Opinion
No. 33778-9-II.
May 8, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-00847-2, Craddock D. Verser, J., entered August 9, 2005.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
A jury convicted Marvin Howell of first degree escape. He appeals, contending the first degree escape statute is unconstitutionally vague and that the jury received insufficient evidence to find him guilty beyond a reasonable doubt. We disagree and affirm.
Facts and Procedure
Howell was serving community supervision for a felony conviction. Community Corrections Officer (CCO) Tim Thompson supervised Howell. Thompson believed Howell had violated his community supervision conditions and prepared an "order for arrest and detention." Ex. 2; Report of Proceedings (RP) (Aug. 9, 2005) at 9.
Accompanied by another CCO, Thompson arrested and handcuffed Howell at his residence. The two CCOs put Howell into the back of a "cage car" and closed the doors. RP (Aug. 9, 2005) at 14. A Plexiglas barrier with a communication port separated the front and back seats. The back seat doors did not open from the inside but could be opened from the outside if not locked. The two CCOs searched Howell's house for about 10 minutes, leaving him alone in the cage car. They did not give Howell permission to leave.
When the CCOs returned, Howell was gone. Thompson had accidentally failed to lock the doors. Any passerby could have opened the door and let Howell out. The cage car was undamaged, and neither CCO believed Howell had wriggled through the communication port. Police arrested Howell two weeks later.
Howell testified that Thompson was "out to get" him. RP (Aug. 9, 2005) at 57. He said that he saw the CCOs coming and fled before they could arrest him. According to Howell, he did not escape from the cage car because he was never in it. Howell admitted he had previously been convicted of four dishonesty crimes.
The State charged Howell with first degree escape. Explicitly relying on State v. Walls, 106 Wn. App. 792, 25 P.3d 1052 (2001), the State proposed an instruction defining "[d]etention pursuant to a conviction of a felony." Clerk's Papers (CP) at 21. Howell agreed that the instruction accurately stated the law and did not object. The trial court gave the proposed instruction as Instruction 10:
"Detention pursuant to a conviction of a felony" includes a detention based upon a warrant for an alleged violation of probation and/or community supervision when the probation and/or community supervision followed a felony conviction.
CP at 38. The jury convicted Howell as charged.
ANALYSIS
I. Vagueness Challenge
To be guilty of first degree escape, one must escape "while being detained pursuant to a conviction of a felony." RCW 9A.76.110(1). Howell contends this statute is unconstitutionally vague when applied to someone, like himself, who escapes from custody while being detained for allegedly violating felony community supervision conditions. While not addressing vagueness challenges, Divisions One and Three of this court have interpreted RCW 9A.76.110 to mean that detention for alleged violations of felony probation is detention pursuant to a felony conviction. State v. Walls, 106 Wn. App. at 797-98 (Div. Three); State v. Perencevic, 54 Wn. App. 585, 587-89, 774 P.2d 558 (1989) (Div. One). Contrary to his position at trial, Howell now relies on and asks us to adopt the dissent in Walls. Walls, 106 Wn. App. at 798-800 (Schultheis, J., dissenting).
"A person is guilty of escape in the first degree if he or she knowingly escapes from custody or a detention facility while being detained pursuant to a conviction of a felony or an equivalent juvenile offense." RCW 9A.76.110(1).
Like the Walls majority, J. Schultheis simply interpreted the statute; he did not resolve a constitutional vagueness challenge. Howell frames his argument as a constitutional challenge, presumably because he raises it for the first time on appeal. See RAP 2.5(a).
The first degree escape statute does not restrict First Amendment rights, so we must decide whether it is vague when applied to Howell's actions, not on its face. State v. Sullivan, 143 Wn.2d 162, 183, 19 P.3d 1012 (2001); State v. Russell, 69 Wn. App. 237, 245, 848 P.2d 743 (1993). "A statute is unconstitutionally vague if either: '(1) . . . [it] does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2) . . . [it] does not provide ascertainable standards of guilt to protect against arbitrary enforcement.'" Russell, 69 Wn. App. at 245 (quoting Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).
If our appellate courts have previously construed or interpreted the challenged statute, we must decide the vagueness claim using that interpretation, as if the court's explanation were part of the statute. Wainwright v. Stone, 414 U.S. 21, 22-23, 94 S. Ct. 190, 38 L. Ed. 2d 179 (1973); see State v. Groom, 133 Wn.2d 679, 692, 947 P.2d 240 (1997); State v. Richmond, 102 Wn.2d 242, 245, 683 P.2d 1093 (1984). Perencevic and Walls explain that the challenged language forbids escape when one has been arrested for allegedly violating felony community supervision conditions. We read the statute as if the legislature had so amended it. See Wainwright, 414 U.S. at 23; Groom, 133 Wn.2d at 692. Whatever merit Howell's vagueness challenge may have had before Perencevic and Walls construed the statute, it has no merit now. As applied to Howell, the challenged statute is not unconstitutionally vague; it forbids precisely Howell's conduct.
Wainwright explains that the interpretation of the highest state court binds a federal court considering a vagueness challenge to a state statute. Wainwright, 414 U.S. at 22-23. The Washington State Supreme Court, this state's highest court, apparently has not decided whether the challenged statutory phrase forbids escape when detained for allegedly violating felony probation. However, the state supreme court denied review in Perencevic, 113 Wn.2d 1017 (1989), and other courts have adopted Perencevic's interpretation when construing similar language governing when prior felonies "wash out" of an offender score. E.g., In re Pers. Restraint of Higgins, 120 Wn. App. 159, 163, 83 P.3d 1054 (2004). When the intermediate appellate court interpretation is the settled law of the state, we use that interpretation when evaluating the challenged statute. See Kolender v. Lawson, 461 U.S. 352, 357 n. 4, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983).
We need not decide whether Perencevic and Walls correctly interpreted the statute to decide Howell's constitutional vagueness claim, his only challenge to the statute. Because of the consistent appellate interpretation, the statute clearly forbids Howell's conduct, and it is therefore not unconstitutionally vague as applied.
II. Sufficiency of the Evidence
Howell next contends the jury received insufficient evidence to find him guilty beyond a reasonable doubt. Specifically, he contends the jury could not find he escaped or was ever in custody because no eyewitness testified how he escaped from the cage car.
Evidence is sufficient when a rational trier of fact, viewing the evidence in the light most favorable to the state, could find the State had proved the element beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When a defendant claims insufficient evidence, we "must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000). Significantly, circumstantial evidence is as reliable as direct eyewitness evidence. Fiser, 99 Wn. App. at 718.
Two CCOs testified that Thompson arrested Howell, handcuffed him, and put him in the back seat of the cage car. Thompson testified that he inadvertently left the doors unlocked from the outside, meaning that anyone could have released Howell. Howell disappeared from the car while the CCOs were not looking. He did not subsequently surrender but was arrested two weeks later. Viewing this evidence and the reasonable inferences from the circumstances in the light most favorable to the State, a rational jury could find beyond a reasonable doubt that Howell escaped from custody.
Howell asked the jury to believe his testimony that he fled out the window before his CCO could arrest him because the State could not prove how he escaped from the cage car. The jury resolved this factual issue against him. It heard sufficient evidence to do so, and we defer to its finding.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
BRIDGEWATER, P.J.
QUINN-BRINTNALL, J.