IN THE COURT OF APPEALS OF THE STATE OF
STATE OF WASHINGTON, 20(3 JUN 17 AH 9:30
No. 68150-8-1
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
FRANK JOSEPH NELSON,
Appellant. FILED: June 17, 2013
Appelwick, J — Nelson appeals his convictions for identity theft and forgery.
The trial court did not abuse its discretion in denying his motion to sever count III
from counts I and II or in determining the scope of a potential witness's Fifth
Amendment privilege. Nor did the deputy prosecutor improperly comment on
Nelson's right to remain silent. The contentions in Nelson's statement of additional
grounds for review do not warrant appellate relief. We affirm.
FACTS
The State charged Frank Nelson with one count of second degree identity
theft (count I) and two counts of forgery (counts II and III). The trial court denied
Nelson's motion to sever count III from counts I and II.
Counts I and II were based on evidence that Nelson used an automatic teller
machine (ATM) on January 16, 2011, to deposit checks for $447.97 and $2,000.00
into his bank account. Nelson was the payee on both checks.
The check for $447.97 was drawn on the account of Shaun O'Kinsella.
O'Kinsella had originally written the check to the Everett Clinic for $47.97 and
placed it in his mailbox. O'Kinsella did not know Nelson. The check for $2,000.00
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was a convenience check drawn on the credit card account of Dianne McMillian.
McMillian did not know Nelson and had never written him a check.
Nelson testified that Lorena Arisman had accompanied him while he made
the deposit. Nelson occasionally worked as a driver and refurbisher for Arisman in
her used furniture business. He claimed that Arisman told him the checks were
payments from customers and that he agreed to deposit the checks for Arisman
because she did not have a bank account. According to Nelson, Arisman entered
his name on both checks.
Count III was based on evidence that Nelson cashed a forged check for
$1,744.26 at the Marysville Money Tree branch. The Washington Department of
Labor and Industries (L&l) issued a disability check in this amount on January 14,
2011 and mailed it to Curtis Winterroth. Winterroth never received the check.
On the evening of January 17, 2011 a man identifying himself as Frank
Joseph Nelson appeared at the Money Tree branch to cash Winterroth's check,
which was altered to designate "Frank Joseph Nelson" as the payee. Maria Angel,
the teller, confirmed that the man matched the picture on Nelson's identification
photo. Because Nelson had an existing account, Angel updated the information on
the account. Angel then asked the man to let his cell phone ring. She called
Nelson's cell phone number and confirmed that the voice on the voicemail message
matched the voice of the man at her counter.
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Angel's supervisor, Warren Carlton, also approved the transaction. Shortly
after the man left, Carlton looked at the check again and noticed that the original
payee's name had been "wash[ed]."
Several weeks after the incident neither Angel nor Carlton could positively
identify Nelson on a photomontage. Angel characterized Nelson's photo as the one
that was "closer to the person I had helped that night." Carlton pointed to two
photos, including Nelson's, that resembled the man who cashed the check.
Using the cell phone number from Nelson's Money Tree account, Everett
Police Officer Ryan Hogue called Nelson about the incident on January 31, 2011.
Nelson told Hogue that he had recently lost his wallet at a grocery store and that
someone must be using his identification. In one of several statements to police,
Nelson denied cashing the check at Money Tree and claimed that he never used his
middle name "Joseph" when cashing a check. He acknowledged, however, that the
signature on the check "really, really looks like my signature."
Nelson stipulated to the admissibility of his statements to police. The State
played an audio recording of one of the statements during trial.
The jury found Nelson guilty as charged, and the court imposed a standard
range term of 26 months.
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DISCUSSION
I. Motion to Sever
Nelson contends that the trial court erred in denying the defense motion to
sever count III, the Money Tree incident, from counts I and II, which involved the
O'Kinsella and McMillian checks. We review the trial court's denial of a motion to
sever for an abuse of discretion. State v. Bvthrow. 114 Wn.2d 713, 717, 790 P.2d
154(1990).
