State v. Dillon

• Decision Date: 03 February 2020
• Docket Number: No. 78592-3-I,78592-3-I
• Citation: 456 P.3d 1199
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. George Abraham DILLON, Appellant.

456 P.3d 1199

STATE of Washington, Respondent,

v.George Abraham DILLON, Appellant.

No. 78592-3-I

Court of Appeals of Washington, Division 1.

FILED: February 3, 2020

Richard Wayne Lechich, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Appellant.

Prosecuting Attorney Snohomish, Seth Aaron Fine, Mary Kathleen Webber, Snohomish County Prosecuting Office, 3000 Rockefeller Ave., M/S 504, Everett, WA, 98201, for Respondent.

PUBLISHED OPINION

Mann, A.C.J. ¶ 1 George Dillon appeals his conviction and sentence for unlawful imprisonment and third degree assault. Dillon contends that there was insufficient evidence supporting the unlawful imprisonment conviction, that the knowledge instruction relieved the State of its burden of proof, that the trial court improperly admitted evidence of his after-arrest conduct at the hospital, and that the trial court improperly imposed legal financial obligations (LFO) because he is indigent and his sole source of income is his Social Security disability funds.

¶ 2 We remand to strike the LFO that he "pay supervision fees as determined by DOC," the interest accrual provision, and to clarify that the $500 victim assessment fee may not be satisfied out of his Social Security disability funds. We affirm on all other grounds.

I

¶ 3 On December 21, 2017, George Favors stopped at a 7-Eleven after he got off his bus in Lynwood. Favors takes the bus because he has glaucoma, partial vision in his right eye, and no vision in his left eye. When Favors entered the 7-Eleven, he was listening to music on his large Bluetooth headphones.

¶ 4 Favors encountered Dillon standing near the entrance to 7-Eleven. Favors noticed that Dillon had scratches on his face, was bleeding, and intoxicated. Favors thought that Dillon was panhandling and told him he did not have change. Favors continued into the 7-Eleven.

¶ 5 Dillon entered the 7-Eleven 10 to 15 seconds after Favors. Favors finished making his purchase and started walking towards the exit. Dillon was standing three feet in front of the exit. Dillon told Favors in a slurred voice to "get your ass back over there" and threatened to cut and shoot him. Favors feared that the situation would escalate and went to the back of the store.

¶ 6 Favors tried to leave a second time and Dillon said "I told you one time; get your ass back over there." Favors, who is African-American, recalled hearing a racial slur. Favors discreetly called 911 on his Bluetooth headphones. Other 7-Eleven customers were entering and exiting without issue. The two store clerks were telling Dillon to leave. Favors indicated that Dillon appeared to be intimidating the clerks.

¶ 7 Sergeant Joshua Kelsey of the Lynwood Police Department responded to the call. When Sergeant Kelsey arrived, he found Dillon outside the 7-Eleven, talking to someone in an SUV. Sergeant Kelsey placed Dillon in handcuffs and as he was walking him to his patrol car, Dillon "rear[ed] his head back" and hit Sergeant Kelsey on his forehead and the bridge of his nose. Sergeant Kelsey recalled that Dillon was intoxicated, his balance was poor, and was making incoherent statements.

¶ 8 Sergeant Kelsey took Favors’s statement. The store clerks declined to provide a written statement. Sergeant Kelsey took Dillon to the hospital because Dillon had preexisting injuries on his face. At the hospital, Dillon exhibited mood swings from anger to happiness. Dillon made threatening statements to Sergeant Kelsey and hospital staff, but also talked about loving Sergeant Kelsey and the hospital staff and discussed liking music. Sergeant Kelsey was not treated for any injuries on his face and did not take any pictures of his face where Dillon hit him.

¶ 9 The State initially charged Dillon with third degree assault of Sergeant Kelsey and harassment of Favors, but amended the information to include unlawful imprisonment of Favors. The only witnesses at trial were Favors and Sergeant Kelsey. The defense objected to testimony about Dillon’s misconduct at the hospital, but the court ruled that the evidence demonstrated Dillon’s state of mind, level of intoxication, and completed the story for the jury.

¶ 10 Favors testified inconsistently about whether he had his Bluetooth headphones on his ears the whole time he was in 7-Eleven, or if he took them off and put them around his neck before paying for his snacks and put them back on when he called 911. Additionally, Sergeant Kelsey testified that Dillon was outside the 7-Eleven when he arrived and Favors testified that Dillon was inside the 7-Eleven when Sergeant Kelsey arrived.

¶ 11 The defense requested a jury instruction on voluntary intoxication and the State did not object. The jury acquitted Dillon of felony harassment, but convicted him of third degree assault and unlawful imprisonment.

