State Of Wash. v. Kintz
| Decision Date | 26 August 2010 |
| Docket Number | Nos. 81688-3, 81689-1.,s. 81688-3, 81689-1. |
| Citation | 238 P.3d 470,169 Wash.2d 537 |
| Parties | STATE of Washington, Respondent, v. Clarence Andrew KINTZ, aka Chuck Kintz, Petitioner. State of Washington, Respondent, v. Clarence Andrew Kintz, aka Chuck Kintz, Petitioner. |
| Court | Washington Supreme Court |
169 Wash.2d 537
238 P.3d 470
STATE of Washington, Respondent,
v.
Clarence Andrew KINTZ, aka Chuck Kintz, Petitioner.
State of Washington, Respondent,
v.
Clarence Andrew Kintz, aka Chuck Kintz, Petitioner.
Nos. 81688-3, 81689-1.
Supreme Court of Washington,En Banc.
Argued Oct. 27, 2009.
Decided Aug. 26, 2010.
Thomas Matthew Dunn, Law Offices of Michael K. Tasker, Bellingham, WA, for Petitioner.
Eric John Richey, Hilary A. Thomas, Kimberly Anne Thulin, Whatcom County Prosecutor's Office, Philip James Buri, Buri Funston Mumford, P.L.L.C., Bellingham, WA, for Respondent.
ALEXANDER, J.
¶ 1 Clarence Kintz obtained review of a decision of the Court of Appeals affirming his convictions in Whatcom County Superior Court on two charges of stalking. Kintz contends that the Court of Appeals erred by affirming the trial court's interpretation of the term “separate occasions,” which appears in the stalking statute, RCW 9A.46.110. He also contends that the Court of Appeals incorrectly determined that sufficient evidence was presented at trial to support his convictions. We affirm the Court of Appeals.
¶ 2 On December 21, 2005, Theresa Westfall was walking with her three children and two dogs in Bellingham's Lake Padden Park. As Westfall and her group (hereinafter referred to as Westfall) walked by a white van in a parking lot, the driver said something to Theresa Westfall about “parking.” Verbatim Report of Proceedings (VRP) (June 28, 2006) at 215, 227, 231. Westfall then walked down a trail that eventually connected with a road. When Westfall came out
to the road, the white van approached them slowly from behind and then drove by and out of sight. At that point, Theresa Westfall became frightened.
¶ 3 The white van reappeared and this time crept slowly past Westfall. The van then turned around and made a third pass by Westfall. A short while later the van again drove slowly by Westfall. The van then pulled into a parking lot, backed up, and drove by Westfall a fifth time. By this time, according to Theresa Westfall, she was “very scared and angry.” Id. at 221.
¶ 4 After the van made its fifth pass, it came to a stop at a stop sign. Despite the fact that there was little traffic, the van remained at the stop sign until Westfall crossed the street in front of the van. After Westfall finished crossing the street, the van remained at the stop sign. This caused Theresa Westfall to call 911. The van then drove by Westfall a final time. Westfall did not see the van again.
¶ 5 During the passes and during the time the van was at the stop sign, the driver of the van did not say anything to Westfall. Theresa Westfall testified that she did not look at the person driving the van and, when asked at trial if she could identify Kintz as the driver of the van, she was unable to do so.
¶ 6 Two officers from the Bellingham Police Department responded to Theresa Westfall's 911 call. The officers stopped a white van near Lake Padden approximately 20 minutes after they were dispatched. Kintz, who was driving the van, told the officers that he was lost and was looking for a friend's house. He also stated that he had come to the park after having an argument with his wife.
¶ 7 On January 28, 2006, Jennifer Gudaz was jogging on the shoulder of a road that abutted Lake Samish, near Bellingham. As Gudaz headed north on the road, she noticed a white van, driving south, go past her. The driver of
the van made no contact with Gudaz and, consequently, at that time she was unconcerned.
¶ 8 Later the same van, now driving north, came up next to Gudaz and stopped. The driver of the van asked Gudaz if she could provide directions to an address. After he gave her an address, Gudaz indicated that
she could not help him. Gudaz testified that she “was a little bit nervous” at this time and “didn't feel comfortable.” Id. at 85,
¶ 9 Gudaz, who had continued running, later saw the van moving down a driveway. Gudaz indicated that she “felt a little more comfortable at that point” because she thought the driver “had found where he was going.” Id. at 86-87. However, the van subsequently drove by Gudaz and stopped in front of her. The driver, at this point, again asked Gudaz for directions telling her that he did not know where he wanted to go. He later asked Gudaz how to get to the freeway. The driver also tried to hand Gudaz a clipboard, saying that he wanted her to draw him a map. Gudaz drew the requested map, gave the driver directions, and started jogging again as the van left. Gudaz said that by this time she was “pretty frustrated” and “pretty scared.” Id. at 113.
