Opinion
No. 23317-1-III.
Filed: April 13, 2006.
Appeal from Superior Court of Grant County. Docket No: 04-1-00158-0. Judgment or order under review. Date filed: 07/12/2004. Judge signing: Hon. John Michael Antosz.
Counsel for Appellant(s), Julia Anne Dooris, Gemberling Dooris Ladich, PO Box 20008, Spokane, WA 99204-0008.
Janet G. Gemberling, Gemberling Dooris Ladich PS, PO Box 20129, Spokane, WA 99204-7129.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
Albert H Lin, Grant County Prosecutors Office, Law Justice Center, PO Box 37, Ephrata, WA 98823-0037.
UNPUBLISHED OPINION
This appeal follows convictions for a number of crimes following a burglary of a shop. The court failed to instruct the jury on the dollar value necessary to convict of the gross misdemeanor. We therefore reverse the conviction for gross misdemeanor malicious mischief in the third degree and remand for entry of a judgment of guilty for misdemeanor malicious mischief. But we reject Mr. Martinez's claim of prosecutorial misconduct — a claim he raises for the first time here on appeal. We therefore affirm his remaining convictions for burglary in the first degree, obstructing a law enforcement officer, and resisting arrest.
FACTS
Raymond Martinez burglarized a shop in rural Grant County. Deputies responded and caught him, but only after he tried to flee.
Deputy Joseph Wester patted down Mr. Martinez. Mr. Martinez wore blue latex gloves and had an empty knife sheath on his belt. Deputy Wester asked Mr. Martinez where the knife was. Mr. Martinez told him `it should be in the sheath and that it must have fallen out while he was running.' Report of Proceedings (RP) (Vol. 1) at 65. Deputy Wester looked for the knife. He found it `in the dirt right along the path [they] had run.' RP (Vol. 1) at 66. The knife had a fixed blade, three-and-one-half to four inches long.
The State charged Mr. Martinez by an amended information with: (count 1) burglary in the first degree, (count 2) theft in the first degree, (count 3) gross misdemeanor malicious mischief in the third degree, (count 4) obstructing a law enforcement officer, (count 5) resisting arrest, and (count 6) possessing stolen property in the first degree. A jury found him guilty of counts one, three, four, and five. Mr. Martinez appeals.
DISCUSSION
Both Mr. Martinez and the State agree that the court failed to instruct the jury on a necessary element of gross misdemeanor malicious mischief — that the value of the property exceeded $50. They disagree, however, on the proper remedy. Mr. Martinez says the proper remedy is reversal. The State argues that the proper remedy is to remand for entry of a judgment of guilty of simple misdemeanor third degree malicious mischief, which does not require proof of a dollar amount.
Our review is de novo. State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005). We may remand a case with an instruction to convict an individual of a lesser offense if "the jury necessarily found each element of the lesser . . . offense beyond a reasonable doubt." State v. Hughes, 118 Wn. App. 713, 731, 733-34, 77 P.3d 681 (2003) (quoting State v. Gamble, 118 Wn. App. 332, 336, 72 P.3d 1139 (2003), aff'd in part, rev'd in part on other grounds, 154 Wn.2d 457, 114 P.3d 646 (2005)).
A person commits the crime of malicious mischief in the third degree if he `[k]nowingly and maliciously causes physical damage to the property of another, under circumstances not amounting to malicious mischief in the first or second degree.' RCW 9A.48.090(1)(a). Malicious mischief in the third degree is a misdemeanor if the property damage is $50 or less. RCW 9A.48.090(2)(b). It is a gross misdemeanor if the damage exceeds $50. RCW 9A.48.090(2)(a).
Here, the front door of the shop `was forced open and ajar just a bit.' RP (Vol. 1) at 60. The lock had been cut with bolt cutters and the hasp on the door was broken. The deputies heard noise inside the building. Deputy Wester saw Mr. Martinez flee the building.
The boxes and cupboards inside the camp trailer (parked inside the shop) had been emptied on the floor. A hose on the trailer had also been cut.