The trial court must sever multiple offenses for trial if "the court determines
that severance will promote a fair determination of the defendant's guilt or
innocence of each offense." CrR 4.4(b). The joinder of multiple offenses may
prejudice the defendant because:
"(1) [the defendant] may become embarrassed or confounded in
presenting separate defenses; (2) the jury may use the evidence of
one of the crimes charged to infer a criminal disposition on the part
of the defendant from which is found his guilt of the other crime or
crimes charged; or (3) the jury may cumulate the evidence of the
various crimes charged and find guilt when, if considered
separately, it would not so find."
Bvthrow. 114 Wn.2d at 718 (quoting State v. Smith. 74 Wn.2d 744, 755, 446 P.2d
571 (1968) vacated in part. 408 U.S. 934, 92 S. Ct. 2852, 33 L. Ed. 2d 747 (1972),
overruled on other grounds in State v. Gosbv. 85 Wn.2d 758, 539 P.2d 680
(1975)).
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The court considers the following factors to ascertain the potential for
prejudice: (1) the strength of the State's evidence on each count; (2) the clarity of
defenses to each count; (3) the court's instructions to the jury to consider the counts
separately; and (4) the admissibility of the evidence of the other crimes even if not
joined for trial. State v. Russell. 125 Wn.2d 24, 63, 882 P.2d 747 (1994). The
defendant has the burden of demonstrating that the manifest prejudice of a single
trial on the offenses outweighs the concern for judicial economy. Bvthrow, 114
Wn.2dat718.
The State's evidence supporting counts I and II included surveillance photos
of Nelson and Arisman depositing the two forged checks. The strength of that
evidence was tempered, however, because Nelson conceded that he had deposited
the checks and claimed he did not know the checks were forged. Although the
Money Tree employees could not positively identify Nelson in a photomontage, one
of the employees testified at length about the identification procedures that she
undertook before cashing Nelson's check. Among other things, the employee
checked Nelson's photo identification and confirmed that the voice on Nelson's
voice mail message matched the voice of the man cashing the check. As the trial
court noted, the strength of the State's evidence for all of the counts was arguably
"fairly comparable," reducing the possibility that the jury might base its "finding of
guilt on any count on the strength of the evidence of another." Bvthrow, 114 Wn.2d
at 721-22.
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The record also supports the trial court's determination that Nelson's
defenses to each count, although different, were clear and not inconsistent. Nelson
claimed that he did not know the two checks he deposited at the ATM were forged
and that someone else had cashed the check at Money Tree using the identification
he had recently lost. These defenses were clear, distinct, and easy to understand,
and Nelson makes no showing that they were compromised by their assertion in a
single trial.
Nelson claims that he would have chosen to testify only on counts I and II if
the trial court had granted the motion to sever. But, a defendant's desire to testify
only as to some of the counts does not require severance unless he makes a
"convincing showing" that he had "important testimony to give concerning one count
and a strong need to refrain from testifying about another." State v. Watkins, 53
Wn. App. 264, 270, 766 P.2d 484 (1989); see also Russell. 125 Wn.2d at 65-66.
Nelson failed to demonstrate a strong need to refrain from testifying about count III.
The nature of Nelson's defenses did not favor severance.
The third factor was not significant here, because the instructions directed
the jury to consider each count separately and provided that the "verdict on one
count should not control [the] verdict on any other count." See 11 Washington
Practice: Washington Pattern Jury Instructions: Criminal 5.05, at 172 (3d
2008); Bvthrow, 114 Wn.2d at 723. We must presume that the jury followed those
instructions. State v. Howard. 52 Wn. App. 12, 24, 756 P.2d 1324 (1988).
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Finally, Nelson argues that severance was warranted because the evidence
supporting counts I and II would not be admissible in a separate trial on count III. In
considering this factor, the trial court commented that although the evidence might
not be strictly cross admissible, there was potentially "extensive commonality and
overlap" in the foundational details of the offenses.
But, even if evidence is not cross admissible, the trial court does not
necessarily abuse its discretion in denying severance. Bvthrow, 114 Wn.2d at 720.
Nelson's trial lasted only a few days, and his defenses were clear and distinct.
Under the circumstances, the jury could be "'reasonably expected to
compartmentalize the evidence.'" Bvthrow. 114 Wn.2d at 721 (quoting United
States v. Johnson. 820 F.2d 1065, 1071 (9th Cir. 1987)) (internal quotation marks
omitted).
The record supports the trial court's determination that there was little
likelihood that the joinder of three offenses would prejudice Nelson. The court did
not abuse its discretion in concluding that the concerns for judicial economy
outweighed the potential prejudice. See Bvthrow, 114 Wn.2d at 723.
II. Comment on Prearrest Silence
Nelson contends that the deputy prosecutor violated the Fifth Amendment
and article I, section 9 of the Washington Constitution by commenting on his
prearrest silence. During opening statement, the deputy prosecutor summarized
the expected evidence involving count III. She concluded her summary with a brief
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description of Nelson's claim to Officer Hogue about losing his wallet and his
expressed intention to give a statement to the officer the following day about the
loss. Without objection, the deputy prosecutor then concluded her discussion of
count III by adding:
And he never did show up to make that statement with Officer Hogue.
So that pretty much sums up the L&l Curtis Winterroth case, but
there's two more, as you know.
The deputy prosecutor then moved on to the remaining counts. The trial court later
ruled that the deputy prosecutor would not be able to elicit the suggested testimony
from Officer Hogue.
The State may not comment on a defendant's Fifth Amendment right to
remain silent, including a defendant's prearrest silence. State v. Gregory. 158
Wn.2d 759, 839, 147 P.3d 1201 (2006); State v. Lewis. 130 Wn.2d 700, 705, 927
P.2d 235 (1996). An impermissible comment on silence occurs when the State
uses the defendant's silence "as substantive evidence of guilt or to suggest to the
jury that the silence was an admission of guilt." Lewis. 130 Wn.2d at 707. But, the
primary concern is "whether the prosecutor manifestly intended the remarks to be a
comment on that right." State v. Crane. 116 Wn.2d 315, 331, 804 P.2d 10 (1991).
So long as the focus of the questioning or argument "'is not upon the exercise of the
constitutional right itself,'" the inquiry or argument does not infringe upon a
constitutional right. Gregory. 158 Wn.2d at 807 (quoting State v. Miller. 110 Wn.
App. 283, 284, 40 P.3d 692 (2002)).
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The brief reference to Nelson's failure to follow through on his expressed
intention to make a statement was primarily part of the deputy prosecutor's short
description of the investigative process involving count III. The comment included a
brief summary of Officer Hogue's telephone call to Nelson and Nelson's explanation
about his lost wallet. The deputy prosecutor made no further reference to the issue
during the State's presentation of evidence and did not invite the jury to draw any
negative inferences from the incident. Moreover, Nelson did not in fact refuse to
talk to the police, and his statements to police were admitted at trial. See Gregory.
158 Wn.2d at 840. Viewed in context, the brief remark did not constitute an
impermissible comment on Nelson's right to remain silent. See JcL (comment that
defendant did not contact investigating officer for three days was not a comment on
silence).
III. Sixth Amendment Right to Compel Witness Testimony
Nelson contends that the trial court violated his Sixth Amendment right to
compel witnesses by allowing Lorena Arisman's attorney to assert a "blanket"
privilege on her behalf. The record fails to support this claim.
Both the Sixth Amendment and the Washington Constitution protect a
defendant's right to compel the testimony of witnesses. State v. Lew. 156 Wn.2d
709, 731, 132 P.3d 1076 (2006). The valid assertion of a witness's Fifth
Amendment privilege, however, "'justifies a refusal to testify despite the defendant's
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No. 68150-8-1/10
Sixth Amendment rights.'" Jp\ (quoting United States v. Goodwin, 625 F.2d 693,
700 (5th Cir. 1980)).
Generally, a witness may invoke the Fifth Amendment privilege only in
response to specific questions. Lew. 156 Wn.2d at 731-32. But, "[i]f the judge has
'specialized knowledge' of the likely testimony and can determine whether the
privilege is properly asserted for that witness, the judge may allow the witness to
refuse to answer all questions." jp\ (quoting United States v. Moore. 682 F.2d 853,
856 (9th Cir. 1982)). We review the trial court's determination of the scope of the
witness's privilege for an abuse of discretion. See State v. Lougin, 50 Wn. App.
