State v. Heaton, No. 30123-7-II (WA 2/8/2005)
| Decision Date | 08 February 2005 |
| Docket Number | No. 30123-7-II,30123-7-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. ANDREW ALAN HEATON, Appellant. |
Appeal from Superior Court of Pierce County. Docket No: 02-1-00495-6. Judgment or order under review. Date filed: 02/21/2003. Judge signing: Hon. Kathryn J Nelson.
Counsel for Appellant(s), John Henry Browne, Law Offices of John Henry Browne PS, 2100 Exchange Bldg, Seattle, WA 98104-1578.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Officer Andrew Heaton appeals his official-misconduct conviction for allegedly stealing $41 from John Miller during a traffic stop. He argues that (1) RCW 9A.80.010, the official-misconduct statute, is unconstitutionally vague; (2) the `to convict' instruction improperly relieved the State of its burden to prove every element of the crime, thereby denying him due process of law; and (3) the evidence was insufficient to show he retained the money under color of law. The State concedes that the to-convict instruction was reversible error.
We first hold that RCW 9A.80.010 is not unconstitutionally vague. Looking, as we must, at the evidence in the light most favorable to the State, we next hold the evidence is sufficient to show that Heaton took Miller's money under color of law. Accepting the State's concession that giving the to-convict instruction was error, and rejecting its argument that the error was harmless, we reverse and remand for a new trial.
Pierce County Sheriff's Deputy Andrew Heaton and his partner, Marc Olsen, stopped John Miller, who was driving a vehicle with expired license tabs and whom Heaton recognized as lacking a valid license. According to Heaton, after verifying that Miller was driving with a revoked license, Heaton handcuffed Miller, looked through his wallet for identification, found folded money inside the wallet, and tapped the folded money on the patrol car's trunk to see whether it contained drugs in the folds.1 Finding no evidence of drugs, according to Heaton, he hastily put the money and other items back in Miller's wallet so the officers could respond immediately to a domestic violence call. The officers told Miller it was his `lucky day,' released him without issuing a citation, returned his wallet and its contents, and told him not to drive his car.
Shortly thereafter, Miller discovered that $41 was missing from his wallet and called the police. The Sheriff's Office summoned Heaton and Olsen, searched them, and found $21 in Heaton's wallet, folded in a manner that matched the description of Miller's missing folded money. Initially, Heaton claimed to know nothing about Miller or his money. In a subsequent internal affairs interview Heaton stated for the first time that he had found the folded $21 in the rain seal of his patrol car when he later opened the trunk. He thought the money belonged to Olsen, and intended to give the money back to him, but was interrupted when he arrested the driver of a stolen car. When Heaton later asked Olsen if the money belonged to him, Olsen said it did not.
The State charged Heaton with first-degree theft and, in the alternative, official misconduct. The State was unable to obtain fingerprints from the $21 seized from Heaton. The trial court instructed the jury that the theft and official misconduct charges were alternatives, such that they could acquit on both but could convict on only one. The jury found Heaton not guilty of first-degree theft and guilty of official misconduct. Heaton appeals.
Heaton argues that RCW 9A.80.010,2 the official misconduct statute, is unconstitutionally vague because it incorporates the terms `unauthorized acts' and `duty imposed by law,' which fail to give notice and do not prevent arbitrary enforcement. We disagree.
We presume statutes are constitutional. State v. Prestegard, 108 Wn. App. 14, 21, 28 P.3d 817 (2001). Challengers must prove the statute unconstitutional beyond a reasonable doubt. Prestegard, 108 Wn. App. at 21 (citing State v. Jenkins, 100 Wn. App. 85, 90, 995 P.2d 1268, review denied, 141 Wn.2d 1011 (2000)). To do so, a party must show that a statute is so vague that it does not define a criminal offense with sufficient specificity to allow a person of ordinary understanding to know what conduct the statute actually prohibits. Prestegard, 108 Wn. App. at 21 (citing Jenkins, 100 Wn. App. at 90). The mere showing of uncertainty, however, does not prove unconstitutional vagueness. Prestegard, 108 Wn. App. at 21 (citing Jenkins, 100 Wn. App. at 89-90).
