State v. Briejer

• Citation: 289 P.3d 698
• Decision Date: 07 December 2012
• Docket Number: Nos. 40912–7–II, 42410–0–II.,s. 40912–7–II, 42410–0–II.
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Christopher Robin BRIEJER, Appellant.

289 P.3d 698

STATE of Washington, Respondent,

v.Christopher Robin BRIEJER, Appellant.

Nos. 40912–7–II, 42410–0–II.

Court of Appeals of Washington, Division 2.

Dec. 7, 2012.

Lance M. Hester, Attorney at Law, Tacoma, WA, for Appellant/Petitioner.

Susan Sackett Danpullo, Office of the Attorney General, Olympia, WA, Kathleen Proctor, Pierce County Prosecuting Atty. Ofc., Tacoma, WA, for Respondent.

VAN DEREN, J.

¶ 1 Christopher Robin Briejer appeals his jury convictions on 56 counts of first degree theft by color or aid of deception based on his receipt of benefits from the Washington State Department of Labor and Industries (L & I) for a back injury he maintained was related to a previously closed back injury claim. Briejer argues: (1) sufficient evidence does not support his conviction, (2) the trial court abused its discretion when it admitted testimony about his participation in mountain climbing and “extreme sports,” and (3) his counsel was ineffective for failing to move to dismiss at the close of the State's case. In his consolidated personal restraint petition (PRP), Briejer also argues that his counsel was ineffective for failing to move to exclude testimony of a biomechanics expert who testified regarding the effect of force on the human spine. We deny his PRP. But we agree with Briejer that the trial court's failure to exclude highly prejudicial testimony about his participation in mountain climbing and extreme sports was not harmless error. And because we also agree with Briejer that the State failed to present sufficient evidence to prove beyond a reasonable doubt that Briejer affirmatively deceived the State, we vacate his convictions and remand for dismissal with prejudice.

FACTS

¶ 2 On February 2, 2000, Briejer filed with L & I a claim for benefits for a work injury to his lower back. L & I accepted his claim of lumbar strain. In June 2000, after x-rays of Briejer's back showed he had returned to “normal,” it closed his claim. Report of Proceedings (RP) (June 7, 2010) at 51.

¶ 3 On January 13, 2004, Briejer asked L & I to reopen his February 2000 claim based on pain in his lower back and left leg. Briejer stated that his 2000 condition had not worsened due to another injury or accident, but he also stated that he had suffered “ankle and wrist problems” since his claim closed. RP (June 7, 2010) at 33.

¶ 4 Briejer's attending physician, Dr. Neil Shonnard, diagnosed him with an L5 radiculopathy or a “slipped disk.” RP (June 8, 2010) at 194. Dr. Shonnard's records indicated that Briejer had also suffered a “crushed subtalar [ (ankle) ] joint” after his original claim was closed and that Briejer told Dr. Shonnard that the back pain had “ ‘simply crept up on him slowly without any specific injury.’ ” RP (June 8, 2010) at 195. To determine whether Briejer's new complaint and his original February 2000 injury were related, Dr. Shonnard recommended that Briejer have a magnetic resonance imaging procedure(MRI) and that he undergo an independent medical examination (IME).

¶ 5 L & I scheduled an IME with Dr. Sean Ghidella, an orthopedic surgeon, to determine whether to reopen Briejer's claim. After Briejer requested that L & I reopen his claim, but before he had the IME, Dr. Shonnard performed back surgery on Briejer on January 29, 2004. During the IME on February 25, 2004, Dr. Ghidella investigated whether Briejer's condition was the natural progression of his original work-related injury or was the result of an intervening cause. Briejer informed Dr. Ghidella that he had not suffered any intervening injury pertaining to his original claim but that he had suffered an injury to his ankle. At trial, Dr. Ghidella acknowledged that Dr. Shonnard had already performed surgery on Briejer's back before he saw him:

Dr. Shonnard saw ... Briejer again on January 20, 2004 and noted the symptoms had worsened. Quite appropriately, he offered him the standard of care, which is to be operated on to relieve that pressure. Then on January 29, 2004, Dr. Shonnard had performed that disk procedure ... It had occurred prior to my evaluation.

RP (June 8, 2010) at 197. Dr. Ghidella concluded that there was no new explanation for the worsening of Briejer's condition, and he recommended that L & I reopen Briejer's original claim.

¶ 6 Based on Dr. Ghidella's IME report, L & I reopened Briejer's claim on March 16, 2004, effective December 10, 2003, the first date that Briejer had sought treatment for the worsening of his back condition. As a result of his back surgery on January 29, 2004, Briejer was unable to work; thus, L & I began paying him time-loss benefits as of that date.

¶ 7 Four years later, in 2008, L & I received an anonymous tip that Briejer was engaging in activities inconsistent with his alleged injury; specifically, the tip directed L & I to a YouTube video of Briejer climbing Mt. Rainier. ^FN1 L & I initiated an investigation, during which L & I's fraud investigator, Alan Gruse, discovered reports of multiple broken bones due to Briejer's “extreme sporting activities” in Briejer's 2006 medical records. RP (June 7, 2010) at 79.

¶ 8 During his investigation, Gruse requested medical records from hospitals where Briejer had been treated for injuries resulting from his extreme sporting activities and discovered that on October 3, 2003, Briejer had been a self-employed, uninsured siding installer and that he had fallen eight feet from a ladder and landed directly on his feet, crushing the subtalar joint. Briejer had informed Dr. Ghidella that he had stopped working on October 3, 2003. ^FN2 In addition, on his application to reopen his claim, Briejer indicated that the last date he had worked was October 3, 2003, and that on that date he had been employed by Phil's Precision Siding.

¶ 9 To determine whether the October 3, 2003, fall Briejer suffered could have had an impact on his back, Gruse sought the advice of Allan Tencer, a biomechanical engineer employed at the University of Washington School of Medicine. Tencer opined that the force that fractured Briejer's ankle was similar to the force that would cause damage to his spine. Gruse also gave Briejer's medical records to Dr. Ghidella, who determined that it was more probable than not that Briejer's back injury resulted from his October 2003 fall and, thus, it was inappropriate for the earlier claim to have been reopened.

¶ 10 Based on Tencer's and Dr. Ghidella's opinions, Gruse instructed the claims manager to terminate Briejer's benefits in March 2009. Between the date his claim was reopened and the date L & I terminated benefits, Briejer received over $258,000 in time-loss benefits, $31,651.12 in vocational retraining, and $76,650.91 in medical services. The State charged Briejer with 57 counts of first degree theft by color or aid of deception related only to his reopened claim in 2004, asserting that his 2003 fall that had injured his ankle was the cause of the 2004 back symptoms and that the L5 radiculopathy did not result from a gradual worsening of his earlier work-related injury.

¶ 11 Briejer unsuccessfully sought to suppress testimony about his climbing Mt. Rainier and his participation in extreme sports after 2004 when he reopened his claim. He argued that the testimony was irrelevant and that it was highly prejudicial because it suggested that Briejer was not actually injured and was instead taking advantage of the state disability system, when the issue central to the criminal charge at trial was actually whether Briejer had acted deceptively in reopening his earlier workers' compensation claim in 2004. The State countered that the testimony was relevant because Briejer's extreme sports and other activities gave rise to L & I's investigation and, thus, provided background to Briejer's ultimate prosecution, admissible under the so-called “res gestae” exception to ER 404(b).

¶ 12 Witnesses at trial testified as described above. The jury found Briejer guilty on 56 of the 57 counts, and the trial court sentenced him to 43 months in prison. Briejer timely appeals his convictions.

ANALYSIS

I. Sufficiency of the Evidence

[1] ¶ 13 Briejer argues that the evidence is insufficient to support his first degree theft convictions because the State's evidence did not prove beyond a reasonable doubt that he affirmatively deceived the State in order to reopen his workers' compensation claim and receive additional benefits. The State counters that Briejer's representations on his claim reopening form and his statements to Dr. Shonnard and Dr. Ghidella regarding the source of his back injury show that he made a conscious and deliberate effort to deceive the State. We disagree with the State and agree with Briejer.

A. Standard of Review

[2] [3] ¶ 14 Sufficient evidence exists to support a conviction if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Hosier, 157 Wash.2d 1, 8, 133 P.3d 936 (2006). A defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn from the evidence. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wash.App. 410, 415–16, 824 P.2d 533 (1992). We may infer specific criminal intent of the accused from conduct that plainly indicates such intent as a matter of logical probability. State v. Goodman, 150 Wash.2d 774, 781, 83 P.3d 410 (2004).

B. Theft by Color or Aid of Deception

¶ 15 To convict Briejer of theft by color or aid of deception based on his 2004 statements supporting the reopening of his 2000 claim, the State was required to prove beyond a reasonable doubt that “[b]y color or aid of...