STATE v. LANPHAR (2004)

PART PUBLISHED OPINION

Tim James Lanphar appeals from his conviction of bail jumping for failing to appear before a supervised release officer and in court.   He argues that RCW 9A.76.170, the bail jumping statute, is unconstitutional and the prosecutor committed misconduct during closing argument.   He also argues, pro se, that the trial court erred in admitting evidence and that he received ineffective assistance of counsel.   We affirm.

FACTS

On December 26, 2002, the court released Lanphar from custody after the police arrested him for taking a motor vehicle without permission.   The court conditioned Lanphar's release on his posting a $5,000 bail bond.   And the court ordered that Lanphar be “released on conditional supervision ․ to be placed in the custody of the Supervised Release Officer.”   Clerk's Papers (CP) at 1. The court directed Lanphar to appear in court at 9:00 a.m. on January 14, 2002, to answer the charges.

Lanphar failed to report to the supervised release officer as ordered.   He also failed to appear in court on January 14, 2003, as ordered.

By second amended information, the State charged Lanphar with taking a motor vehicle without permission in the second degree (count I), a violation of RCW 9A.56.070(2), and bail jumping (count II), in violation of RCW 9A. 76.170.

The matter was tried to a jury.   During rebuttal argument and relying on evidence not adduced at trial, the prosecutor referred to varying dates when Lanphar should have appeared.   The trial court sustained defense counsel's objection and instructed the jury to disregard the remarks.

The jury found Lanphar not guilty of count I and guilty of count II. Lanphar appeals.

ANALYSIS

Constitutionality

On July 1, 2001, a legislative amendment to the bail jumping statute removed a knowledge element and added an affirmative defense section.   Laws of 2001, ch. 264, sec. 3. Before July 1, 2001, the statute provided that

(1) Any person having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before any court of this state, and who knowingly fails to appear as required is guilty of bail jumping.

Former RCW 9A.76.170(1) (2000) (emphasis added);  State v. Pope, 100 Wash.App. 624, 627, 999 P.2d 51, review denied, 141 Wash.2d 1018, 10 P.3d 1074 (2000).

 Lanphar first contends that the 2001 amendment unconstitutionally violates the Washington Constitution, article II, section 19.   Under that constitutional provision, “[n]o bill shall embrace more than one subject, and that shall be expressed in the title.”   He argues that the new statutory language expanded beyond the bill's restrictive title relating to “escaping from custody,” rendering the provision unconstitutional and void.   Appellant's Br. at 7. Therefore, he asserts, the elements of the pre-July 1, 2001 bail jumping crime apply to his case and because the State did not prove that he “ knowingly” failed to appear, his conviction must be reversed and dismissed.¹

 We presume the constitutionality of statutes.  State v. Simmons, 117 Wash.App. 682, 688, 73 P.3d 380 (2003), aff'd, 152 Wash.2d 450, 98 P.3d 789 (2004) (citing State v. Blank, 131 Wash.2d 230, 235, 930 P.2d 1213 (1997)).   Lanphar bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt.  Simmons, 117 Wash.App. at 688, 73 P.3d 380 (citing Blank, 131 Wash.2d at 235, 930 P.2d 1213).

 Lanphar takes issue with the title, suggesting that it only comprises escape from a “custody.”   In our review under the article 2, section 19 analysis, we construe the title with reference to the language used in it.   State v. Thomas, 103 Wash.App. 800, 807, 14 P.3d 854 (2000), review denied, 143 Wash.2d 1022, 29 P.3d 719 (2001).   In doing so, we examine the body of the act in determining whether the title reflects the act's subject matter.   Thomas, 103 Wash.App. at 807, 14 P.3d 854.

 Titles may be general or restrictive.  Thomas, 103 Wash.App. at 807, 14 P.3d 854.   A general title is one which is broad rather than narrow.  Citizens for Responsible Wildlife Mgmt. v. State, 149 Wash.2d 622, 632-33, 71 P.3d 644 (2003) (citing Amalgamated Transit Union Local 587 v. State, 142 Wash.2d 183, 207, 11 P.3d 762 (2000)).   In assessing whether a title is general, it is not necessary that the title contain a general statement of the subject of an act;  a few well-chosen words, suggestive of the general subject stated, is all that is necessary.  Responsible Wildlife, 149 Wash.2d at 632-33, 71 P.3d 644 (citing Amalgamated, 142 Wash.2d at 209, 11 P.3d 762).