The Washington State Supreme Court has established a test for determining statutory vagueness. In State v. Maciolek, the Court held that a statute lacks definiteness when it fails to provide (1) adequate notice to citizens, and (2) adequate standards to prevent arbitrary enforcement. 101 Wn.2d 259, 264, 676 P.2d 996 (1984). We review issues of vagueness de novo. Prestegard, 108 Wn. App. at 21 (citing Jenkins, 100 Wn. App. at 89).
Applying these standards here, we hold that RCW 9A.80.010 provides fair notice of the prohibited conduct. People of common intelligence can understand the meaning of the statute, which prohibits `official misconduct,' namely, that a public servant violates the law if he or she either (1) performs an unauthorized act under color of law, or (2) intentionally refrains from performing a duty imposed upon him or her by law. Although the question of what constitutes an unauthorized act is fact specific, it is not vague. Nor is it vague within the context of this case. A person of common intelligence can discern that a police officer taking money from a citizen during a traffic stop is conducting an unauthorized act. Similarly, the term `duty imposed by law' does not lack fair notice. Although this term, too, may require a fact-based review, again, a reasonably intelligent person would understand that a police officer conducting a search of a wallet for identification has a duty to account for the contents of the wallet and to return any money to the owner of the wallet, absent some legal reason for openly seizing it.
Additionally, RCW 9A.80.010 does not invite arbitrary enforcement. While the challenged terms may leave issues of fact for the court or jury to decide, the statute does not grant unbridled discretion in defining the proscribed criminal conduct. That Heaton's conduct must be subjectively evaluated to determine if he violated the statute does not make the statute unconstitutionally vague. See e.g. Maciolek, 101 Wn.2d at 267. Due process is violated only when there are no standards by which police, judge, and jury must follow to determine violations. Maciolek, 101 Wn.2d at 267. Laws defining Heaton's position and duties as a police officer govern whether his actions were official misconduct. See Oregon v. Florea, 296 Or. 500, 504, 677 P.2d 698 (1984). The unauthorized act here was Heaton's taking money from a citizen during a traffic stop without legal justification, a clear violation of both these standards and the law.3
We hold, therefore, that Heaton has failed to prove that RCW 9A.80.010 is unconstitutional as written or applied here.
Heaton next argues that the court's `to convict' instruction, number 13, omitted an element of the crime of official misconduct and, therefore, improperly relieved the State of its burden to prove every element of the crime. The State concedes that the instruction was erroneous, but it argues the error was harmless. We disagree.
We review a challenged jury instruction de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). A `to convict' instruction must contain all elements of the crime, and we may not rely on other instructions to supply a missing element. State v. Smith, 131 Wn.2d 258, 262-63, 930 P.2d 917 (1997). `The State must prove every essential element of a crime beyond a reasonable doubt for a conviction to be upheld,' and `{i}t is reversible error to instruct the jury in a manner that would relieve the State of this burden.' State v. Byrd, 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995); State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002). We agree with Heaton that instruction 13 improperly relieved the State of its burden of proof and that this error requires reversal.
To convict Heaton of official misconduct, the State had to prove the following elements:
(1) A public servant is guilty of official misconduct if, with intent to obtain a benefit or to deprive another person of a lawful right or privilege:
(a) He intentionally commits an unauthorized act under color of law; or (b) He intentionally refrains from performing a duty imposed upon him by law.
RCW 9A.80.010 (emphases added).
The trial court's `to convict' instruction number 13, however, required the jury to find only the following elements in order to convict Heaton of official misconduct:
(1) That . . . HEATON, gained a benefit from another person;
(2) That the defendant was a public servant;
(3) That the defendant acted with the intent to obtain a benefit under color of law;
(4) That the defendant was not authorized to obtain U.S. Currency from John Miller.
Clerk's Papers (CP) at 146 (emphasis added). RCW 9A.80.010, as the State concedes, this instruction did not advise the jury that, to convict Heaton of official misconduct, it must find he intentionally committed an unauthorized act, a necessary element of the error defined by RCW 9A.80.010.
Instruction 13 does not require the State to prove that Heaton intended to commit the unauthorized act of obtaining money from Miller. Heaton testified that he replaced Miller's money in Miller's wallet and that he (Heaton) had found the folded money he placed in his own wallet in the trunk of his...
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