Opinion
No. 36686-0-II.
March 24, 2009.
Appeal from a judgment of the Superior Court for Mason County, No. 07-1-00119-1, James B. Sawyer II, J., entered August 24, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Armstrong and Quinn-Brintnall, JJ.
UNPUBLISHED OPINION
Jacob Rivera appeals his first degree malicious mischief conviction, challenging the trial court's failure to give a proper intent instruction, claiming ineffective assistance for failing to propose a proper intent instruction, and claiming insufficient evidence of intent. Finding no such errors, we affirm.
facts
On January 17, 2007, Mason County Jail Corrections Officer Angela Langston observed Rivera speaking on the telephone in the dayroom of M-cell. A few minutes later, she heard yelling, looked up, and saw Rivera screaming and beating his fists on the sliding glass door leading into M-cell. She immediately called for an M-cell lockdown.
Corrections Officer Anita Watz was working in the booking area when she heard the yelling. When she reached the M-cell dayroom, she noticed debris on the floor and Rivera pounding on the sliding door. She also saw a television on the floor, which Rivera picked up and then, when he saw her, threw it to the side. She was able to get Rivera to calm down and moved him into holding cell H-6. She described Rivera as angry but she believed that his anger was not directed at the jail staff. She later helped move Rivera from H-6 after he tore apart the smoke detector and its protective cover in that cell.
Corrections Officer Sherman Cassidy also responded to the M-cell incident. When he arrived, Rivera was calmly speaking to the jailers. Cassidy saw a broken television set on the floor. He helped escort Rivera to H-6.
Fifteen to thirty minutes later, he heard that there was a problem in H-6. When he went there, he saw Rivera prying on the cell door with a screw. He also noticed that the smoke alarm and several screws were lying on the bunk bed. He then helped move Rivera to the F-cell (the calm down tank).
While monitoring F-cell using the camera and audio equipment, Cassidy saw Rivera, who was in leg restraints and handcuffs, jump up and strike the camera, shattering the protective cover. When Cassidy and the other officers responded, they saw that Rivera's hand was bleeding. Rivera told Cassidy, "[Y]ou might as well go ahead and chair me or I'm going to go off again." Report of Proceedings (RP) at 93. After a nurse checked Rivera, they medicated him, cleaned up the room, and placed him in a restraint chair. Cassidy estimated that he and the other staff spent about 15 minutes performing this task in F-cell.
Sergeant Sue Chaplin was not present during the altercation but was responsible for jail records. She testified that following Rivera's outburst, the inmates were required to return to their cells (a lockdown) and all services ceased in the jail until the matter was resolved and the room cleaned up. She also testified that the jail had to purchase a new television and television stand, that it had to close down H-6 for repairs, and that Rivera also damaged a camera cover in the F-cell after being removed from H-6. By August, when Rivera was on trial, the jail had not yet repaired the camera cover because it was unable to get the necessary parts. As a result, the jail could use the room only if the inmate was restrained.
The State charged Rivera with first degree malicious mischief. A jury found him guilty, and the sentencing court imposed a standard range, 39-month, sentence.
Analysis
I. Intent Instruction
Rivera first argues that the sentencing court erred in not giving the jury an intent instruction. We disagree. RCW 9A.48.070(1)(b) defines first degree malicious mischief:
(1) A person is guilty of malicious mischief in the first degree if he knowingly and maliciously:
. . . .
(b) Causes an interruption or impairment of service rendered to the public by physically damaging or tampering with an emergency vehicle or property of the state, a political subdivision thereof . . .
RCW 9A.48.070(1)(b). Rivera concedes that the trial court properly instructed the jury on the definitions of first degree malicious mischief, knowingly, and maliciously, and that it gave the appropriate WPIC to-convict instruction. Rivera argues, however, that the trial court did not instruct the jury that he had to intend to interrupt services not just intend to damage property resulting in an interruption in services. He argues that absent such an instruction, the jury could easily have been misled and convicted him merely because he knowingly and maliciously damaged property "that by happenstance caused an interruption in services." Appellant's Br. at 5.
Instruction 5 provided:
A person commits the crime of malicious mischief in the first degree when he or she knowingly and maliciously causes an interruption or impairment of service rendered to the public by physically damaging or tampering with property of the state, or a political subdivision thereof.
Clerk's Papers (CP) at 27.
Instruction 7 provided:
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.
CP 29.
Instruction 8 provided:
Malice and maliciously mean an evil intent, wish, or design to vex, annoy, or injure another person.
CP 30.
Instruction 6 provided:
To convict the defendant of the crime of malicious mischief in the first degree as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on about the 17th day of January, 2007, the defendant caused an interruption or impairment of service rendered to the public, by physically damaging or tampering with property of the state or a political subdivision thereof;
(2) That the defendant acted knowingly and maliciously; and
(3) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP 28.
