IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON. Leach, C.J. Rashad Swank appeals his conviction for felony driving

Transcription

1 IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent, v. RASHAD ASKIA SWANK, Appellant. No I DIVISION ONE UNPUBLISHED OPINION FILED: September 24, 2012 Leach, C.J. Rashad Swank appeals his conviction for felony driving under the influence of an intoxicant (DUI) and driving while license suspendedrevoked (DWLS) in the first degree. He contends the trial court s introductory jury instruction, based upon Washington Pattern Jury Instruction: Criminal 1.02, 1 misstated the law by advising the jury that punishment may follow conviction, as opposed to will follow conviction. Because a conviction does not always follow a guilty verdict, the trial court s instruction properly stated the applicable law. Even if the court s instruction was improper, Swank has not shown prejudice from any alleged error. We affirm. Background On the evening of May 28, 2010, a Clyde Hill police officer observed Rashad Swank s vehicle traveling in a marked bicycle lane and over the posted 1 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 1.02, at (3d ed. 2008) (WPIC).

2 No I / 2 speed limit. The officer stopped Swank after Swank failed to stop at a five-way stop sign and made a left turn without signaling. Swank told the officer that he thought he was in Seattle, that he did not have a driver s license, and that he had smoked marijuana but had not consumed any alcohol. After Swank failed a number of field sobriety tests, the officer arrested him and transported him to the police station. At the station, a drug recognition expert evaluated Swank. Blood tests revealed concentrations of diazepam (Valium), carboxy THC, and phencyclidine (PCP) a dissociative anesthetic. Swank s license was revoked in 2006 because he was an habitual offender he had four prior DUI convictions and a vehicular assault conviction. The State charged Swank with felony DUI and DWLS in the first degree. Before trial, Swank proposed a modified version of WPIC 1.02 as an introductory instruction. WPIC 1.02 reads, You have nothing whatever to do with any punishment that may be imposed in case of a violation of the law. You may not consider the fact that punishment may follow conviction except insofar as it may tend to make you careful. (Emphasis added.) Swank s proposed instruction substituted the word will for may in the pattern instruction. The court denied Swank s request. The jury convicted Swank on both counts. The court imposed a standard range sentence on the felony conviction. Swank timely appeals. Analysis We review de novo alleged errors of law in jury instructions. 2 Proper -2-

3 No I / 3 jury instructions permit the defendant to argue his theories of the case, do not mislead the jury, and accurately inform the jury of the applicable law. 3 Even if a jury instruction may be misleading, we will not reverse a conviction unless the defendant shows resulting prejudice. 4 An instructional error is harmless if it is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case. 5 Swank argues that the court s instruction misled the jury by implying there may be no punishment and thereby implicitly permitted jurors to exercise less care in rendering their verdict. He contends that a jury instruction implying that a defendant might escape punishment even if convicted may cause the jury to be less attentive and deliberative and less inclined to hold out. Swank asserts that a punishment would inevitably follow a guilty verdict. First, he argues that the Sentencing Reform Act of 1981, chapter 9.94A RCW, requires the court to impose a punishment following a felony conviction. 6 Second, he claims that State v. Womac 7 recognizes that the mere fact of a criminal conviction, as well as the resulting stigma, constitutes punishment. The State contends that the court s instruction accurately states the law 2 State v. Vander Houwen, 163 Wn.2d 25, 29, 177 P.3d 93 (2008). 3 Vander Houwen, 163 Wn.2d at State v. Aguirre, 168 Wn.2d 350, 364, 229 P.3d 669 (2010). 5 State v. Townsend, 142 Wn.2d 838, 848, 15 P.3d 145 (2001) (internal quotation marks omitted) (quoting State v. Golladay, 78 Wn.2d 121, 139, 470 P.2d 191 (1970)). 6 RCW 9.94A.505(1) Wn.2d 643, , 160 P.3d 40 (2007). -3-

4 No I / 4 because even following a conviction, the defendant does not necessarily receive a punishment. It notes that following a conviction, a defendant may move successfully for an arrest of judgment under CrR 7.4, a new trial under CrR 7.5, relief from judgment or order under CrR 7.8, or dismissal under CrR 8.3. We agree with the State that punishment does not always follow a guilty verdict. Therefore, WPIC 1.02 does not misstate the law, and the trial court did not err in giving that instruction. 8 Even if the instruction was improper, any error is harmless. Unlike instructions addressing reasonable doubt and the elements of the offense, the challenged instruction does not address fundamental aspects of the law or the deliberative process. In Washington, [t]he question of the sentence to be imposed by the court is never a proper issue for the jury s deliberation, except in capital cases. 9 In all noncapital cases, the jury is told that punishment is none of its concern, that its sole function is to decide the defendant s guilt or innocence. Punishment is a question of legislative policy; the jury s function is to find the facts. 10 The alleged error is insignificant. Swank did not dispute the evidence on the DWLS in the first degree count, and the evidence on the felony DUI count was overwhelming. The jurors took a solemn oath. 11 The court s 8 Cf. State v. Portnoy, 43 Wn. App. 455, , 718 P.2d 805 (1986) (stating that WPIC 1.02 is no more than a correct statement of the common law informing the jury that it is not its province to grant clemency or mercy, and that it has nothing to do with the punishment to be inflicted if the defendant is found guilty ). 9 Townsend, 142 Wn.2d at 846 (quoting State v. Bowman, 57 Wn.2d 266, 271, 356 P.2d 999 (1960)). 10 State v. Todd, 78 Wn.2d 362, 375, 474 P.2d 542 (1970). -4-

5 No I / 5 introductory jury instruction advised jurors to act carefully, and the court gave proper instructions regarding deliberation and reasonable doubt. Considering these factors, Swank has not demonstrated that the court s use of may instead of will affected the final outcome of the case. Swank s second argument that the mere fact of a criminal conviction, as well as the resulting stigma, constitutes punishment assumes that a conviction always follows from a guilty verdict. For the same reasons that punishment does not always follow conviction, this assumption is incorrect. Conclusion The court s jury instruction properly stated the applicable law. Any error in the instruction was harmless. We affirm. WE CONCUR: 11 See CrR