Opinion
42670-6-II
02-12-2013
STATE OF WASHINGTON, Respondent. v. T.L.W.-C., Appellant.
UNPUBLISHED OPINION
Hunt, J.
TLW-C appeals the juvenile court's determination that she willfully violated a term of community supervision that prohibited her from having any contact with her burglary victims. Holding that substantial evidence supports the juvenile court's determination, we affirm.
It is appropriate to provide some confidentiality in this case. Accordingly, it is hereby ordered that initials will be used in the case caption and in the body of the opinion to identify the parties and other juveniles involved.
FACTS
Based on TLW-C's admission to having participated in burglarizing the home of AD and her stepmother, SD, the juvenile court adjudicated TLW-C guilty of conspiring to commit residential burglary. As one of her community supervision terms, the court ordered TLW-C not to contact, either directly or through a "3rd party or internet or any electronic device, " her victims, AD and SD; her victims' "residence"; other "occupants" of her victims' residence; or her victims' "famil[ies]." Clerk's Papers at 15, 21. This order took effect on June 2, 2011.
On July 16, 2011, JV told his stepmother/AD's mother, RV, that TLW-C was using Jordyn Bonell to contact him (JV) by text message; Bonell's text message stated, "[I]t's [TLW-C] that wants to talk to you, " and "[TLW-C] wanted me to text you." Report of Proceedings (RP) at 20, 22, 32. A week later, on July 23, RV overheard a telephone call from AD's former boyfriend Riley Hammond to AD, in which Hammond accused AD of "set[ting] the [burglary] defendants up." RP at 21. On August 4, AD told RV that she had heard TLW-C's voice on Hammond's telephone, which she had been using, when she texted that she had Hammond's telephone and answered an incoming call from TLW-C. RV reported these community supervision violations.
On September 27, the juvenile court held a hearing to determine whether TLW-C had contacted AD, SD, or used third parties in an attempt to contact either AD or SD. AD's mother, RV, testified that (1) her daughter, AD, told her that TLW-C had contacted her; (2) she (RV) had observed Hammond's Facebook postings that mentioned AD and TLW-C; and (3) Hammond had told her (RV) that he was in contact with TLW-C and Bonell, who "were saying [AD] set the defendants up." RP at 21.
AD testified about the details of the August 4 telephone call: She had picked up Hammond's telephone and said, "[H]ello"; TLW-C had responded, "I miss you, [AD]." RP at 25. AD then received a text message from TLW-C stating, "[AD], I don't hate you, I actually miss you"; AD confirmed that this text message was the only direct contact she had received from TLW-C. RP at 25, 26. AD added that she had indirect contact with TLW-C, but the verbatim report of proceedings characterizes most of her direct testimony about this indirect contact as "inaudible." RP at 25-29. On cross-examination, AD testified that she had also received a text from "Janie, " asserting that she had "set up" TLW-C. RP at 30.
Bonell testified and denied having sent any texts on TLW-C's behalf to AD's stepbrother JV. The verbatim report of proceedings also characterizes the remainder of Bonell's direct testimony as "inaudible." RP at 34-36. On cross-examination, Bonell testified that TLW-C never asked her to contact AD or her family. Bonell's friend Janie Dowd testified that she (Dowd) "hardly knew" AD, but she did know TLW-C. RP at 41. Dowd acknowledged that she had exchanged text messages with AD because she (AD) "wouldn't leave this guy [Zach] alone." RP at 42. She denied that TLW-C had asked her to contact AD or any member of AD's family.
Albert Robinett also testified about the July 23 telephone call, which he said he had made before he ever met TLW-C. Robinett testified that he had called AD's phone from Hammond's phone and had said to AD, "I heard that you have gotten people in trouble before, set them up." RP at 40.
TLW-C testified and denied having asked Robinett to contact AD. TLW-C also denied having asked anyone to contact AD via Facebook. She acknowledged that she had contacted Hammond by telephone on August 4 to ask him to stop calling her, but she stated she did not speak with AD. The juvenile court determined both that TLW-C had directly contacted AD and that TLW-C had been involved with the third-party contact with AD through Facebook postings and text messages. TLW-C appeals.
A commissioner of this court initially considered this appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges.
ANALYSIS
TLW-C argues that she carried her burden to show that the violations of her community supervision terms were not willful. She argues that (1) the telephone contact between TC and AD was accidental because AD had been using Hammond's phone; and (2) the State failed to show that the third-party contacts were made at her (TLW-C's) request. This argument fails.
The State has the burden of proving a probation violation by a preponderance of the evidence and the juvenile has the burden of proving that the violation was not willful. RCW 13.40.200(2). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). We review under the clearly erroneous standard the juvenile court's factual finding that TLW-C failed to demonstrate that her violations were not willful. See State v. Campbell, 84 Wn.App. 596, 601-02, 929 P.2d 1175 (1997). Thus, we "reverse the trial court's findings only if no substantial evidence supports its conclusion." State v. Grewe, 117 Wn.2d 211, 218, 813 P.2d 1238 (1991).
The juvenile court stated it did not believe that these third-party contacts were coincidental.
Here, substantial evidence supports the juvenile court's conclusion that TLW-C willfully contacted AD directly: AD testified that on July 23, 2011, TLW-C not only spoke with her on Hammond's telephone but also followed up the conversation with a text message to her. Thus, even assuming, as TLW-C argues, that this July 23 telephone conversation was an accident, she does not explain how her text message was also an accident. TLW-C's text message to AD alone constituted a violation of TLW-C's community supervision terms. Nevertheless, Bonell's July 16 text message to AD also constitutes substantial evidence that TLW-C instigated third-party contact with AD when Bonell mentioned that TLW-C wanted her (Bonell) to text AD.
Accordingly, we hold that the State met its burden of proving TLW-C's community supervision violation by a preponderance of the evidence, TLW-C failed to meet her burden of proving that the violation was not willful, and substantial evidence supports the juvenile court's determination that TLW-C committed willful violations of the community supervision term barring her from contacting her victim AD or AD's family. We affirm.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Johanson, A.C.J., Penoyar, J.