State v. Christian, 15495-8-I

• Decision Date: 06 August 1986
• Docket Number: No. 15495-8-I,15495-8-I
• Citation: 44 Wn.App. 764,723 P.2d 508
• Parties: STATE of Washington, Respondent, v. Darrold Devuan CHRISTIAN, Appellant.
• Court: Washington Court of Appeals

Page 764

44 Wn.App. 764

723 P.2d 508

STATE of Washington, Respondent, v. Darrold Devuan CHRISTIAN, Appellant.

No. 15495-8-I.

Court of Appeals of Washington,

Division 1.

Aug. 6, 1986.

As Changed Sept. 8, 1986.

Neil Fox, Appellate Defender, Seattle, for appellant.

Monica Benton, Deputy Pros. Atty., Seattle, for respondent.

PEKELIS, Judge.

Darrold Devuan Christian appeals his conviction for first degree escape. He alleges that the trial court erred in allowing a witness to testify in violation of the best evidence rule, in denying his motion to dismiss for failure to charge him with the willful failure to return to a work release facility instead of with first degree escape, and in convicting him of first degree escape because there was insufficient proof thereof. We disagree and affirm the trial court.

On March 1, 1984, Christian was charged by information with first degree escape in violation of RCW 9A.76.110. The bench trial was held on September 13, 1984, and the only witness was John A. LaPlante, a probation and parole officer at Bishop Lewis House, a state work release facility.

LaPlante testified that while Christian was on work release he was Christian's parole officer. On December 16, 1983, LaPlante believed Christian was going on a work search. If that were the case, he would have been required to notify a staff member at the beginning of the day and to properly fill out the sign-out sheet, initial it, and have the supervising staff member initial it. At approximately 8:45 a.m., LaPlante's supervisor ordered him and another staff member to search for Christian because there was some indication that he left without permission. They looked at the sign-out book, and there was no notation that Christian had signed out or that a staff member had had any contact with Christian regarding his leaving the facility.

They then went to Christian's room. Not finding him there, the staff searched the entire facility as well as the surrounding area. As is routine, LaPlante called local law enforcement agencies and local hospitals before beginning formal departmental escape procedures. LaPlante testified that between December 16, 1983 and February, 1984, the date that he ended his employment at Bishop Lewis House, Christian had not returned. On October 10, 1984, the court entered findings of fact and conclusions of law, determining that Christian was guilty of first degree escape.

Christian first contends that the trial court violated ER 1002, the best evidence rule, in allowing LaPlante to testify regarding the notations on the sign-out sheet when the sheet itself was not admitted into evidence. At trial, Christian's attorney objected twice to this testimony. Although she did not offer any basis for her first objection, the court sustained it as to the form of the question. The prosecutor rephrased the question and defense counsel again objected, claiming lack of foundation. The court overruled the objection on this basis. Christian's attorney did not raise ER 1002 as a further basis for exclusion. It is well established that

[i]f a specific objection is overruled and the evidence in question is admitted, the appellate court will not reverse on the basis that the evidence should have been excluded under a different rule which could have been, but was not, argued at trial.

State v. Ferguson, 100 Wash.2d 131, 138, 667 P.2d 68 (1983) (quoting 5 K. Tegland, Wash. Prac., Evidence § 10, at 25 (2d ed. 1982)). Thus, we decline to consider this assignment of error.

Christian next contends that the trial court erred in denying his motion to dismiss for the failure to charge him under RCW 72.65.070 for the willful failure to return to a work release facility rather than under RCW 9A.76.110 for first degree escape. The language of the two statutes does not support this contention. ¹ RCW 72.65.070 punishes inmates who willfully fail to return to confinement while RCW 9A.76.110 punishes inmates who escape from custody, i.e., leave without permission.

Nevertheless, Christian asserts that State v. Danforth, 97 Wash.2d 255, 643 P.2d 882 (1982), supports his argument that he should have been charged under RCW 72.65.070. In Danforth, the defendants left their work release facility to look for employment and failed to return. It appears from the opinion that they had permission to leave the facility. Although the court broadly held "that work release inmates may not be prosecuted under the general escape statute, RCW 9A.76.110," the court went on to state that "RCW 72.65.070, as the more specific statute, ... preempts prosecutions under RCW 9A.76.110 of those defendants whose crime is failure to return to a work release facility." (Emphasis added.) Danforth, at 257-58, 643 P.2d 882. The court did not have before it and did not address the case of an inmate whose crime is leaving without permission.

