Opinion
No. 57141-9-I.
March 19, 2007.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-1-00600-8, Steven J. Mura, J., entered September 27, 2005.
Counsel for Appellant(s), Christopher Gibson, Nielsen Broman Koch PLLC, Seattle, WA.
Counsel for Respondent(s), Eric John Richey, Whatcom County Courthouse, Bellingham, WA.
Carl A Munson Jr., Law Office of Carl A Munson, Bellingham, WA.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Grosse, J., concurred in by Coleman and Dwyer, JJ.
Where the State charges a defendant with intimidating a witness, and where there is no pending prosecution or investigation at the time of the intimidation, failure to include in the charge that portion of the statute that includes intimidating a witness to not report a crime, is fatal to a conviction under that statute. The alternative means of committing intimidating a witness each require that there be a pending prosecution or proceeding. In the instant case, at the time the threats were uttered, there was no pending prosecution or proceeding. The State's failure to correctly charge James Marlow with the appropriate section of the statute is fatal to the conviction.
RCW 9A.72.110(1) states:
A person is guilty of intimidating a witness if a person, by use of a threat against a current or prospective witness, attempts to:
. . . .
(d) Induce that person not to report the information relevant to a criminal investigation. . . .
Pro se, Marlow submits a statement of additional grounds averring several errors, none of which have any merit. We reverse the judgment and sentence for the count of intimidating a witness and affirm the convictions for rape in the first degree, kidnapping in the first degree, felony harassment and assault in the fourth degree.
FACTS
Rubey Erickson met James Marlow on April 19, 2005, while looking for her friend, Michael DiGiorgio. Marlow told her that he was camping with DiGiorgio. Erickson and Marlow purchased some beer and headed to the camp to see DiGiorgio. The three began drinking.
Erickson testified that Marlow became intoxicated and said he was going to "fuck" her and called her a "bitch." Erickson said Marlow dragged her into the tent where he raped her vaginally and anally. Marlow also threatened to kill her while he was raping her. While this was happening, DiGiorgio ran to a convenience store which was about a half mile away and called 911 reporting the assault and rape. Erickson testified that when Marlow was finished raping her, he told her to get dressed. He then grabbed her by the hair and forced her up the trail. Erickson testified that Marlow "kept threatening to kill [her] and [her] family." Erickson testified that Marlow threatened to kill her "[b]ecause he didn't want to go to jail. He didn't want to get caught for his crimes." He told her not to tell anyone or he would kill her and bury her in the campsite. Erickson was afraid to testify. To ensure her appearance at the trial, she was arrested and spent the night in jail before testifying.
In addition to the other charges, Marlow was charged with intimidating a witness. However, the prosecution's charging document did not comport with the entire statute. The defense objected to the instruction which included those portions. The trial court denied the State's motion to amend the information to include subsection (d) of the statute. The defense then moved to dismiss that count. The court denied the defense motion to dismiss but directed the State to modify the instructions to comply with the actual charging document.
The State then noted that the instruction "does not conform with the evidence that's been presented." The trial court disagreed, ruling:
No. It conforms. There's evidence to support it. She testified she was in fear she would be killed and would not come to court, and in fact she hid out from the police and they had to arrest her to bring her to court. If that's not inducing her to avoid the legal process or to absent herself from the proceedings. . . .
ANALYSIS
Marlow was charged with only the first three alternative means of intimidating a witness. RCW 9A.72.110 (1) provides:
Former RCW 9A.72.110(2) (1994), amended by Laws of 1994, ch. 271, §§ 204.
A person is guilty of intimidating a witness if a person, by use of a threat against a current or prospective witness, attempts to:
(a) Influence the testimony of that person;
(b) Induce that person to elude legal process summoning him or her to testify.
(c) Induce that person to absent himself or herself from such proceedings; or
(d) Induce that person not to report the information relevant to a criminal investigation or the abuse or neglect of a minor child, not to have the crime or the abuse or neglect of a minor child prosecuted, or not to give truthful or complete information relevant to a criminal investigation or the abuse or neglect of a minor child.
Failure of the prosecution to charge section (d) of the statute is fatal to a conviction. Section (d) of the statute was added to include situations where intimidation occurs that induces someone to not come forward in the event there is an investigation. Former RCW 9A.72.110(1)2 provided:
A person is guilty of intimidating a witness . . . if, by use of a threat directed to a current witness or a person he or she has reason to believe is about to be called as a witness in any official proceeding or to a person whom he or she has reason to believe may have information relevant to a criminal investigation . . . he or she attempts to:
(a) Influence the test\imony of that person;
(b) Induce that person to elude legal process summoning him or her to testify; or
(c) Induce that person to absent himself or herself from such proceedings[.]
