Opinion
No. 62416-4-I.
September 21, 2009.
Appeal from the Superior Court, King County, No. 07-1-07587-5, Julie A. Spector, J., entered September 2, 2008.
Affirmed by unpublished opinion per Grosse, J., concurred in by Dwyer, A.C.J., and Cox, J.
Malicious mischief requires a mens rea of malice. Such malice may be inferred from the actions of the defendant. Here, the defendant kicked out two windows in the back of a patrol car. The circumstances under which this occurred permitted the jury to infer malice. The trial court did not err by instructing the jury that it could make such an inference. The evidence here was sufficient to uphold the defendant's conviction for first degree malicious mischief. We affirm the trial court.
FACTS
Police responded to a 911 call concerning a disturbance outside a local restaurant. The dispatcher indicated that an intoxicated, shirtless man was swinging a weapon at people. Seattle Police Officer Michael Renner was the first officer to arrive on the scene. He testified that he saw Luciano Perez, who was shirtless, sitting on a concrete barrier. At Perez' feet was a feces-soiled tube sock filled with rocks. Officer Renner threw the sock away as it presented a biohazard. While investigating the incident, the police kept Perez sitting on the ground. The longer Perez was detained, the more uncooperative he became. Officer Renner denied bullying, mistreating, or mocking Perez.
Officer Marie Gochnour testified that she and her partner, Officer McDougald spoke with Perez, who gave off a strong odor of intoxicants, had bloodshot eyes and difficulty standing. The police arrested Perez for intimidating people with a weapon and placed him in the patrol car to transport him to the police precinct.
When the patrol car was within three to four blocks of the precinct, Perez started to kick the patrol car windows. Officer McDougald pulled the patrol car over to the side of the road and Officer Gochnour got out of the car, opened the patrol car door nearest Perez, and told him to stop kicking the window or she would pepper spray him. Perez looked at her and kicked the window again. Officer Gochnour pepper sprayed him. When the patrol car pulled into the precinct, Perez began to kick the windows again. The driver's side back window shattered. The officers called for assistance. As other officers responded, Perez kicked out the passenger side back window, scattering glass over Officer Gochnour. Perez was removed from the car and the Seattle Fire Department treated him at the precinct for exposure to pepper spray.
Perez testified on his own behalf. Perez characterized his condition as "tipsy" rather than intoxicated. He claimed that he had the sock to defend himself from a friend who threatened him with a cue stick. Perez denied threatening anyone else. Perez testified that the restaurant owner did not want to press any charges and that this angered the police officers. Perez asserted that the police assaulted him while uttering racial slurs. Perez testified that the police pepper sprayed him while he was sitting on the ground before he was placed in the patrol car. Perez said he had trouble breathing when all the officers were piled on top of him during the incident.
This pain and his breathing difficulties were Perez' defense to kicking out the windows. He only remembered kicking out one window. Perez testified that he was angry and in pain and that he wanted a little air and to ask for help. A jury convicted Perez of first degree malicious mischief. Perez appeals.
ANALYSIS
Perez contends the evidence was insufficient to support his conviction for first degree malicious mischief. He argues that the State failed to prove that he acted with malice. We disagree.
A person commits first degree malicious mischief if he or she knowingly and maliciously causes physical damage to the property of another in an amount exceeding $1,500. The parties stipulated that the amount of damage was $1,613. Perez argues that the State failed to prove he acted with malice because there was no evidence of any ill will. "Malice" is defined as "an evil intent, wish, or design to vex, annoy, or injure another person." But malice may be inferred "from an act done in willful disregard of the rights of another or an act wrongfully done without just cause or excuse."
Malice does not require a showing of specific intent. Here, Perez testified on his own behalf. He asserted that he was beaten, clubbed, and pepper sprayed numerous times, and that he only kicked and shattered one window to obtain air. The testimony of the police officers directly contradicted Perez' testimony. The credibility of witnesses is a matter for the trier of fact, in this case, the jury. We defer to the fact finder's determinations regarding credibility as to the persuasiveness of the evidence, and its resolution of conflicting testimony. Viewed in the light most favorable to the State, the evidence was sufficient to support a finding of malice for purposes of malicious mischief.
See State v. Nelson, 17 Wn. App. 66, 69-72, 561 P.2d 1093 (1977) (for purposes of arson, malice does not require evidence of personal ill will toward the owner of the damaged property).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 1970 (2004).
See State v. Mahoney, 80 Wn. App. 495, 499, 909 P.2d 949 (1996) (evidence of removal of vehicle's rear window and taking of stereo sufficient to support conviction for theft and malicious mischief).
Perez next contends the trial court erred in instructing the jury that "[m]alice may be, but is not required to be, inferred from an act done in willful disregard of the rights of another." But an essentially identical instruction was expressly approved in State v. Ratliff, in which the defendant was convicted of second degree malicious mischief for breaking the interior window of a police van and then damaging the radio.
11 Washington Practice: Washington Pattern Jury Instruction: Criminal 2.13, at 59 (3d ed. 2008) (WPIC).
46 Wn. App. 325, 730 P.2d 716 (1986); WPIC 2.13.
Perez' reliance on State v. Johnson and City of Bellevue v. Kinsman is misplaced. As this court noted in Ratliff, both decisions applied a standard requiring the inferred fact to follow from the proven fact "beyond a reasonable doubt." The proper test for permissive inferences was subsequently deemed to require a "more likely than not" standard. Under the facts of his case, there is a rational connection between the proven fact and the inference of malice. Perez admitted smashing in one window and that he was angry when he did so.
23 Wn. App. 605, 596 P.2d 1047 (1979).
34 Wn. App. 786, 664 P.2d 1253 (1983).
Ratliff, 46 Wn. App. at 331 n. 6.
Ratliff, 46 Wn. App. at 331 (citing State v. Johnson, 100 Wn.2d 607, 616, 674 P.2d 145 (1983), overruled in part on other grounds by State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985)); see also County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 167, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979).
The trial court is affirmed.
WE CONCUR.