Subsequent case law does not support Christian's contention that he was charged under the wrong statute. In State v. Thompson, 35 Wash.App. 766, 669 P.2d 1270 (1983), the defendant was charged with first degree escape under RCW 9A.76.110 after leaving a work release facility without permission. The court rejected Thompson's argument that he could only be charged under RCW 72.65.070. The court found Danforth inapplicable because:

Thompson did not "[fail] to return to the designated place of confinement at the time specified"; he returned to his work release facility at the proper time, but then left again without permission. The facts of his offense thus do not fall under RCW 72.65.070. Thompson was properly charged with escape under RCW 9A.76.

Thompson, at 769, 669 P.2d 1270. Thompson was not appealed to the Supreme Court.

In State v. Gonzales, 37 Wash.App. 251, 680 P.2d 63 (1984), the defendant was charged with first degree escape under RCW 9A.76.110. After returning to his work release facility late, he was told that his work release status was suspended. He then ran from the facility. Again, the court rejected the defendant's contention that he should have been charged with the willful failure to return to the facility under RCW 72.65.070. "Defendant did return; his running from the facility without permission gives rise to the escape charge." Gonzales, at 253, 680 P.2d 63. ² The Supreme Court affirmed the decision, State v. Gonzales, 103 Wash.2d 564, 693 P.2d 119 (1985), although it did not discuss this issue.

Christian asks this court to overrule State v. Thompson, supra, arguing that it conflicts with Danforth where he claims the court held without limitation that work release inmates may not be prosecuted under RCW 9A.76.110. However, reading Danforth carefully, the two cases do not conflict. Danforth "preempts prosecutions under RCW 9A.76.110 of those defendants whose crime is failure to return to a work release facility," Danforth, 97 Wash.2d at 258, 643 P.2d 882, while Thompson's crime, like Christian's, was leaving without permission. ³

Christian is correct, however, in perceiving that Danforth recognizes that the "willfulness" element imposed by the Legislature in RCW 72.65.070 requires a greater quantum of proof for the State than the "knowledge" element in RCW 9A.76.110, which has been imposed by case law. Danforth, 97 Wash.2d at 258-59, 643 P.2d 882; State v. Descoteaux, 94 Wash.2d 31, 35, 614 P.2d 179 (1980). Danforth's exhortation to charge only under RCW 72.65.070 when prosecuting work release inmates who fail to return to confinement is in recognition of this distinction, Danforth, 97 Wash.2d at 258-59, 643 P.2d 882.

In the recent case of State v. Hall, 104 Wash.2d 486, 706 P.2d 1074 (1985), the Supreme Court again addressed the distinction between the culpability elements of the two statutes. There the defendant was convicted of first degree escape under RCW 9A.76.110 after failing to return to a work release program administered from the Vancouver City Jail. When read together with RCW 72.65.010(4) which defines "prisoner" as one convicted of a felony and sentenced to confinement in a state facility, RCW 72.65.070 applies only to state prisoners. Hall, at 492, 706 P.2d 1074. Since the defendant was not a state inmate, he could only be charged with escape. The court held that his right to equal protection was violated because RCW 9A.76.110, applicable to all prisoners, has a lower culpability element than RCW 72.65.070, applicable only to "state prisoners who escape from work release". Hall, at 492-93, 706 P.2d 1074. However, the court resolved the equal protection problem by holding that any time a work release inmate is charged under the escape statute, the State is required to prove that the defendant

willfully failed to return to be convicted of first degree escape. By applying this culpability requirement, RCW 9A.76.110 and RCW 72.65.070 will be reconciled and a work release prisoner's right to equal protection of the laws will be safeguarded.

Hall, at 493-94, 706 P.2d 1074.

The court in Hall focused on the inequality created between state and non-state work release inmates due to the different culpability levels in the two statutes. In discussing the two statutes, however, the court did not distinguish between those defendants whose crime is leaving a work release facility without permission, i.e., those who escape, and those whose crime is failing to return. While the culpability elements of the statutes differ, so do the crimes. This distinction is blurred by the court's use of the term "escape" when it is actually referring to the willful failure to return to confinement. E.g., Hall, at 492, 493, 706 P.2d 1074.

Nevertheless, to the extent Hall is applicable to this case, ⁴ the trial court applied a standard consistent with Hall's holding. In order to avoid a possible problem under Danforth, the State voluntarily assumed the burden of proving that Christian willfully escaped from custody. The State thus avoided the problem addressed in Hall.

In summary, we believe that a close...