State v. Dent

Majority - Brachtenbach, J.

No, the "substantial step" element of criminal conspiracy does not require "more than mere preparation"; instead, it is "conduct which strongly indicates a criminal purpose" and can include preparatory acts that further the conspirators' agreement. The court distinguished conspiracy from attempt, noting that RCW 9A.28.040(1) for conspiracy requires a "substantial step in pursuance of such agreement," while RCW 9A.28.020(1) for attempt requires a "substantial step toward the commission of that crime." The purpose of the "substantial step" in conspiracy is to "manifest 'that the conspiracy is at work,'" focusing on the heightened dangers inherent in group activity and allowing for earlier intervention by law enforcement. The court emphasized that even an "insignificant act" may suffice for conspiracy, as long as it furthers the agreement, a lower threshold than that for attempt, which aims to prevent punishment based on intent alone. No, venue is not an element of the crime that must be proved beyond a reasonable doubt; it is a matter of determining the proper forum, and challenges to venue are waived if not timely raised, generally by the omnibus hearing or end of the State's case if new evidence arises. Citing State v. Hardamon, the court reiterated that venue is not an element but a procedural matter. It clarified that any prior suggestion that venue is an "element" (e.g., in State v. Marino) was erroneous. Venue need not be proved beyond a reasonable doubt and can be established by circumstantial evidence or judicial notice. The court held that challenges to venue must be timely raised, typically at the omnibus hearing per CrR 4.5(d), or at the end of the State's case if new evidence emerges. Untimely exceptions, such as Balcinde's objection made after jury instructions and closing arguments, are not preserved unless the error is of constitutional magnitude, which venue is not. The court found venue properly laid in Snohomish County, as Dent's phone calls and letters to Tryon (a Snohomish County resident) communicating instructions for the conspiracy constituted overt acts in furtherance of the conspiracy there. No, the trial court did not err in denying Balcinde's motions for mandatory or discretionary severance. First, Balcinde's challenge regarding the admission of Dent's out-of-court statements for mandatory severance under CrR 4.4(c)(1) was not properly raised on appeal because the brief failed to specify which statements were allegedly admitted in violation of hearsay rules, as required by RAP 10.3(a)(3), precluding review on the merits. Second, regarding discretionary severance for speedy trial purposes, the court acknowledged the delay beyond Balcinde's speedy trial period but stated that severance is not mandatory in such circumstances (State v. Melton). Balcinde did not allege actual prejudice to his defense from the delay, and the strong policy favoring judicial efficiency through joint trials supported the denial. Third, as to discretionary severance based on the admission of Dent's statements and the limiting instruction, the court overruled its prior reliance on State v. Ferguson (as cited in State v. Mitchell) for the proposition that admissible out-of-court statements of a codefendant could necessitate discretionary severance. The court clarified that Ferguson involved inadmissible statements (now covered by CrR 4.4(c)(1) and Bruton v. United States). For statements admissible under hearsay rules, severance is not necessary. The court also found that the voluminous evidence covered by the limiting instruction did not constitute the "powerfully incriminating extrajudicial statements" that would render the instruction ineffective under Bruton, as jurors are generally presumed to follow instructions.