 A general title broadly allows subjects that are “reasonably germane” to its title to be contained in the bill's body and even “incidental subjects or subdivisions” may be allowed.  Responsible Wildlife, 149 Wash.2d at 632-33, 71 P.3d 644.  “[A] title complies with the constitution if it gives notice that would lead to an inquiry into the body of the act, or indicate to an inquiring mind the scope and purpose of the law.”  Wash. Fed'n, 127 Wash.2d at 555, 901 P.2d 1028.

 We give general titles liberal construction.  Responsible Wildlife, 149 Wash.2d at 633, 71 P.3d 644.   The title need not be an index to the bill's contents or detail the bill's provisions.  Retired Pub. Employees, 148 Wash.2d at 628, 62 P.3d 470;  Wash. Fed'n, 127 Wash.2d at 556, 901 P.2d 1028.  “ ‘All that is required is that there be some “rational unity” between the general subject and the incidental subdivisions.’ ”   Wash. Fed'n, 127 Wash.2d at 556, 901 P.2d 1028 (quoting State v. Grisby, 97 Wash.2d 493, 498, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983)).

 A restrictive title encompasses “a particular part or branch of a subject ․ carved out and selected as the subject of the legislation.”   Responsible Wildlife, 149 Wash.2d at 633, 71 P.3d 644.   A restrictive title limits the act's scope to that in the title.  Responsible Wildlife, 149 Wash.2d at 633, 71 P.3d 644.   We do not accord restrictive titles liberal construction, and we are more likely to find unconstitutional violations of the single-subject rule in a restrictively titled bill.  Responsible Wildlife, 149 Wash.2d at 633, 71 P.3d 644.

The title of Laws of 2001, ch. 264, “Escaping From Custody,” broadly identifies what crimes comprise an escape from custody.   As such it is general.   Construing it liberally, we note that custody is a “restraint pursuant to a lawful arrest or an order of a court, or any period of service on a work crew.”  RCW 9A.76.010(1).   Here, the court ordered Lanphar to do two things, report to a supervised release officer and return to court on January 14.   Thus, he was subject to a court order restraining him from acting otherwise.   Bail jumping is a form of escape.   Lanphar's constitutional argument fails.²

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 RCW 2.06.040, it is so ordered.

Prosecutorial Misconduct

Lanphar further contends that the prosecutor engaged in misconduct during closing argument.   He asserts because the prosecutor argued facts not in evidence, Lanphar's conviction must be reversed.

In reviewing the prosecutorial misconduct claim here, we evaluate whether the prosecutor engaged in improper argument resulting in prejudice.  State v. Dhaliwal, 150 Wash.2d 559, 578, 79 P.3d 432 (2003).   Lanphar bears this burden of showing that the prosecutor's comments created a substantial likelihood of prejudice Finch, 137 Wash.2d at 839, 975 P.2d 967.   Prejudice occurs where “there is a substantial likelihood the instances of misconduct affected the jury's verdict.”  Dhaliwal, 150 Wash.2d at 578, 79 P.3d 432 (citation omitted).   We look to the argument's context, noting that even if the argument is improper, no grounds for reversal exist where defense counsel raised an argument to which the prosecutor must reply.  State v. Russell, 125 Wash.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995).

Lanphar objected during the State's rebuttal when the prosecutor argued:

The testimony is that there's nothing in the file and never was about any date other than the 14th, except in this declaration, and that's the second point I want to make.

This declaration says the 17th, and it seems like [defense counsel is saying that Mr. Lanphar thought he was supposed to be in court on the 17th, implying that maybe that's what [the original defense counsel] told him, and that's why he wasn't there on the 14th.   Well, the answer to that, ladies and gentlemen, and the reason why that the nail that, you know, nails that door shut is this:  He wasn't in court on the 17th-

[Defense counsel]:  Objection, Your Honor.   There's absolutely no testimony, nothing in the evidence that suggests that.   Absolutely nothing.

The Court:  On the 17th.   Yeah.

[Defense counsel]:  I would ask that that-the jury be instructed to ignore that.

The Court:  The jury will ignore the following-the proceeding comment by [the prosecutor].   Now, you've got to remember that closing arguments are that, arguments.   They are not evidence.   So you must rely upon your memory, your notes.   Make sure that any argument that is being mentioned by counsel is supported by the evidence that you have received.

Okay. So we'll strike the last comment by [the prosecutor].

[Defense counsel]:  Thank you, Your Honor.

[Prosecutor]:  Well, let me rephrase.   Is there any evidence before you that he was in court on the 17th?   Have you been presented with any evidence that he showed up, or that he made any effort to show up when he thought he was supposed to show up, even if it was the wrong date?   That's what nails that door shut.

