Opinion
No. 51581-1-I.
Filed: November 20, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-8-03690-4. Judgment or order under review. Date filed: 12/06/2002.
Counsel for Appellant(s), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
M.C., a juvenile, was convicted of second-degree escape. He appeals, arguing the evidence was insufficient to support his conviction. We agree and reverse.
FACTS
M.C. was placed on electronic home monitoring pending trial on a charge of second-degree malicious mischief. Stevie Greer, an Alternative to Secure Detention Specialist, met with M.C. and his mother to explain electronic home monitoring. M.C. signed an electronic monitoring placement contract, under which M.C. agreed to remain in his home unless given a curfew (permission to leave for a particular reason).
M.C. was given a curfew to attend a court proceeding. According to the later certification for determination of probable cause, M.C. appeared in court with his mother, but afterward fled her company and did not return home. Apparently, his mother telephoned Greer, who sought an arrest warrant. The court issued a `warrant activity order.' Under the heading `Findings,' the court checked a box titled `Other' and wrote in `Respondent has absconded from {electronic home monitoring}.' Exhibit 2. M.C. was arrested and charged with second-degree escape.
At trial, the State's only witness was Stevie Greer. Defense counsel objected to Greer's testimony that M.C. did not return home following his court appearance as hearsay. The court sustained the objection. The State had also planned to present M.C.'s mother as a witness, but she could not be located and did not testify. The State offered, and the court admitted, the warrant activity order. Accordingly, the only evidence that M.C. escaped was the warrant activity order finding that `Respondent has absconded from {electronic home monitoring}.' The trial court found M.C. guilty of escape in the second degree and sentenced him to 28 days' confinement. This appeal followed.
DISCUSSION
To convict M.C. of second degree escape, the State had the burden to prove beyond a reasonable doubt that M.C. knowingly escaped electronic monitoring. RCW 9A.76.120(1)(a); RCW 13.40.020(9). The State argues the warrant activity order was sufficient to support M.C.'s conviction because the trial court could rely on the warrant judge's factual finding that M.C. had absconded.
In support of its argument, the State asserts this case is analogous to bail jumping cases, where a trial court may rely on the issuance of a bench warrant as substantive proof of the defendant's crime. We know of no case holding that a warrant, standing alone, is sufficient evidence for conviction. But in any event, the cases are distinguishable in one crucial aspect: the judge issuing a bench warrant for failure to appear has personal knowledge that the defendant failed to appear in court. In this case, the warrant judge did not witness M.C.'s escape, but rather issued the warrant in reliance on hearsay statements of his mother, as related by the officer seeking the warrant.
See State v. James, 104 Wn. App. 25, 35, 15 P.3d 1041 (2000) (holding improper admission of prosecutor's declaration regarding defendant's failure to appear was harmless because additional evidence supported the conviction including the order for bench warrant, which `plainly states James failed to appear as ordered').
A warrant need only be supported by probable cause, not by proof beyond a reasonable doubt. State v. Gillenwater, 96 Wn. App. 667, 670, 980 P.2d 318 (1999). Probable cause consists of reasonably trustworthy information which would justify a belief that an offense has been committed. State v. Terronova, 105 Wn.2d 632, 643, 716 P.2d 295 (1986). Because probable cause is a quantum of evidence `less than . . . would justify . . . conviction,' probable cause may, and often does, exist in the absence of evidence which would result in proof beyond a reasonable doubt. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Factual findings supporting a warrant do not amount to proof beyond a reasonable doubt when they are founded on hearsay. Under the circumstances, M.C.'s conviction is not supported by sufficient evidence.
Reversed.