376, 382, 749 P.2d 173(1988).
Contrary to Nelson's contention, counsel for Arisman did not assert a true
blanket Fifth Amendment privilege on her behalf. The State charged Arisman with
several counts of identity theft and forgery under circumstances similar to those
involving Nelson, although the charges did not involve the same checks. Nelson
sought to compel Arisman's testimony, arguing that she could testify about her
employment of Nelson in her used furniture business, her lack of a bank account,
and her need to pay him by depositing customer checks into his bank account.
Arisman's counsel informed the court that he had just been appointed and
had not yet reviewed the voluminous discovery in her case or the evidence in
Nelson's case. For this reason, he wanted to assert the privilege on her behalf "or
have her assert it" so that she would not inadvertently compromise the defenses in
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her own pending case. The trial court then reviewed Nelson's proposed questions
in some detail.
The court acknowledged that viewed in isolation, questions about Arisman's
mere participation in the used furniture business and her employment of Nelson, her
methods of payment, and her use of Nelson's bank account might seem pretty
innocuous." But when combined with Nelson's claim that Arisman had given him
the forged checks to cash, the mere fact that Arisman was involved in the business
could support a reasonable inference that the two were working together. At the
very least, Arisman's responses to the proposed questions would tend to confirm
Nelson's claim that she was involved in the crime and would therefore be
incriminating. On appeal, Nelson offers no meaningful argument to the contrary.
Here, the trial court carefully considered the application of Arisman's privilege
to the specific questions that Nelson proposed. The court did not prohibit Nelson
from calling Arisman as a witness to ask "very narrow, tailored things" that did not
implicate the potentially incriminating issues related to her participation in the
business. Nelson did not identify any further proposed questions and did not
attempt to call Arisman to the stand. The trial court determined the scope of
Arisman's privilege based on its specific knowledge of the proposed questions and
Arisman's anticipated answers and did not permit Arisman's counsel to assert a
blanket Fifth Amendment privilege. Nelson has failed to demonstrate any abuse of
discretion.
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IV. Statement of Additional Grounds For Review
In his statement of additional grounds for review, Nelson contends that the
trial court erred when it provided the audio recording of his interview with the Everett
police to the jury during deliberations, but failed to include a playback device. The
jury received a transcript of the edited recording while it played during the State's
case, but the court did not provide the transcript during deliberations. Nelson
argues that the trial court's decision deprived the jury of the defense's most
persuasive exculpatory evidence.
Just before the case was submitted to the jury, the deputy prosecutor and
defense counsel informed the court that the carefully edited audio recording of
Nelson's police interview that was played during trial contained a reference to a
stolen $2,500 check that was not part of the charge. The parties had intended to
delete the reference from both the recording and the transcript. The reference was
inadvertently left on the audio recording, although it was removed from the
transcript.
After a lengthy discussion, the trial court decided to provide the jury with all of
the trial exhibits, including the recording, but did not provide a device to play it. The
court expressed concern that the recording, with its improper reference, could be
played "over and over." The court stated that it would revisit the issue if the jury
asked to listen to the recording. Defense counsel raised no objection to this
procedure.
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The trial court may, in its discretion, limit potential prejudice by controlling the
jury's access to recorded exhibits. See State v. Frazier. 99 Wn.2d 180, 191, 661
P.2d 126 (1983) (trial court did not abuse its discretion in allowing defendant's
recorded statement to go to the jury without playback equipment and permit
playback upon request). Nelson has failed to demonstrate any abuse of discretion.
Nelson also contends that the State violated his Fourth Amendment right to a
judicial determination of probable cause within 48 hours after his warrantless arrest.
See County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L Ed. 2d
49 (1991); CrR 3.2.1; CrRLJ 3.2.1. Because these allegations rest on matters that
are outside the appellate record, we will not consider them on direct appeal. See
State v. McFarland. 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995).
Finally, in his opening brief, Nelson challenged the calculation of his offender
score. The State conceded error. With our permission, the trial court has now
resentenced Nelson based on the recalculated offender score. See RAP 7.2(e).
We therefore do not address the assignment of error.
Affirmed.
WE CONCUR:
£C &*~f.&
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