2 Report of Proceedings (RP) at 356.

In reviewing these remarks in context, the prosecutor clearly responded to Lanphar's closing argument that his counsel confused the dates.   The prosecutor properly argued in reply.   But even if the comment was not proper, Lanphar cannot establish prejudice where the trial court sustained Lanphar's objection and instructed the jury to disregard the prosecutor's comments.

Statement of Additional Grounds

Pro se,3 Lanphar further contends that he received ineffective assistance of counsel.   Specifically, he argues that he did not appear at his January 14 court hearing because counsel misinformed him of the date.4

To establish ineffective assistance of counsel, Lanphar must demonstrate deficient representation resulting in prejudice.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   We review counsel's performance based on an objective reasonableness standard.  State v. McFarland, 127 Wash.2d 322, 334-36, 899 P.2d 1251 (1995).

At the January 14 hearing, Lanphar's counsel stated on the record, “Good morning, Your Honor.   I was talking to Mr. Lanphar yesterday on the telephone, he said he'd be here.   I don't know what the problem is.   He's not here.”   2 RP at 216.   At Lanphar's later bail jumping trial, new counsel represented him.   The new counsel called the former counsel as a witness.   Lanphar's former counsel could not recall talking to Lanphar on January 13.   But he also said that he could have talked to Lanphar and yet not remember it because he usually does not take notes when speaking to clients on the telephone.

Lanphar did not testify at trial.   Evidence presented showed that Lanphar's counsel spoke to him the day before the hearing and anticipated that Lanphar would attend.   And Lanphar's counsel also testified that he did not tell Lanphar that his hearing date was changed to January 14.   Lanphar fails to establish deficient representation that prejudiced him and his ineffective assistance of counsel argument fails.

Finally, Lanphar contends that the trial court erred in not allowing Lanphar's girl friend to testify.   He asserts his counsel's assistant, Chris Gorton, told Lanphar's girlfriend, Eva Springer, that his office had misinformed Lanphar about the court date, thus offering proof that he did not fail to appear.

The trial court declined to admit the testimony as hearsay.   But the court allowed Gorton to testify that:

Gorton:  Did I know that he had missed his court date?

[Lanphar's counsel]:  Yeah.

Gorton:  I did.

[Lanphar's counsel]:  Okay. Did you tell Ms. Springer then?

Gorton:  That I don't remember.   I honestly don't remember.   I don't remember if I told Ms. Springer he had missed his court date or if I didn't.

[Lanphar's counsel]:  Okay. You may have.

Gorton:  I could have.   It's very-a possibility.   I really don't remember.

2 RP at 255-56.

After Gorton's testimony, Springer made an offer of proof to determine the admissibility of Springer's testimony.   She testified that Gorton told her that the original defense counsel told him that he (original defense counsel) had misinformed Lanphar about the hearing date.

Hearsay is an out of court statement offered to prove the truth of the matter asserted.  ER 801(c).  Unless it fits within an exception, hearsay is inadmissible.  ER 802.   We review a trial court's evidentiary rulings for abuse of discretion.  State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998).   A court abuses its discretion when it bases its ruling on untenable grounds or reasons.  State v. Michielli, 132 Wash.2d 229, 240, 937 P.2d 587 (1997).

Springer's testimony is clearly inadmissible hearsay, not subject to any exception.   The trial court did not abuse its discretion in refusing to admit the testimony.

Affirmed.

FOOTNOTES

1.   The State charged and convicted Lanphar under the post-July 1, 2001 statute which provides, in part:(1) Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state, or of the requirement to report to a correctional facility for service of sentence, and who fails to appear or who fails to surrender for service of sentence as required is guilty of bail jumping.(2) It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.RCW 9A.76.170.

2.   Lanphar also claims two instructional errors.   But these arguments depend on his prevailing on his constitutionality claims.   As we do not hold the statute unconstitutional and void, we do not address these assignments of error.

3.   RAP 10.10(a).

4.   In support of his argument that his counsel provided ineffective assistance, Lanphar confusingly explains that his counsel did not remember charges filed against Lanphar a few days before trial began on another criminal matter involving Lanphar and that his second counsel could corroborate this fact.   Nothing in the record before us stemming from Lanphar's bail jumping trial supports Lanphar's assertion and we decline to review it.  State v. Benn, 120 Wash.2d 631, 661, 845 P.2d 289, cert. denied, 510 U.S. 944, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993) (citing State v. Lord, 117 Wash.2d 829, 853, 822 P.2d 177 (1991)).

HOUGHTON, J.