In State v. Jury, 19 Wn. App. 256, 266-67, 576 P.2d 1302 (1978), we held that the trial court erred in giving a to-convict instruction requiring that the State prove only that the defendant knowingly and maliciously caused physical damage and that such damage caused an interruption or impairment of public services. The harm, we explained, was that it required the State to prove the scienter for third degree malicious mischief, not first degree, and thereby relieved the State of its proper burden of proof. Jury, 19 Wn. App. at 267.
Third degree malicious mischief requires the State to prove that the defendant "[k]nowingly and maliciously causes physical damage to the property of another, under circumstances not amounting to malicious mischief in the first or second degree." RCW 9A.48.090(1)(a).
Instructions are proper if, when read as a whole, they are readily understood, not misleading to the ordinary mind, and sufficiently clear. A further test is whether the instructions given allow counsel to satisfactorily argue his case theory to the jury. State v. Hardy, 44 Wn. App. 477, 480-81, 722 P.2d 872 (1986) (quoting State v. Dana, 73 Wn.2d 533, 439 P.2d 403 (1968)). As long as instructions inform the jury of all the elements of the crime charged, there is no constitutional error. State v. Scott, 110 Wn.2d 682, 690, 757 P.2d 492 (1988) (citing State v. Johnson, 100 Wn.2d 607, 623, 674 P.2d 145 (1983)).
As we noted above, the trial court's instructions defined "knowingly" and "maliciously" and used the phrase "knowingly and maliciously causes an interruption or impairment." Additionally, the to-convict instruction required that the defendant have "caused an interruption or impairment of services . . . by physically damaging . . . [and] [t]hat the defendant acted knowingly and maliciously." CP at 28; Instr. 6.
The trial court's to-convict instruction here did not have the same flaw as that in Jury, 19 Wn. App. at 267, where the to-convict instruction merely required the jury to find that the defendant "knowingly and maliciously cause[d] physical damage . . .":
To convict the defendant of the crime of Malicious Mischief in the First Degree charged in Count I of the Information herein, the State must prove to you beyond a reasonable doubt:
(1) That on or about July 17, 1976, the defendant did knowingly and maliciously cause physical damage or tamper with an emergency vehicle or property of the City of Centralia, Washington;
(2) That such damage or tampering caused an interruption or impairment of service rendered to the public. Jury, 19 Wn. App. at 267. As stated above, this instruction misstates the required scienter.
Here, the to-convict instruction required the jury to find that Rivera knowingly and maliciously caused an interruption or impairment of services by physically damaging County property. While the better practice may be to give the instruction Rivera now proposes, it was not necessary for the court to do so. The instructions properly informed the jury of the applicable law, allowed counsel to argue their case theories, and were neither confusing nor misleading.
II. Effective Assistance of Counsel
Rivera next argues that his counsel was ineffective for not proposing an instruction properly setting out the State's burden of proof as to the requisite intent.
The test for ineffective assistance of counsel has two parts. One, the defendant must show that defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness. Two, the defendant must show that such conduct caused actual prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
We disagree that Rivera's closing argument shows a need for an additional intent instruction. To the contrary, it shows that he was able to argue his case theory:
He was agitated not at the staff, not at the jail, but from whatever personal experience he had just had on the telephone. He didn't tear — he didn't cause damage to the County property in order to cause injury to the county or with the evil intent toward the county or with a design to vex, annoy, or injure another. It was strictly him venting his anger. . . .
. . . .
If it was directed towards the jail staff or directed to jail or the county, then it would be a different story and his conduct would have been different.
RP 116-17.
Because the trial court's instructions properly stated the law and allowed the parties to argue their case theories, Rivera's ineffective assistance claim fails. 3. Sufficiency of the Evidence
Rivera argues that the State failed to prove that he intended to cause an interruption or impairment of public service as is required under Jury. He acknowledges that he broke the television, the smoke detector, and the camera cover out of anger, but he argues that inferring intent to interrupt or impair public services requires an improper pyramiding of inferences. See State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999) (citing State v. Weaver, 60 Wn.2d 87, 89, 371 P.2d 1006 (1962)).
When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citations omitted). We defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992) (citations omitted).
Here, there was ample evidence from which the jury could infer that Rivera knowingly and maliciously interrupted jail services by physically damaging the facility. The record shows that when his telephone call ended, he was uncontrollably angry. He was yelling, beating on the door, and ripped the television and stand from the wall, destroying both. Once subdued and cooperative, he again took his anger out on the jail by removing and destroying a smoke detector and using the screws from it in an apparent attempt to open the cell door. After being moved to another cell, he destroyed a protective cover over a monitoring camera knowing that jail staffers were observing him. While he may not have had anger directed at jail staff, he certainly knew that by causing damage, he was interrupting the jail's daily services, requiring staff attention, and forcing other inmates into lockdown. From this evidence, a jury could easily conclude that Rivera acted knowingly, intentionally, and maliciously with the desire to interrupt and impair jail services.
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.
ARMSTRONG, J. and QUINN-BRINTNALL, J., concur.