State v. Heutink

• Decision Date: 18 February 2020
• Docket Number: No. 78033-6-I,78033-6-I
• Citation: 458 P.3d 796
• Parties: The STATE of Washington, Respondent, v. Donald John HEUTINK, Appellant.
• Court: Washington Court of Appeals

458 P.3d 796

The STATE of Washington, Respondent,

v.Donald John HEUTINK, Appellant.

No. 78033-6-I

Court of Appeals of Washington, Division 1.

FILED: February 18, 2020

Nielsen Koch PLLC, Attorney at Law, Kevin Andrew March, Nielsen Koch PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.

Whatcom County Prosecutor's Office, Attorney at Law, Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave. Ste. 201, Bellingham, WA, 98225-4038, for Respondent.

PUBLISHED OPINION

Appelwick, C.J. ¶1 Heutink appeals his conviction for felony stalking. He argues that in the stalking statute the phrase "under circumstances not amounting to a felony attempt of another crime" is an essential element of the crime.¹ He contends that his conviction must be reversed because the State failed to plead this element in the information, and failed to prove it beyond a reasonable doubt to the jury. Further, he asserts that the trial court erred in admitting impermissible hearsay testimony from Kristi.² He also asserts that the court erred in admitting evidence that others feared for Kristi’s safety, because such evidence was irrelevant, unduly prejudicial, and improper opinion testimony. He contends that the State failed to prove beyond a reasonable doubt that Kristi’s fear of injury was reasonable. Last, he argues that certain legal financial obligations should be stricken from his judgment and sentence. We affirm Heutink’s conviction, but remand to the trial court to strike the criminal filing fee, jury demand fee, and domestic violence assessment.

FACTS

¶2 Donald Heutink and Kristi Heutink were married for a little over 12 years and have four children together. They separated on December 2, 2015. After the separation, Kristi stayed in the family home with the children, and Heutink moved out.

¶3 Prior to dissolving their marriage, Kristi sought a protection order against Heutink. Heutink had been writing her letters and coming to the house, and would not stop calling or texting her despite Kristi asking him to stop. A few days before she obtained the order, Heutink sent Kristi a text message saying that he wanted to come to the house and pick up some items. Heutink had not lived at the house for close to a year by that time. Kristi repeatedly asked Heutink what he needed, and told him that she would have someone bring him the items. Heutink responded by saying that he was "coming to get [her]." At that point, Kristi called the police.

¶4 Before the police arrived, Kristi saw Heutink coming down her driveway. She locked all the doors and called 911. The 911 dispatcher explained to her that somebody was already on the way. Heutink then knocked on the door for a minute or two. After the police arrived, Heutink refused to leave, and Kristi eventually left the house while two sheriffs remained with him. On September 6, 2016, the trial court granted Kristi a temporary order for protection. Heutink did not comply with the order.

¶5 On November 21, 2016, Heutink and Kristi dissolved their marriage. A few weeks later, Kristi obtained another temporary order for protection against him. The order became permanent on December 29, 2016. Heutink failed to comply with the order. He continued to text, call, and e-mail Kristi, send her messages through other people, send her gifts, and go to her home. His violations resulted in a court proceeding the following March. On March 15, 2017, he was convicted of violating the order for protection.

¶6 In early spring of 2017, Kristi discovered a Christmas ornament hanging in the shop on her property. Her ornaments would usually be packed away with her Christmas items. On another occasion, Kristi was visiting Lummi Island with some friends and her kids, and noticed that Heutink was driving behind her. She discovered an application on her Google Play store called "GPS [ (Global Positioning System) ] Tracker." She had not installed the application, but it was linked to her cell phone.

¶7 In May 2017, Kristi moved to a new home and did not tell Heutink where she had moved. That August, while the order for protection was still in effect, Heutink showed up at her home. Kristi had been watching television with their son late at night when she heard Heutink’s truck pull into the driveway. She called 911, got her gun, and stood in her kitchen with the gun. Through a window, she saw Heutink walk up to the front door. He knocked on the door for a while. Kristi heard the doorknob rattling and saw it moving. Heutink eventually left, and an officer arrived.

¶8 One evening in the summer of 2017, Kristi’s dog began scratching at the door. She testified that this was not normal for her dog. When Kristi opened the door, she saw a figure between her house and her neighbor’s house that started running. Her dog chased after the figure.