¶ 10 Gudaz later saw the van on the side of the road and ran past it. Shortly thereafter the van pulled up next to her again. It then crossed into the oncoming lane, faced the wrong way, and came within one foot of Gudaz. The driver said, “ ‘Do you need a ride?’ ” Id. at 91. Gudaz answered, “[N]o.” Id. The driver then asked, “ ‘You don't need money?’ ” Id. Gudaz responded by pointing up the road, saying, “ ‘No. Maybe your road is up there.’ ” Id. She then started running again. The van continued traveling in the same direction as Gudaz until it left her sight.
¶ 11 Gudaz, frightened by what she had experienced, ran down a road toward Lake Samish and hid between a fence and a shed for approximately 10 to 15 minutes. She said that by this time she was “really scared” and “a mess.” Id. at 93. When Gudaz saw two bicyclists picking berries, she came out from her hiding place and ran toward them. The bicyclists accompanied Gudaz to a nearby county park.
¶ 12 On their way to the park, Gudaz and the bicyclists saw the van coming toward them. They observed it travelling slowly as it rounded a corner and then increase speed as it drove quickly past Gudaz and the bicyclists. Gudaz testified that she was “freaked out” after the van drove by. Id. at 95. She had no further contact with the van or its driver. When Gudaz and the bicyclists reached the county park, Gudaz called 911. The entire incident, according to Gudaz, took place in approximately one hour or less.
¶ 13 Gudaz reported the van's license plate number to the Whatcom County Sheriff's Department. The van was registered to Clarence Kintz's wife, Mary Kintz. About a week after the incident, Clarence Kintz told a deputy from the sheriff's department that he initially contacted Gudaz on the morning of January 28 because he was lost and that after driving around the lake, he had asked her for directions. Kintz denied offering Gudaz a ride or money.
¶ 14 Kintz was charged in Whatcom County Superior Court with two counts of misdemeanor stalking under separate informations. 1 See Clerk's Papers (CP) at 103-04; see State v. Kintz, Whatcom County Super. Ct. J. & Sentence Cause No. 06-1-00324-4 (Aug. 9, 2006). One information related to the Westfall incident and the other related to the Gudaz incident.
¶ 15 At the conclusion of the trial, the jury was instructed in part that one element of the charge relating to the Westfall incident was that Kintz “intentionally and repeatedly harassed or repeatedly followed Theresa Westfall” and that one element of the charge arising from the Gudaz incident was that Kintz “intentionally and repeatedly harassed or repeatedly followed Jennifer Gudaz.” CP at 46, 47.
Although the jury found Kintz guilty of each count “of the crime of stalking as charged,” it was not asked to specify whether it found Kintz had stalked Westfall and Gudaz by intentional and repeated harassment or by repeated following. 2 CP at 22.
¶ 16 Kintz appealed his convictions to Division One of the Court of Appeals. He raised several claims there, including insufficiency of the evidence. State v. Kintz, 144 Wash.App. 515, 521-23, 191 P.3d 62 (2008). 3 The Court of Appeals concluded that “[w]hether the evidence is sufficient turns on the legal meaning of ‘separate occasion.’ ” Id. at 521-22, 191 P.3d 62. It affirmed both convictions, holding in part that the trial court did not err (1) “in interpreting the repeated contact provision of the statute” or (2) “in finding that sufficient evidence supported a conclusion that Kintz had contact with the victims on separate occasions as contemplated by the statute.” Id. at 523, 191 P.3d 62. The Court of Appeals did not specify whether the separate occasions involving Kintz and his victims were intentional and repeated harassment or repeated following.
¶ 17 Kintz petitioned our court for review of the published portion of the Court of Appeals decision, including “the Court of Appeals['] holding regarding the definition of ‘separate occasion,’ and whether there were sufficient evidence herein to support the element of ‘repeated’ following or harassment.” Appellant's Pet. for Discretionary Review
at 5. 4 We granted review and consolidated the cases. State v. Kintz, 165 Wash.2d 1011, 1012, 198 P.3d 513 (2008).
¶ 18 Kintz first asserts that the Court of Appeals erred by affirming the trial court's interpretation of the term “separate occasions,” which is contained in RCW 9A.46.110, the stalking statute. “Interpretation of a statute is a question of law that we review de novo.” State v. Engel, 166 Wash.2d 572, 576, 210 P.3d 1007 (2009) (citing State v. Wentz, 149 Wash.2d 342, 346, 68 P.3d 282 (2003)).
¶ 19 The stalking statute provides in relevant part:
(1) A person commits the crime of stalking if, without lawful authority and under circumstances not amounting to a felony attempt of another crime:
(a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and
(b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The feeling of fear must be one that a reasonable person in...
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