Opinion
No. 58158-9-I.
September 17, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-10175-6, Richard A. Jones, J., entered April 10, 2006.
Affirmed by unpublished per curiam opinion.
Under the same evidence test, second degree malicious mischief and second degree vehicle prowling are not the same offense in law or in fact. Moreover, all relevant circumstances indicate a legislative intent to authorize separate punishment for each offense. Consequently, Ronald Smith's convictions do not violate double jeopardy. We also reject Smith's claims of prosecutorial misconduct and evidentiary and instructional error. We therefore affirm.
Police officers arrested appellant Ronald Smith while investigating a reported car prowl. He was eventually charged with one count of second degree malicious mischief and one count of second degree vehicle prowling.
At trial, Jeffrey Loo testified that he was a private security guard at a Belltown condominium. During the early morning hours of June 19, 2005, Loo heard a "thud" in the alley behind the building and went to investigate. Loo saw a Ford Explorer in one of the alley parking spaces and noticed broken glass around the rear passenger window and nearby on the ground. Loo also saw two feet dangling outside of the broken window. As Loo watched from about 10 or 20 feet away, the person in the Explorer crawled toward the front seat and made a "pulling motion." Loo did not see the person get out of the Explorer, but a man approached Loo from the direction of the car and walked by with a jacket in one hand and a car stereo in the other. Loo identified the man, who was wearing a brown flannel shirt, brown boots, and tight blue jeans, as Smith. Loo saw no one else in the alley.
Loo radioed the man's description to his dispatcher, who called 911. Loo followed the man for a block or two toward Western Avenue, reporting his location to the dispatcher, and then returned to his post.
Seattle Police officers Diezsi and Lee responded to the reported break-in. After confirming that the Explorer had a broken window and missing stereo, the officers drove to the suspect's last reported location at First and Blanchard. Upon arriving, the officers saw a man standing on the corner who matched the suspect's description. When the officers asked the man to come over to the patrol car, he dropped the jacket and two stereos he was holding and fled. The officers pursued the man for several blocks before catching him. After a brief struggle, the officers were able to handcuff and arrest Smith, who was wearing a brown plaid shirt and tight blue jeans. In a search incident to the arrest, the officers removed a broken car stereo face plate from Smith's shirt pocket.
After arresting Smith, the officers returned to First and Blanchard and recovered the jacket and two car stereos that Smith had dropped. Jonathan Saad identified one of the recovered stereos as the one taken from his Explorer. In addition to the broken window, Saad testified that the dash had been pulled apart and wires ripped out when the stereo was removed. Because of the damage and missing face plate, Saad was unable to reinstall the stereo and had to purchase a new one. Saad paid $150 to $160 to replace the broken window and paid a total of $450 to $460 to repair the Explorer.
Smith testified that he had driven into Seattle on the evening of June 18, 2005, purchased a beer, and then walked around while he drank it. At some point, Smith walked into an alley in Belltown to urinate. When Smith encountered a security guard in the alley, he greeted him and attempted to conceal the beer. Smith eventually finished his beer and then visited a friend who worked at a club. After leaving the club, Smith was standing at the corner of First and Blanchard when he was accosted by Officer Lee, who patted him down and told him to come over to the patrol car. Because he had an outstanding warrant, Smith fled. As he crossed the street, Smith was hit by a car, but continued running. Smith denied breaking into the Explorer or having any items in his hand when the police stopped him.
The jury found Smith guilty as charged, and the court imposed concurrent standard-range terms.
DECISION
Smith first contends that his convictions for second degree malicious mischief and second degree vehicle prowling constituted multiple punishments for the same offense and therefore violated constitutional prohibitions against double jeopardy. He argues that the two offenses involved essentially a single act — entering the vehicle by means of a broken window — and that under the facts of this case, "proof of vehicle prowl by physically damaging the vehicle . . . will always establish malicious mischief." But conduct that violates more than one criminal statute does not necessarily constitute double jeopardy.
See State v. Freeman, 153 Wn.2d 765, 777, 108 P.3d 753 (2005) (rejecting "same conduct" test); United States v. Dixon, 509 U.S. 688, 704, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993).