¶9 After these incidents at her new home, Kristi sought a restraining order against Heutink. The hearing on the order took place on September 21, 2017. At the hearing, Heutink stared at Kristi and glared at her attorney. At one point, the commissioner had to tell Heutink to stop staring at them. The commissioner entered a restraining order that protected not only Kristi but their four children. Heutink refused to sign the order, stomped out of the hearing, and slammed the door on his way out.

¶10 Less than a month later, on October 8, 2017, Kristi received a text message from a person named Levi Stuit. The text message stated that Heutink was wondering if he could see the boys, and asked where and when they should meet up so that Heutink could see them. Kristi recognized Stuit’s name but did not know him. Because the restraining order prohibited any indirect contact between her and Heutink, she reported the text message to the police. Stuit turned out to be Heutink’s friend and former coworker. On the day that Kristi received the text message from Stuit, he had left his phone in Heutink’s car and did not have access to it. The messages had been deleted by the time Stuit got his phone back.

¶11 A few days later, on October 10, 2017, Kristi received flowers at her home with a card that said, " ‘Have a good day.’ " The flowers arrived the day before her and Heutink were set to go to trial. Around that time, Heutink had gone into a flower shop and ordered flowers for Kristi. He had refused to give his name, paid with cash, and left. Kristi’s attorney also received flowers from Heutink that month.

¶12 Kristi grew more concerned after learning about an October 12, 2017 interview that Heutink had with Detective Kenneth Gates. Gates relayed to Kristi specific threats Heutink had made regarding her attorney, Patricia Woodall, and her former pastor, Chuck Kleinhesselink. During the interview, Gates tried talking to Heutink about the flowers that were sent to Kristi and Woodall. Gates testified that Heutink responded by saying, " ‘F*** Woodall. Is she scared?’ " He also testified that, at one point, Heutink raised his voice and stated, " ‘Woodall should be scared.’ " At the end of the interview, Gates asked Heutink if he had a solution to see his kids. Gates testified that Heutink said he did not have a solution, and then stated, " ‘A felony.’ " Last, Gates explained that Heutink had made specific threats towards Woodall and Kleinhesselink. Heutink stated, "[Y]ou also should tell Pastor Chuck and Woodall that they’re lucky I’m in here."

¶13 Later in October, Heutink mailed a letter and postcard to Kristi’s father’s house. The letter and postcard were addressed to their children. In November 2017, Heutink mailed another letter to Kristi’s father’s house. The letter, addressed to Kristi’s father and stepmother, directed them to communicate certain information to Kristi. Heutink sent four more postcards to Kristi’s father’s house in December. He addressed the postcards individually to each of their four children.

¶14 The State charged Heutink with one count of stalking (domestic violence) and three aggravating factors for his conduct between December 2, 2015 and December 29, 2017. Over a defense objection at trial, the court allowed Kristi to testify that, at one point, her sister relayed a "threat" she had received from Heutink. She testified that her sister had shown her a text message from Heutink’s phone number that said, "I hope you all like the way things are going. I have a lot more up my sleeve, and this is going to be a long hot summer." The court also allowed Kristi to testify that, in October 2017, Jake Wiebusch (Heutink’s probation officer) contacted her to express his concerns about her safety. She testified that Wiebusch told her to consider relocating with her family and gave her information about the witness protection program. At the CrR 3.5 suppression hearing before trial, Heutink objected to Kristi’s testimony about Wiebusch. He did not object to the testimony at trial.

¶15 Several witnesses at trial were allowed to testify regarding their fear for Kristi’s safety. First, two of Heutink’s and Kristi’s pastors testified that they were concerned for Kristi’s safety based on Heutink’s behavior. At the CrR 3.5 suppression hearing before trial, Heutink stated that he would be objecting to the pastors’ testimony. At trial, he did not object to their testimony about their concern for Kristi.

¶16 Second, Pamela Englett, a pro tem commissioner for the Whatcom County Superior Court, testified at trial. During her testimony, the State asked her if she was concerned for Kristi’s safety at the end of the September 21 hearing on the restraining order. Heutink objected to the question, and the court sustained the objection. The State then asked her if she had made any requests of others in the courtroom regarding Kristi. Commissioner Englett responded that she had. She explained that she had asked a deputy to go with Kristi and her attorney to Kristi’s car, because she was concerned for their safety. Heutink did not object.

¶17 A jury found Heutink guilty of felony stalking. It also returned three...