Opinion
No. 64107-7-I.
November 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-11711-8, Jim Rogers, J., entered July 31, 2009.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Cox and Lau, JJ.
Graham appeals his conviction for felony harassment for threatening Stewart with a pistol and forcing Stewart to remove his clothing. He argues that the State failed to prove, and the trial court failed to find, that Graham made a threat to kill. We hold that the State presented sufficient evidence of a threat to kill and the trial court properly found that there was such a threat. We affirm.
FACTS
Horace Graham employed Charles Stewart to do construction work at his house. The men had a friendly social relationship, and on the night of September 8, 2008, they were drinking together and watching television. Their accounts of what transpired thereafter vary substantially, and the court noted that a determination of the facts was made more difficult by the parties' consumption of alcohol that evening.
In the early morning hours of September 9, 2008, Graham became convinced that Stewart had stolen his wallet and money. Graham got his pistol and confronted Stewart, who initially denied taking anything. During the confrontation, Graham believed that Stewart was reaching for a knife that he usually carries. Graham responded by hitting him in the head with the pistol. Stewart then admitted that he had stolen several items, pulled them out of his pockets, and threw them down on the ground. Stewart was injured from the pistol blow, and later required staples for his wounds. Graham then grabbed Stewart by the collar and forcibly escorted him off of the property. Once off of the property, Graham ordered Stewart to take off his clothes. Stewart testified that Graham then told him, "I [will] kill you and stuff like that" and "I need to kill your black ass."
The State charged Graham with second degree assault and felony harassment. Graham waived his right to a jury trial, and the case was tried as a bench trial.
The trial court found Graham not guilty of the assault charge, ruling that the State had not disproved beyond a reasonable doubt Graham's theory that he had acted in self-defense. But, the court found Graham guilty of felony harassment as charged. The trial court deemed Stewart's rendition of those threats to be credible, (ultimately finding that Graham threatened to kill Stewart and that Stewart was placed in reasonable fear that the threat would be carried out based on Graham's actions and threats. The court went on to find that once Graham had moved Stewart off of his property, he exceeded the scope of self-defense and reasonable behavior by forcing Stewart to take his clothes off and threatening to kill him.
Graham timely appealed.
DISCUSSION
I. Proof of a Threat to Kill
Graham contends that the State failed to prove beyond a reasonable doubt that he committed felony harassment based on a threat to kill. The felony harassment statute reads as follows:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or
. . . .
(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. . . .
(2)(a) Except as provided in (b) of this subsection, a person who harasses another is guilty of a gross misdemeanor.
(b) A person who harasses another is guilty of a class C felony if . . . the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person.
RCW 9A.46.020. Graham does not dispute that his actions and the trial court's findings warrant a conviction for harassment. He assigns error exclusively to the factual finding that supports raising harassment from a misdemeanor to a felony: the threat to kill. RCW 9A.46.020(2)(b). The State was required to prove every element of felony harassment beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S.Ct. 2348, 147 L. Ed. 2d 435 (2000).
Here, the State did present evidence that Graham made a threat to kill, through Stewart's testimony about what Graham had said: "I [will] kill you and stuff like that", and "I need to kill your black ass." Stewart also testified to being in fear that Graham would actually carry out the threat: "I was in shock and . . . passing out almost" and "when he cocked the gun, and his eyes, it looked like the devil or something, and I was scared for my life at that time. I said forget it. I'm going to die, you know." Graham disputed that version of the facts with his own testimony, but the trial court found Stewart's rendition of those facts to be more credible. Credibility determinations are for the trier of fact and cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Accordingly, the trial court properly relied on a credibility determination to find that there was evidence supporting each element of the felony harassment charge against Graham. Stewart's testimony is sufficient to meet the State's burden. In light of the trial court's weighing of credibility and the findings of fact, the trial court did not err in finding that the State proved each element of felony harassment beyond a reasonable doubt.
II. The Trial Court's Findings of Fact
Graham also contends that the trial court never entered a finding of fact that there was a threat to kill. But, the trial court expressly wrote:
The following elements of the crime charged (Felony Harassment) were prove[d] by the State beyond a reasonable doubt:
. . . that the defendant on September 8, 2008 knowingly and without lawful authority did threaten to cause bodily injury immediately or in the future to Charles Stewart, by threatening to kill him, and the words or conduct placed Charles Stewart in reasonable fear that the threat would be carried out.
This plainly articulates the trial court's finding that Graham threatened to kill Stewart.
Graham argues that this finding should be disregarded because it is mislabeled as a conclusion of law. Graham's argument is without merit. Findings of fact are examined for what they actually are, regardless of their label. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986). A finding of fact incorrectly denominated as a conclusion of law is reviewed as a finding. Prater v. City of Kent, 40 Wn. App. 639, 644, 699 P.2d 1248 (1985). There is no doubt here that the trial court made a finding of fact that Graham threatened to kill Stewart. This is reinforced by the trial court's oral ruling at trial: "I accept Mr. Stewart's testimony that he was in reasonable fear for his life and that he felt threatened." A court's oral decision may supplement the written findings, so long as there is no inconsistency. State v. Hinds, 85 Wn. App. 474, 486, 936 P.2d 1135 (1997). In light of both the written and oral findings, the trial court properly convicted Graham of felony harassment.
We affirm.
WE CONCUR: