State v. Johnson

• Decision Date: 02 February 2015
• Docket Number: No. 72365–1–I.,72365–1–I.
• Citation: 342 P.3d 338
• Parties: STATE of Washington, Respondent, v. Aaron Mercedes JOHNSON, Appellant.
• Court: Washington Court of Appeals

342 P.3d 338

STATE of Washington, Respondent,

v.Aaron Mercedes JOHNSON, Appellant.

No. 72365–1–I.

Court of Appeals of Washington,

Division 1.

Feb. 2, 2015.

Affirmed in part and reversed in part. Jodi R. Backlund, Skylar Texas Brett, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

SCHINDLER, J.

¶ 1 The State charged Aaron Mercedes Johnson with burglary in the first degree while armed with a firearm, count I; kidnapping in the first degree while armed with a firearm, count II; rape in the first degree while armed with a firearm, count III; felony harassment, count IV; felony stalking, count V; and assault in the fourth degree, count VI. The jury found Johnson not guilty of rape in the first degree but guilty as charged on the other counts. Johnson appeals, arguing (1) insufficient evidence supports the felony stalking conviction, (2) the court abused its discretion in admitting evidence that was more prejudicial than probative, and (3) the court erred by imposing the firearm enhancements. We hold that to convict a defendant of felony stalking in violation of RCW 9A.46.110(5)(b)(ii), the State must prove beyond a reasonable doubt that after entry of an order protecting the person being stalked, the defendant follows or harasses that person on two or more separate occasions. Because the evidence established only one occasion of harassment or following in violation of a protective order, we reverse the felony stalking conviction, and remand for entry of an order of dismissal of that conviction and resentencing.¹ In all other respects, we affirm.

FACTS

¶ 2 Beginning in 2010, Aaron Mercedes Johnson and Sara Wojdyla were involved in an on-and-off romantic relationship. During the two-year relationship, Johnson and Wojdyla broke up and then got back together five to ten different times.

¶ 3 In April 2012, Wojdyla broke off the relationship a couple of weeks before her April 25 birthday. Wojdyla told Johnson that they were “done” and to “stop texting me, ... stop calling me, stop contacting me.” But Johnson continued to send Wojdyla text messages asking her to get back together with him. Wojdyla responded to some of the text messages, telling Johnson the relationship was over. Johnson also tried calling Wojdyla a couple of times, but she did not answer.

¶ 4 On Wojdyla's birthday, Johnson sent her four or five text messages asking to see her. Wojdyla refused to see him. When Wojdyla left her apartment building to go on a date with a male friend, Johnson was waiting outside. Johnson told the date Wojdyla was his girlfriend. Wojdyla's date apologized and left. Wojdyla and Johnson argued “for a little bit” before she returned to her apartment.

¶ 5 Over the course of the next several weeks, Johnson sent Wojdyla text messages every day telling her that he loved her. In at least two of the text messages, Johnson threatened to “harm himself.” Wojdyla responded to some of the text messages but did not answer his phone calls.

¶ 6 Beginning at approximately 8:30 p.m. on May 13, Johnson tried to contact Wojdyla. Sometime around midnight, Wojdyla changed her phone number because she “was tired of him contacting” her. Ten minutes later, Johnson e-mailed Wojdyla saying he needed to talk to her and asked her to contact him. Wojdyla did not respond and blocked all e-mail from Johnson.

¶ 7 On May 14, Johnson was waiting outside Wojdyla's apartment door when she went to leave for work. When Wojdyla started to ask Johnson what he was doing there, Johnson put his hand “over [Wojdyla's] mouth” and told her she was “not leaving.” Wojdyla tried to “unlock” her cell phone “[t]o call 911,” but Johnson “yanked it out of [her] hand” and shoved her back into the apartment. Johnson gave Wojdyla her phone so that she could call her supervisor and say that she was going to be late to work. Wojdyla said Johnson was carrying a backpack, and she could see the outline of a “billy club” in the front pocket of his hooded sweatshirt. Wojdyla testified that “[t]here was just an emptiness in [Johnson's] face” like “he had no soul,” and she was “scared.”

¶ 8 Wojdyla sat on a couch in her apartment. Johnson sat on another smaller couch near the door. Wojdyla testified that at some point, Johnson opened his backpack and she saw “a roll of paper towels, what appeared to be a Windex bottle, and some zip ties.” When Johnson pulled the zip ties out of his backpack, Wojdyla asked him what he was “going to do with those.” Johnson “just laughed it off” and told Wojdyla, “I'm going to tie you to yourself.” When Wojdyla asked Johnson if he had his gun with him, Johnson said, “[A]ctually, I do,” and “lifted up his sweatshirt” to show her the gun in a holster.

¶ 9 Wojdyla and Johnson engaged in a lengthy conversation about their relationship. Wojdyla testified that Johnson was “fixated” on the man he saw her with on her birthday. Wojdyla testified that she told Johnson they “were going to be okay, ... that we will be fine; we'll talk this out; we'll get through it.” Wojdyla said that she “got closer to him” and told him they would be together “[b]ecause that's what he wanted. He wanted to be with me.” Johnson asked if Wojdyla wanted to have sex. Wojdyla testified that she thought that if she agreed, he might let her go. Wojdyla said she told Johnson she would have sex with him but that he had to leave the gun in the living room. Johnson took the gun out of the holster and tried to give it to Wojdyla, but she refused to take it. Johnson removed the clip from the gun and set the clip and the gun on the back of a couch in the living room.

¶ 10 Wojdyla testified that she and Johnson went to her bedroom and had sex. Afterward, they left the apartment together. Wojdyla got in her car to drive to work. On the way to work, Wojdyla called her supervisor and her sister and told them about what had happened. Later that day, Wojdyla went to the Lacey Police Department and then went to a local hospital for a sexual assault examination.

¶ 11 Lacey Police Department Detective Jamie Newcomb interviewed Wojdyla and obtained a warrant to search Johnson's residence and the two vehicles in the garage. The police found Johnson in a crawl space under the bedroom floor of his townhouse. The police also found a loaded 9 mm handgun in the crawl space.

¶ 12 Johnson's black BMW was parked in the garage. A backpack in the car contained a knife, zip ties, a roll of duct tape, a handsaw, a roll of paper towels, gloves, a water bottle, a holder for a billy club, a drop cloth, and a hat.

¶ 13 Detective Newcomb arrested Johnson and advised him of his Miranda ² rights. Johnson told Detective Newcomb that he and Wojdyla dated for approximately two years and recently broke up. Johnson admitted sending text messages to Wojdyla “asking her to get back together with him” and that he was at Wojdyla's apartment that morning. Johnson said that he went to Wojdyla's apartment because she changed her cell phone number. Johnson told Detective Newcomb that he waited outside her apartment door, and when she opened the door, he put his hand over her mouth to “keep her quiet.”

[Johnson] said [Wojdyla] opened the door and, upon seeing him, started to cry. He said at some point in there he placed his hand—I believe “up to her mouth” or “around her mouth” was the terminology he used. I believe when we talked about it, I asked him if it was to obstruct the breathing. He said no. I think it was just—he said something along the lines of trying to keep her quiet or to quiet her down.

¶ 14 Johnson denied pushing Wojdyla back into the apartment. “[H]e described it more as a—I think he said ‘hugged.’ ” Johnson admitted that he did not have permission to enter the apartment. Johnson admitted taking Wojdyla's phone so that she could not contact the police. Johnson admitted Wojdyla asked him to leave and he refused, telling her he “wanted to finish the conversation.” Johnson told Detective Newcomb that when Wojdyla “asked him if he had his gun with him,” he “raised his sweatshirt to show her the firearm.” Johnson said he removed his gun at Wojdyla's request and before they had consensual sex. Johnson denied “making any threats to harm” Wojdyla “but he did admit to threatening to harm himself, to kill himself.”

¶ 15 Johnson admitted he had a backpack with him at Wojdyla's apartment. “He called the pack a survival bag.” When Detective Newcomb asked him why he had a handsaw in the bag, Johnson said that it “had fallen off the wall in his garage, so he had placed it in his car.” Johnson said the zip ties and duct tape were for fastening cables around his residence, “but he couldn't really ... answer” why he carried them in his backpack to Wojdyla's apartment.

¶ 16 The State charged Johnson with burglary in the first degree while armed with a firearm, count I; kidnapping in the first degree while armed with a firearm, count II; rape in the first degree while armed with a firearm, count III; and felony harassment, count IV.

¶ 17 At the preliminary appearance on May 15, the court set bail at $50,000 and entered a no-contact order (NCO) preventing Johnson from having any contact with Wojdyla. Johnson posted bond and was released.

¶ 18 In late May, Wojdyla moved out of her apartment in Lacey and went to live with her father near Puyallup. On June 22 while Wojdyla was driving home after work, she noticed a black BMW behind her car. Wojdyla testified that when she took the exit from Interstate 5 to Highway 512, the BMW took the same exit. Wojdyla called 911 and told the operator she believed Johnson was following her, and she was afraid to pull over. After locating a Washington State Patrol (WSP) trooper, the 911 operator told her to drive to a nearby Chevron gas station.

¶ 19 Wojdyla testified that as she turned into the Chevron station, the black BMW suddenly made a left turn into a parking lot on the opposite...