The elements for misdemeanor and gross misdemeanor malicious mischief in the third degree are identical except for the dollar value of the property damage. RCW 9A.48.090. Monetary value is not an essential element for misdemeanor malicious mischief. RCW 9A.48.090(2)(b); State v. Tinker, 155 Wn.2d 219, 222-23, 118 P.3d 885 (2005) (indicating that value is not an essential element of a crime unless it represents a minimum threshold value that must be met). The instruction here correctly shows the necessary elements for the crime of misdemeanor malicious mischief. Clerk's Papers at 149; RCW 9A.48.090. The jury, then, necessarily found each of these elements when it convicted Mr. Martinez of gross misdemeanor malicious mischief.
We then reverse his conviction for gross misdemeanor malicious mischief in the third degree and remand and instruct the court to enter a judgment of guilty for misdemeanor malicious mischief in the third degree. Hughes, 118 Wn. App. at 731, 733-34.
Mr. Martinez next complains that the prosecutor misstated the evidence, misled the jury during closing arguments, and made an inflammatory statement that Mr. Martinez was a would-be murderer. And none of this is supported by any evidence.
The State responds that it argued reasonable inferences from the evidence. The dispute centers on the potential inference from Mr. Martinez's empty knife sheath.
Legally sufficient prosecutorial misconduct requires both a showing of misconduct and prejudice. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). And, of course, a defendant must object at trial unless the comments are `so flagrant and ill-intentioned' that the resulting prejudice could not have been cured by an instruction to the jury. Id.
Here are the comments Mr. Martinez assigns error to:
The defendant on this date and time was in the process of using this knife. As you can see, and you'll have the opportunity to view this knife, this knife has a button and it has to be unbuttoned in order to come out. This is the knife that was there on February 17th, 2004. As you can see, it is sharp. It is deadly. The defendant was in the process of pulling it out. He was wearing what's been identified as Plaintiff's Exhibit 14, these blue latex hospital gloves. He possibly had a very good grip considering he was using these hospital gloves.
So in the process the defendant had to unsnap this button and then take this knife out. Fortunately for Officer Wester this knife fell on the floor or on the ground. Because if it had not, we wouldn't be talking about Joe Wester as being one person testifying in this case, we might have a coroner testifying about Joe Wester being dead.
RP (Vol. 2) at 244-45 (emphasis added).
A fair summary of the evidence here is that Mr. Martinez ran from Deputy Wester. He ran into a barbed wire fence. He fell to the ground, got up, and continued to run. Deputy Wester tackled him. Mr. Martinez struggled. Deputy Greg Hutchison handcuffed Mr. Martinez. Deputy Wester patted down Mr. Martinez. He found the empty knife sheath on his belt. Deputy Wester asked where the knife was. Mr. Martinez told him `it should be in the sheath and that it must have fallen out while he was running.' RP (Vol. 1) at 65. Deputy Wester did not see Mr. Martinez drop anything as he ran. But he retraced their path and found the knife `in the dirt right along the path [they] had run.' RP (Vol. 1) at 66.
It may have been reasonable to infer that Mr. Martinez would use the knife if it had been available. But there is no evidence that Mr. Martinez reached for the knife, unbuttoned it, removed it, or that he had a good grip on it. There is also no direct evidence that Mr. Martinez would have used the knife to kill Deputy Wester. Dhaliwal, 150 Wn.2d at 577. The prosecutor's comments were then improper. Id. But the question is whether they are `so flagrant and ill-intentioned' that any prejudice could not have been cured by an instruction to the jury. Id. at 578. And we conclude that they are not. The comment was not `a deliberate appeal to the jury's passion and prejudice' or an attempt to create a sense of revulsion. State v. Russell, 125 Wn.2d 24, 89, 882 P.2d 747 (1994). Overreaching? Yes, but not to the extent that the case should be tried again.
The conviction for gross misdemeanor malicious mischief in the third degree is reversed; we remand for entry of a judgment of guilty of misdemeanor malicious mischief in the third degree. We affirm the convictions for burglary in the first degree, obstructing a law enforcement officer, and resisting arrest.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, J. and BROWN, J., concur.