Because the legislature has the power to define crimes and assign punishment, the determination of whether multiple convictions violate the prohibition against double jeopardy generally depends on whether "the legislature authorized cumulative punishments for the crimes at issue." In assessing legislative intent for purposes of double jeopardy, courts generally undertake a three-part analysis:
State v. Esparza, 135 Wn. App. 54, 59, 143 P.3d 612 (2006), pet. for review filed.
We first look at the statutory language to determine whether separate punishments are specifically authorized. If the language is silent, we apply the "same evidence" test to determine whether each offense has an element not contained in the other. If each offense contains a separate element, we then determine whether there is evidence of a legislative intent to treat the crimes as one offense for double jeopardy purposes.
In re Pers. Restraint of Burchfield, 111 Wn. App. 892, 895-96, 46 P.3d 840 (2002) (footnotes omitted) (citing State v. Calle, 125 Wn.2d 769, 776-79, 888 P.2d 155 (1995)).
The malicious mischief and vehicle prowling statutes do not contain express legislative statements authorizing multiple punishments. Accordingly, we apply the "same evidence" test, drawn from Blockburger v. United States, to determine whether the offenses, "as charged and proved, are the same in law and in fact." Under this test, if each offense requires proof of a fact not required by the other, and proof of one offense does not necessarily prove the other, the offenses are not the same, and "there is a strong presumption that the legislature intended separate punishment for each offense, even if they are committed by a single act."
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
Freeman, 153 Wn.2d at 777.
State v. Cole, 117 Wn. App. 870, 875, 73 P.3d 411 (2003).
Second degree malicious mischief requires proof that the defendant knowingly and maliciously caused physical damage to the property of another in an amount exceeding $250. A person commits second degree vehicle prowling by entering or remaining unlawfully in a vehicle with intent to commit a crime against a person or property therein. Because malicious mischief requires proof of property damage, a fact not required for vehicle prowling, and vehicle prowling requires proof of unlawful entry or remaining in a vehicle, an element not required by malicious mischief, Smith's offenses are not the same under the same evidence test.
Although the same evidence test is not dispositive, the resulting presumption can be overcome only by "clear evidence" of a contrary legislative intent. Smith makes no such showing here. Moreover, malicious mischief and vehicle prowling address separate and distinct evils. Malicious mischief addresses property damage, whereas vehicle prowling addresses the unlawful entry into vehicles, a concern that goes beyond mere property damage. These distinct concerns are underscored by the placement of these offenses in separate chapters of the code. Such circumstances provide additional evidence that the legislature intended to punish the offenses separately.
Calle, 125 Wn.2d at 780.
See id. (different purposes of statutes and placement in different chapters provide evidence of legislative intent to punish offenses separately).
Smith relies on several cases in which courts have found a double jeopardy violation even though the offenses were not the same under the same evidence test. But these cases are easily distinguished. In State v. Valentine, the court's determination that convictions for second degree assault and attempted murder violated double jeopardy was based on clear evidence that the legislature did not intend multiple punishments for the same assaultive act. Here, the evidence of legislative intent supports multiple punishments. In State v. Potter, the court found a double jeopardy violation under the specific facts of the case because reckless endangerment by means of an automobile would always establish reckless driving. But proof of vehicle prowling, even under the specific circumstances of this case, does not necessarily establish second degree malicious mischief. Potter provides no support for Smith's argument.
108 Wn. App. 24, 29, 29 P.3d 42 (2001).
31 Wn. App. 883, 888, 645 P.2d 60 (1982).
Smith next contends the evidence was insufficient to support his conviction for second degree malicious mischief. He argues the State failed to prove that he caused damages exceeding $250 or that he acted with malice.
A person commits second degree malicious mischief if he or she knowingly and maliciously causes physical damage to the property of another in an amount exceeding $250. For purpose of malicious mischief, the term "physical damage," in addition to its ordinary meaning, includes "any diminution in the value of any property as the consequence of an act." It is well established that the ordinary meaning of physical damage includes the reasonable cost of repairs to restore injured property to its former condition.
State v. Gilbert, 79 Wn. App. 383, 385, 902 P.2d 182 (1995) (citing State v. Ratliff, 46 Wn. App. 325, 328-29, 730 P.2d 716 (1986)).
