Opinion
No. 52607-3-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-05005-5. Judgment or order under review. Date filed: 06/13/2003. Judge signing: Hon. Jeffrey M Ramsdell.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St. Seattle, WA 98122.
Counsel for Respondent(s), Jessica Morgan Berliner, Attorney at Law, W554 King Co Cths, 516 3rd Ave, Seattle, WA 98104-2385.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Nathan Jon Severin challenges his conviction of felony harassment, contending that the evidence was insufficient to support the bench trial finding that the person threatened actually feared Severin's threat to kill. But the court could reasonably find the victim believed Severin might burn down the victim's house with the victim inside, thus causing his death. Severin also challenges his sentence. The State correctly concedes the record does not contain any comparison of Severin's out-of-state criminal history with Washington law. Accordingly, we affirm the conviction and remand for resentencing.
Ray Cross lives in a duplex with his 15-year-old son Michael. One afternoon Ray heard an altercation outside his house, where Michael and a friend had run to catch a bus. Ray went onto his back balcony from where he could see the bus stop. Michael told Ray that the defendant, Nathan Severin, was threatening them. Ray called the boys into his house.
Severin said the boys had beat him up. Ray told Severin to leave the boys alone. Severin walked into Ray's yard next to Ray and told him that Ray was the cause of all of his problems, that he knew where Ray lived, would kill him, and would burn down his house. Ray called the police, who arrested Severin.
The State charged Severin with one count of felony harassment. Severin waived his right to a jury trial. The State's witnesses at the bench trial were Ray and the arresting officer. Severin testified in his defense that he never threatened Ray and that the incident was the boys' fault. The court found Severin guilty and imposed a standard range sentence. On appeal, Severin first challenges the sufficiency of the evidence that Ray actually feared that Severin might carry out the threat to kill. To prove felony harassment, the State was required to prove that Severin threatened to kill Ray and Ray was placed in the reasonable fear that the threat to kill would be carried out. To review Severin's challenge we assume the truth of the State's evidence and draw all reasonable inferences from the evidence in the State's favor.
State v. C.G., 150 Wn.2d 604, 607, 80 P.3d 594 (2003); RCW 9A.46.020.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Ray testified that Severin said, "I know where you live at, I'll kill you, I'll burn your house down." Severin was acting as if he were delusional or hallucinating, a condition Ray had seen him in before. Although Ray testified at some length about his emotional reactions, including fear, to Severin's threats, Severin contends that because Ray never testified in so many words that he was afraid that Severin would actually kill him, the State's evidence was insufficient.
But Ray repeatedly testified that he was concerned that Severin would carry out his threat to burn down his house. He was concerned that on previous occasions when the police had arrested Severin he had been released the next day and thus if that happened again "he could have come back and burned my house down." Ray also testified that he was concerned about the vulnerability of his house to such an attack at night:
So, when he said that he would burn my house down, he was standing right next to my son's bedroom window, when anyone can walk up in my back yard in nighttime without being visible to my son's back window. Anybody can come to the back of my house. And, if you wanted to do it, he could have done it. You know, no one ever would have seen him. So, that's why I was concerned and called the police, when he said he would burn my house down.
The police officer testified that Ray frantically flagged him down and appeared nervous or afraid, breathing heavily and moving back and forth with very wide eyes and a loud voice. Ray told the officer "I'm afraid that he might really try to burn down my house or injure me or my son." The officer also testified that Severin was combative, shouted that Ray and Michael would go to hell, appeared to be under the influence of something and exuded a strong odor of gasoline. And Severin himself testified that he inhaled gasoline fumes, which could make him act like he was crazy, though he denied doing so that day.
"[T]he nature of a threat depends on all the facts and circumstances, and it is not proper to limit the inquiry to a literal translation of the words spoken." Although Severin segregates the threat to kill from the threat to burn down Ray's house, in its findings the trial court viewed Severin's words in context as a threat to "kill [Ray] by lighting a fire. . . ."
C.G., 150 Wn.2d at 611.
The trial court's written bench trial findings expressly incorporated the court's oral findings.
We defer to the trier of fact, "who resolves conflicting testimony, evaluates the credibility of witnesses, and generally weighs the persuasiveness of the evidence." The court's view was reasonable. A person can be simultaneously concerned for their life and their property. Burning Ray's house down was the one specific means Severin threatened that could accomplish his more general threat to kill. This case is therefore unlike State v. C.G., which Severin cites, in which a school's vice principal testified only to a vague fear of being harmed in the future by a student that threatened to kill him.
State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
A rational trier of fact could have found the elements of the offense proved beyond a reasonable doubt. Likewise, substantial evidence supported the court's finding that at the time of the incident Ray was afraid that Severin would carry out his threat, which in turn supported the resulting conclusion of law that Severin was guilty of felony harassment.
Finding of Fact I, D. ("Mr. Cross was afraid at the time of the incident and was concerned that the defendant would carry out his threats based on his behavior on that day and because of his previous interactions with the defendant.").
Severin also challenges his sentence, contending the court included out-of-state convictions in his offender score without making the required comparison of those offenses with Washington law. The State correctly concedes error. Neither party addressed the inclusion of those offenses at or before sentencing. Severin therefore did not waive the issue by acknowledging, either explicitly or implicitly, that the offenses were properly included in his offender score.
State v. Ford, 137 Wn.2d 472, 477-78, 973 P.2d 452 (1999).
See Ford, 137 Wn.2d at 483 n. 5; State v. Hunter, 116 Wn. App. 300, 65 P.3d 371, review granted, Wn.2d 79 P.3d 446 (2003).
We affirm the conviction and remand for resentencing.
SCHINDLER and BECKER, JJ., concur.