¶ 12 During sentencing, the trial court recognized Dillon’s history of alcohol and drug abuse and mental illness and imposed a drug offender sentencing alternative. The court imposed $500 in mandatory LFOs and ordered Dillon to make payments of $10 a month starting 60 days after his release. The court also ordered Dillon to pay for his supervision costs after release. Dillon appeals.

II.

¶ 13 We review instructional errors raised for the first time on appeal for manifest constitutional error. RAP 2.5(a) ; State v. O’Hara, 167 Wash.2d 91, 100-01, 217 P.3d 756 (2009). The defendant must demonstrate that "(1) the error is manifest, and (2) the error is truly of constitutional dimension." O’Hara, 167 Wash.2d at 98, 217 P.3d 756. An error is manifest when it results in actual prejudice. O’Hara, 167 Wash.2d at 99, 217 P.3d 756. "To demonstrate actual prejudice, there must be a plausible showing by the appellant that the asserted error had practical and identifiable consequences in the trial of the case." O’Hara, 167 Wash.2d at 99, 217 P.3d 756 (internal quotations omitted). Even when there is an error of constitutional magnitude, the claim is subject to a harmless error analysis. O’Hara, 167 Wash.2d at 99, 217 P.3d 756.

¶ 14 When determining whether sufficient evidence supports a criminal conviction, the court views the evidence in the light most favorable to the prosecution. State v. Kintz, 169 Wash.2d 537, 551, 238 P.3d 470 (2010). We determine, given the facts, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Kintz, 169 Wash.2d at 551, 238 P.3d 470. Direct and circumstantial evidence are equally reliable in determining the sufficiency of the evidence. Kintz, 169 Wash.2d at 551, 238 P.3d 470. Inferences based on circumstantial evidence, however, must be reasonable and cannot be based on speculation. State v. Vasquez, 178 Wash.2d 1, 16, 309 P.3d 318 (2013).

A.

¶ 15 Dillon contends that the trial court erred when it instructed the jury that Dillon "must have knowledge of the facts, circumstances, or results that constitute a crime, rather than knowledge that the facts, circumstances, and results are a crime." This is so, Dillon argues, because under State v. Warfield, 103 Wash. App. 152, 5 P.3d 1280 (2000), the State must prove beyond a reasonable doubt that Dillon knowingly acted without legal authority. We disagree.

¶ 16 In order to establish the crime of unlawful imprisonment, the State must prove that the defendant "knowingly restrained] another person." RCW 9A.40.040. The word "restrain" has four components: "(1) restricting another’s movement; (2) without that person’s consent; (3) without legal authority; and (4) in a manner that substantially interferes with that person’s liberty." Warfield, 103 Wash. App. at 157, 5 P.3d 1280 ; RCW 9A.40.010(6).

¶ 17 In Warfield, the court held that "knowingly" modified all parts of "restrain," including "without legal authority." Warfield, 103 Wash. App. at 156, 5 P.3d 1280. Thus, the State was required to prove, beyond a reasonable doubt, that the defendant knew he was acting without legal authority. Warfield, 103 Wash. App. at 156, 5 P.3d 1280. The defendants in Warfield were bounty hunters and believed they had legal authority to extradite the victim, Mark DeBolt, to Arizona under a misdemeanor arrest warrant. Warfield, 103 Wash. App. at 155, 5 P.3d 1280. Since the Arizona warrant was for a misdemeanor, it had no lawful effect in Washington. Warfield, 103 Wash. App. at 155, 5 P.3d 1280. The defendants believing the warrant gave them legal authority to hold DeBolt, acted with good faith. Warfield, 103 Wash. App. at 155-56, 5 P.3d 1280. The court reversed the defendants’ convictions because the State failed to prove they knew they were acting without legal authority. Warfield, 103 Wash. App. at 155-56, 5 P.3d 1280.

¶ 18 State v. Johnson, 180 Wash.2d 295, 304, 325 P.3d 135 (2014), however, limited the holding of Warfield. The Johnson court determined that Warfield "is limited to those unique cases where the defendant had a good faith belief that he or she had legal authority to imprison a person." Johnson, 180 Wash.2d at 304, 325 P.3d 135. While the issue in Johnson was whether the information needed to contain the definition of "restrain" as an essential element of unlawful imprisonment, the court explained that the State does not have to prove a defendant knew he was acting without legal authority, unless facts exist to suggest the defendant had a good faith belief he had legal authority. Johnson, 180 Wash.2d at 303-04, 325 P.3d 135.

¶ 19 Consequently, after Johnson, where a claim is raised that a defendant had a good faith belief that they were acting with legal authority, the State must prove that the defendant actually knew that they had no legal authority. But, where no claim of a good faith belief of lawful authority is raised, the State need only prove that the defendant acted knowingly to restrain.

¶ 20 Here, the State did not have to prove that Dillon knew he was acting without legal authority because there were no facts suggesting Dillon believed he had legal...