In State v. Wiley, this court interpreted the former statute to require that either an official proceeding or a criminal investigation actually be pending at the time of threat to the witness. The legislature amended the statute adding subsection (d).
Wiley, 57 Wn. App. 533, 536-37, 789 P.2d 106 (1990); See also State v. Pella, 25 Wn. App. 795, 797, 612 P.2d 8 (1980) (no complaint had been filed at the time the threat was made).
Former RCW 9A.72.110(2).
Moreover, this court has held that "subsections (a) through (d) of RCW 9A.72.110 (1) describe the alternative means by which a defendant can commit the crime of intimidation of a witness." Where the State fails to elect which alternative means was utilized by the defendant and where there was no unanimity instruction, substantial evidence on each of the alternative means must be present to support a jury's verdict. There is no such evidence here.
State v. Boiko, 131 Wn. App. 595, 599, 128 P.3d 143 (2006); See also State v. Chino, 117 Wn. App. 531, 539, 72 P.3d 256 (2003) (also holding that RCW 9A.72.110(a) is an alternative means statute).
The State in its brief argues that the statute was never intended to require that a defendant have actual knowledge of an investigation pending and that therefore the fact that Erickson was intimidated is sufficient to prove the State's case. To support this position, the State relies on State v. Gill and State v. Scherck. Both Gill and Scherck are inapposite. In Gill, the defendant was already in jail when he wrote a threatening letter. The court held that the defendant's words used in the letter were sufficient to support a conviction on each of the alternative means of the statute also relied upon by the State.
Gill, 103 Wn. App. 435, 13 P.3d 646 (2000).
Scherck, 9 Wn. App. 792, 514 P.2d 1393 (1973).
In Scherck, the defendant asked the witness to drop the charges against his friend, urged him to refuse to appear and made a threat. In dismissing Scherck's argument that there was no proceeding at the time Scherck tampered with the witness, the court noted that a robbery charge was pending against the friend who was currently in jail.
There is no doubt that the threats Marlow made impacted the victim/witness. The problem is that the threats, like Boiko, cannot be used to sustain a conviction since there was no evidence supporting one or more of the alternative means of intimidating a witness. The State's failure to charge Marlow with subsection (d) of the statute is fatal to the conviction. Statement of Additional Grounds Intoxicated Witness.
Defense made a motion for new trial based upon the possibility that DiGiorgio was intoxicated. CrR 6.12 provides that persons are incompetent to testify if they are intoxicated at the time of their examination. Evidence was presented by the defense (after the fact) that the court reporter smelled an odor of alcohol on DiGiorgio when he was testifying for the State. The trial court ruled that this evidence at most indicated that DiGiorgio consumed alcohol before testifying in court. Neither counsel, nor the court, observed or reported any indication of intoxication during the testimony. The court held that DiGiorgio was not intoxicated. In fact, the court noted that DiGiorgio was one of the better witnesses that had been before the court. The court made findings of fact that DiGiorgio may have consumed alcohol prior to his testifying but that the court observed nothing that indicated that the witness was or may have been intoxicated while testifying. The trial judge has the best view of the demeanor of a witness. An appellate court will not subject its opinion for that of the trial judge.
The only record before the court is the verbatim report of proceedings.
Sufficiency of the Evidence
Marlow raises a plethora of additional grounds including a prejudiced judge (apparently for ruling that DiGiorgio was not intoxicated); ineffective assistance of counsel (apparently for not winning); clothing provided for him (the shoes, etc., did not fit appropriately) and the credibility of the witnesses. There is no evidence to support these bare allegations.
Marlow also contends insufficient evidence supported his conviction of rape, kidnapping, harassment and assault. Evidence is sufficient to support an adjudication of guilt if, when viewed in the light most favorable to the State, the evidence permits any rational fact finder to find the essential elements of the crime beyond a reasonable doubt. A defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences therefrom. We view both circumstantial and direct evidence as equally reliable. We do not review credibility determinations on appeal.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Salinas, 119 Wn.2d at 201.
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
In the instant case, the victim's testimony is supported by the testimony of another witness. Additionally, the police officers at the scene testified to the excited utterance statements made by the victim as she emerged from the woods with Marlow.
We affirm Marlow's convictions of rape in the first degree, kidnapping in the first degree, two counts of felony harassment and assault in the fourth degree. We reverse the conviction for intimidating a witness and remand for resentencing in accord with this decision.
WE CONCUR: