State v. Brown

• Decision Date: 13 December 2007
• Docket Number: No. 77885-0.,77885-0.
• Citation: 162 Wn.2d 422,173 P.3d 245
• Parties: STATE of Washington, Respondent, v. Mickey William BROWN, Petitioner.
• Court: Washington Supreme Court

173 P.3d 245

162 Wn.2d 422

STATE of Washington, Respondent, v. Mickey William BROWN, Petitioner.

No. 77885-0.

Supreme Court of Washington, En Banc.

Argued September 14, 2006.

Decided December 13, 2007.

Carol A. Elewski, Attorney at Law, Tumwater, for petitioner.

Patrick T. Johnson, Jr., Attorney at Law, Spokane, Andrew J. Metts III, Spokane, for Respondent.

C. JOHNSON, J.

¶ 1 Following a bench trial, defendant Mickey William Brown (Brown) was convicted of intimidating a witness and first degree burglary while armed with a deadly weapon, a firearm. The Court of Appeals affirmed the convictions, holding that although Brown was charged in the language of an outdated version of the witness intimidation statute, that language was unnecessary to a charge under the present statute and could be disregarded as surplusage. The Court of Appeals also upheld the trial court's determination that Brown was armed with a deadly weapon during commission of the burglary because a rifle that was taken from the victim's closet and placed on a bed was readily available and accessible while Brown and an accomplice ransacked the victim's house, including the bedroom where the gun was found. We reverse Brown's conviction for witness intimidation, and reverse the holding that Brown was armed with a deadly weapon during the commission of burglary and was improperly convicted of first degree burglary, and we reverse imposition of a deadly weapon sentence enhancement.

FACTS

¶ 2 On August 6, 2001, Craig Ambacher returned to his residence and discovered that it had been burglarized. Although rooms had been ransacked and many of his belongings were gathered at various points in the house, nothing was missing. He found a rear sliding door open, and believed he had interrupted a burglary.

¶ 3 Ambacher found his unloaded AK 47 rifle on the bed in the master bedroom a short distance from the closet where it was normally kept. An ammunition clip for a different rifle was lying on the bed next to the rifle. The nightstand had been emptied out, as had a chest of drawers. Ambacher owned a 9 mm pistol he kept under his bed, along with VCRs (videocassette recorders). The VCRs had been pulled out, but not the pistol.

¶ 4 At the time of the burglary, Melissa Hill was living with the Browns. Hill saw Brown and Lenny Brown, the defendant's cousin, return home after the burglary. When she joined them in the basement of the Browns' home, she heard them talking about having burglarized a house. The defendant said they had been caught in the middle of the burglary. She testified that she heard one of the two men say that the guns were nice and he wished they could have gotten them, and that Brown said he thought he could get a lot of money for the guns.

¶ 5 Hill testified that Brown told her that she would "pay" if she spoke to the police. She believed this threat was a credible threat against her personal safety and a threat of violence. She testified that Brown was mad and yelling and that Lenny Brown defended her and told Brown to stop yelling and to calm down.

¶ 6 Upon discovering that the house had been burglarized, the victim, Ambacher, went to the front of the house and wrote down the license plate number of Brown's car, left on the street across from Ambacher's house, and the license plate number of a car he saw used to retrieve Brown's car. The license plate numbers led the investigating police officers to Brown and Lenny Brown, as well as to Melissa Hill, who was a key witness for the State against Brown at his trial.

¶ 7 As a result of his threat against Hill, Brown was charged with intimidating a witness. The information charged this offense in language appearing in a 1994 former version of RCW 9A.72.110 — language that was deleted by the legislature when it amended the statute in 1997. Brown was also charged with first degree burglary based on the fact that he or another participant in the crime was armed with a deadly weapon, a firearm, i.e., the AK 47 rifle found on the bed in the victim's home.

¶ 8 Brown waived the right to a jury trial, and the trial court found him guilty of the offenses charged. Among other things, the court concluded that "the gun lying on the bed would make the gun readily accessible to those who were in the process of ransacking this [master bed]room looking for bounty." Verbatim Report of Proceedings (VRP) at 196 (Feb. 12, 2002). The court imposed concurrent sentences for the witness intimidation and first degree burglary convictions and imposed a firearm sentence enhancement.

¶ 9 Brown appealed. He argued the evidence was insufficient to support his conviction for intimidating a witness, that he was not armed for purposes of first degree burglary or the sentence enhancement, that his offender score was miscalculated, and that he received ineffective assistance of counsel. Acting on his own, Brown filed a statement of additional grounds for review raising a number of issues, some of them involving challenges to the denial of his posttrial motions.

¶ 10 In an unpublished opinion, the Court of Appeals concluded that ineffectiveness of counsel had not been established, affirmed the convictions and the firearm sentence enhancement, and found the issues raised in Brown's statement of additional grounds for review to be without merit. However, because the State conceded that Brown's offender score had been incorrectly calculated, the Court of Appeals remanded for resentencing. State v. Brown, noted at 129 Wash. App. 1004, 2005 WL 2001083, 2005 Wash. App. LEXIS 2090.

ANALYSIS

¶ 11 Brown first contends that his conviction for intimidating a witness must be reversed because it is not supported by sufficient evidence. A defendant's challenge to the sufficiency of the evidence requires the reviewing court to view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. State v. Hosier, 157 Wash.2d 1, 8, ¶ 9, 133 P.3d 936 (2006); State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). "All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." Hosier, 157 Wash.2d at 8, ¶ 9, 133 P.3d 936; Salinas, 119 Wash.2d at 201, 829 P.2d 1068. "A claim of insufficiency admits the truth of the State's evidence" and all reasonable inferences. Salinas, 119 Wash.2d at 201, 829 P.2d 1068.

¶ 12 RCW 9A.72.110 provides in part:

(1) A person is guilty of intimidating a witness if a person, by use of a threat against a current or prospective witness, attempts to:

(a) Influence the testimony of that person;

(b) Induce that person to elude legal process summoning him or her to testify;

(c) Induce that person to absent himself or herself from such proceedings; or

(d) Induce that person not to report the information relevant to a criminal investigation or the abuse or neglect of a minor child, not to have the crime or the abuse or neglect of a minor child prosecuted, or not to give truthful or complete information relevant to a criminal investigation or the abuse or neglect of a minor child.

¶ 13 Subsections (a) through (d) describe alternative means of committing the crime of intimidating a witness. State v. Boiko, 131 Wash.App. 595, 599, ¶ 10, 128 P.3d 143 (2006); State v. Chino, 117 Wash.App. 531, 539, 72 P.3d 256 (2003).

¶ 14 As noted, the information charged Mr. Brown under a former version of RCW 9A.72.110: "That the defendant, MICKEY WILLIAM BROWN, in the State of Washington, on or about August 29, 2001, by use of a threat directed to Melissa Hill, a person that the defendant had reason to believe was about to be called as a witness in an official proceeding, did attempt [to] influence the testimony of such person." Clerk's Papers (CP) at 1-2 (emphasis added).¹ Brown argues that the State must prove all the elements of the crime as charged, despite the information's obvious reference to an outdated statute. The Court of Appeals held, however, that because the statute had been amended to eliminate a requirement of a pending official proceeding, the words in the information referring to a witness in an official proceeding constituted a factual allegation that could be disregarded as surplusage rather than as stating an element of the crime. Brown contends that the Court of Appeals erred in holding that the language was surplusage.

¶ 15 Regardless whether the language was surplusage, we conclude the evidence is insufficient to support Brown's conviction. When the outdated language referring to an official proceeding is disregarded, the information charges Mr. Brown with intimidating a current or prospective witness by attempting to influence the testimony of the witness by use of a threat. This is a valid charge under the current version of the statute, specifically RCW 9A.72.110(1)(a). The problem, however, is that the State did not prove that Brown threatened Hill in an attempt to influence her testimony. Rather, the only evidence presented, even when viewed most favorably to the State as required, shows that Brown threatened Hill in an attempt to prevent her from providing any information to the police. Further, the trial court did not enter any finding relating to an attempt to influence Hill's testimony. Thus, the evidence was insufficient to support the crime that the State did charge, with or without the "surplusage."

¶ 16 Accordingly, his conviction must be reversed because the evidence does not support a conviction for intimidating a current or prospective witness through an attempt to influence her testimony by use of a threat — the only one of the four alternative statutory means of committing the crime that the information can be read to charge.

¶ 17 Mr. Brown next contends that the Court of Appeals failed to correctly apply the "nexus test" to determine whether he was armed for purposes of both his...