaulting, was in jail as well.1 In a March 20, 2002, phone conversation with his grandmother, Zenaida Evans, Fleming instructed her to bail Ward out of jail and ask him to disappear until after trial. The Department of Corrections (DOC) recorded this conversation on tape (DOC generally records all inmate phone conversations).
¶ 3 Evans contacted Ward‘s family and offered them money to post bail for Ward so he could disappear and not testify against Fleming. Ward‘s family refused. Meanwhile, DOC investigator George Gilbert discovered the phone conversation between Fleming and Evans and gave a copy of the tape to Detective Jack Gardner with the Mason County Sheriff‘s Office.
¶ 5 The jury convicted Fleming as charged. Fleming now appeals. We consolidated this appeal with his personal restraint petition (PRP).
ANALYSIS
I. Alternate Means of Witness Tampering
¶ 6 Fleming argues that he was denied his constitutional right to a unanimous verdict, which may include the right to jury unanimity as to the means by which he committed the crime. He asserts that witness tampering can be committed by several alternative means: (1) inducing a witness to testify falsely, (2) inducing a witness to unlawfully withhold testimony, or (3) inducing a witness to absent himself from the proceedings.
¶ 7 Criminal defendants in Washington have a right to a unanimous jury verdict. State v. Ortega-Martinez, 124 Wash.2d 702, 707, 881 P.2d 231 (1994);
¶ 8 The threshold test governing whether unanimity is required on an underlying means of committing a crime is whether sufficient evidence exists to support each of the alternative means presented to the jury. Ortega-Martinez, 124 Wash.2d at 707, 881 P.2d 231. If the evidence is sufficient to support each of these alternative means, a particularized expression of unanimity as to the means by which the defendant committed the crime is unnecessary to affirm a conviction; the court may infer that the jury rested its decision on a unanimous finding as to the means. Ortega-Martinez, 124 Wash.2d at 707-08, 881 P.2d 231.
¶ 9 If one or more of the alternative means is not supported by substantial evidence, the verdict will stand only if we can determine that the verdict was based on only one of the alternative means and that substantial evidence supported that alternative means. State v. Rivas, 97 Wash.App. 349, 351-52, 984 P.2d 432 (1999), overruled on other grounds by State v. Smith, 159 Wash.2d 778, 154 P.3d 873 (2007) (conviction affirmed where there was no danger that the verdict rested on unsupported alternative means because evidence was presented as to only one means, even though the jury instruction included three alternative means of assault); State v. Allen, 127 Wash.App. 125, 132-35, 110 P.3d 849 (2005) (conviction overturned where the court could not be certain that the jury relied solely on one means because evidence regarding two alternatives was presented); State v. Johnson, 132 Wash. App. 400, 410, 132 P.3d 737 (2006) (burglary conviction upheld where the reviewing court could tell that the verdict was based on only one means which was supported by substantial evidence). Evidence is sufficient to support conviction if, after viewing the evidence in a light most favorable to the State, a reasonable factfinder could find the essential elements of the crime beyond a reasonable doubt. See State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980).
¶ 10 Here, the State presented substantial evidence only that Fleming tried to induce Ward to absent himself from the proceedings. The only evidence indicating a different means of tampering was the conversation where Evans asked Ward to change his story, but that conversation illustrates only Evans’ crime, not Fleming‘s. Fleming himself concedes that there was not sufficient evidence to establish that Fleming sought to
II. Offender Score
A. Sufficient Evidence to Establish Criminal History
¶ 11 Fleming argues that the trial court incorrectly determined his offender score because it based its calculation on insufficient evidence of Fleming‘s criminal history. This argument is not persuasive. In determining any sentence, “the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.”
B. Same Criminal Conduct Irrelevant
¶ 12 Fleming also argues that the trial court miscalculated his offender score by neglecting to determine on the record whether his prior convictions constituted the same criminal conduct under
¶ 13 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 pursuant to
We concur: ARMSTRONG, P.J., and QUINN-BRINTNALL, J., concurring in result only.