Saad testified that he paid $150-$160 to replace the broken window in his Explorer. He also spent $300 to replace the stereo because it was too badly damaged to reinstall. Smith asserts the replacement cost of the stereo was not the result of malicious mischief but "a consequence of an uncharged theft," analogizing the situation to the theft of an uninstalled stereo from the seat of an unlocked car. But the circumstances in this case do not support such an analogy. Smith forcibly removed the stereo from the dashboard, physically damaging both the dashboard and the stereo. The evidence amply supports a determination that the damage exceeded $250.
Smith also argues the State failed to prove he acted with malice because there was no evidence that he bore any ill will toward Saad or that he acted with any criminal intent beyond that necessary to break into the car and commit vehicle prowling. "Malice" is defined as "an evil intent, wish, or design to vex, annoy, or injure another person." But by statute, 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." Smith's action in breaking the car window for the purpose of facilitating a theft clearly reflected a disdain for the rights of the car's owner.
Id.
The fact that Smith did not know Saad does not undermine the sufficiency of the evidence. Malice does not require a showing of specific intent. Nor has Smith cited any authority supporting his suggestion that malice must be the defendant's exclusive or primary intent in order to support a conviction for malicious mischief. 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, 70-72, 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).
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).
Smith next contends the trial court erred in instructing the jury that "Malice 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. In this case, Smith intentionally broke the car window to get inside and pulled the radio out of the dashboard. Smith's actions were analogous to those in Ratliff and supported the instruction.
Instruction 5.
46 Wn. App. 325; WPIC 2.13.
See Ratliff, 46 Wn. App. at 331.
Smith's 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 recognized to require a "more likely than not" standard.
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.
Id., citing State v. Johnson, 100 Wn.2d 607, 616, 674 P.2d 145 (1983), overruled in part on other grounds, State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985); see also County Court of Ulster County v. Allen, 442 U.S. 140, 167, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979).
Smith next contends the trial court committed reversible error by admitting evidence that he was holding two stereos when contacted by the police officers. Officer Diezsi testified that when Smith first saw the officers, he dropped two car stereos and a jacket and then fled. Officer Diezsi later returned and recovered the two stereos. One of the stereos belonged to Saad. Smith argues the evidence was irrelevant and unfairly prejudicial because it suggested that he had a general propensity for theft.
See ER 403.
Smith's argument on appeal fails even to identify the basis for the trial court's ruling admitting the evidence of the second stereo. Prior to trial, defense counsel informed the trial court that Smith would be claiming the police officers had "planted" the stereos on him. As the trial court noted in denying Smith's motion to exclude any reference to the second stereo, evidence that Smith was carrying multiple stereos tended to undermine the credibility of his claim that police officers had planted Saad's stereo on him. Moreover, there was no claim or argument that the second stereo had been stolen. Under the circumstances, we cannot say the trial court abused its discretion in admitting the evidence.
Finally, Smith contends the deputy prosecutor committed reversible misconduct during closing argument by falsely informing the jury that the victim had paid to have the Explorer's dashboard repaired. Smith argues the comment referred to facts not in evidence and exaggerated the extent of the damages.
This court reviews allegedly improper comments in the context of the total argument, the issues in the case, the evidence addressed in argument, and the instructions given to the jury. Moreover, because Smith did not object to the challenged comment, he has waived any error unless the misconduct was so flagrant and ill-intentioned that no curative instruction could have obviated the resulting prejudice.
State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
Saad initially testified that in addition to replacing the window and the stereo, he had also paid to repair the dashboard. But he later clarified that the damage to the dashboard was minor and was not repaired. During closing argument, when discussing whether the evidence supported the $250 damage requirement for second degree malicious mischief, the deputy prosecutor stated "And you heard Jonathan Saad tell you that he paid about $450 to have the damage repaired and to have the stereo replaced, the wires fixed, the dashboard fixed."
When the challenged comment is viewed in context, it is apparent that any potential prejudice from the alleged misconduct was minimal. The evidence was undisputed that Saad spent $450 to have his car repaired, and the deputy prosecutor did not attribute any particular amount of the repair costs to the dashboard. Under the circumstances, any potential prejudice arising from the brief reference could easily have been neutralized with a curative instruction.
We affirm the judgment and sentence.