State v. Kibbee
| Decision Date | 15 October 2019 |
| Docket Number | No. 50633-5-II,50633-5-II |
| Parties | STATE OF WASHINGTON, Respondent, v. MICHAEL DAVID KIBBEE, Petitioner. |
| Court | Washington Court of Appeals |
MAXA, C.J. - Michael Kibbee seeks discretionary review of the superior court's affirmance of his district court convictions of violation of a protection order and telephone harassment with a domestic violence designation. The convictions arose from Kibbee's telephone call from a blocked number to his former wife Jan Fox's husband, Lee Fox, in which he stated that he heard Lee1 had a brain tumor and that he hoped Lee would "mother-f***ing die." Report of Proceedings (RP) at 105.
We hold that (1) under RAP 2.3(d), discretionary review is not appropriate for Kibbee's sufficiency of evidence claim regarding his telephone harassment conviction; (2) as the State concedes, the State did not present sufficient evidence to prove that Kibbee's offenses constituted domestic violence because Lee was not a member of Kibbee's family or household;(3) the district court judge did not violate the appearance of fairness doctrine by her comments during arraignment about Kibbee's military service; and (4) Kibbee's appearance of fairness claim regarding his sentencing hearing is moot because he has completed his sentence. Accordingly, we affirm Kibbee's conviction, but we remand for the trial court to strike the domestic violence designations from Kibbee's judgment and sentence.
On January 6, 2016, Lee received a phone call from an unknown number. Lee recognized the voice on the call as Kibbee, although Kibbee apparently did not identify himself. Kibbee told Lee that he heard that Lee had a brain tumor and he hoped Lee would "mother-f-ing die." RP at 105. Kibbee repeated several times that he was glad Lee had a brain tumor and that he wanted Lee to die. Kibbee also called Lee a "mother-f-ing piece of F." RP at 120.
At the time, Lee had a restraining order against Kibbee. Lee called the police to report the violation of the protection order. The State charged Kibbee with violation of a protection order and telephone harassment. The State designated both charges as domestic violence offenses.
Kibbee was arraigned on February 22. At the arraignment, defense counsel noted that Kibbee was a Marine Corps veteran. The district court stated, RP at 7.
The district court noted that Kibbee had a history of violating protection orders. The district court stated, "I don't have any confidence . . . that you're going to follow any order that Itell you at all." RP at 8. The court also stated, RP at 9.
The district court then released Kibbee without bail with the condition that he have no contact with Lee or Jan. The court concluded, "(Indiscernible) you're not some whack job that's going to go out and shoot somebody after this, so I hope you don't." RP at 9.
The jury convicted Kibbee of both charges. The jury also found that Kibbee and Lee were members of the same household or family.
Kibbee appeared at the subsequent sentencing hearing by video monitor from jail. The trial court imposed consecutive 364 days sentences on the two convictions. After completion of the hearing, Kibbee walked out of view of the camera. A corrections officer then walked into the view of the camera. As the officer walked back out of view, the court stated, "You better say goodbye." Video Recording (Dec. 15, 2016) at 34:00 min. The officer then returned and pulled down a sign which read "goodbye" above a big, yellow smiley face. The court laughed and clapped and said, "Bravo." RP at 224.
Kibbee appealed his convictions to superior court. Kibbee argued on appeal that the district court had violated the appearance of fairness doctrine and that he had received ineffective assistance of counsel because defense counsel had not filed an affidavit of prejudice. The superior court ruled that the district court had not violated the appearance of fairness doctrine and Kibbee had not received ineffective assistance of counsel. Accordingly, the superior court denied Kibbee's appeal and affirmed his judgment and sentence. Kibbee did not argue in thesuperior court that the evidence was insufficient to convict him of telephone harassment. Therefore, the superior court made no ruling on that issue.
Kibbee filed a motion for discretionary review, arguing that the district court violated the appearance of fairness doctrine by participating in a practical joke at his expense during the sentencing hearing. A commissioner of this court granted discretionary review on the appearance of fairness issue. Ruling Granting Review (Feb. 6, 2018) at 8. The commissioner also stated that Kibbee was free to raise sufficiency of the evidence arguments in his merits briefing because a defendant may raise a sufficiency of evidence for the first time on appeal. Id.
Defense counsel confirmed at oral argument that Kibbee has now completed his sentence.
Kibbee argues that that State did not present sufficient evidence to prove that he committed telephone harassment. He also argues, and the State concedes, that the State did not present sufficient evidence to prove that the convictions constituted domestic violence offenses. The State argues that discretionary review is not appropriate for Kibbee's sufficiency of evidence claims under RAP 2.3(d).
We agree with the State and hold that discretionary review is not appropriate for Kibbee's sufficiency of evidence claims. However, we exercise our discretion under RAP 1.2(a) to accept the State's concession regarding the domestic violence designation.
Initially, the State argues that discretionary review is not appropriate for Kibbee's sufficiency of evidence claims because these claims do not fall within one of the grounds for granting discretionary review under RAP 2.3(d). We agree.
Our review of a superior court's decision on an RALJ appeal is limited to discretionary review under RAP 2.3(d). RALJ 9.1(h); State v. Chelan County Dist. Ct., 189 Wn.2d 625, 644, 404 P.3d 1153 (2017). We will accept discretionary review only on one of four grounds:
As the commissioner noted in the order granting discretionary review, a defendant may raise a sufficiency of evidence claim for the first time on appeal. RAP 2.5(a)(2). However, even sufficiency of the evidence claims must fall within one of the RAP 2.3(d) categories before we can accept discretionary review of those claims.
Regarding Kibbee's sufficiency of evidence claims, subsection (1) of RAP 2.3(d) is inapplicable because the superior court did not render a decision on Kibbee's sufficiency of evidence claims. Subsection (2) is inapplicable because although sufficiency of the evidence may have constitutional implications, here these claims do not involve significant questions of constitutional law. Subsection (3) is inapplicable because these claims do not involve issues of public interest. And subsection (4) is inapplicable because the district court did not depart from accepted judicial proceedings regarding sufficiency of the evidence.
The order granting discretionary review stated that Kibbee was free to raise a sufficiency of the evidence claim in his briefing. Ruling Granting Review at 8. To the extent that this statement can be interpreted as granting discretionary review on the sufficiency of the evidence claims, the commissioner erred. We hold that discretionary review on the sufficiency of the evidence claims was improvidently granted.
We decline to consider Kibbee's sufficiency of evidence claim regarding his telephone harassment claim. However, the State concedes that there was insufficient evidence to support the domestic violence designations. Therefore, we exercise our discretion under RAP 1.2(a) to consider that claim.
Under RCW 9.94A.525(21)2, a misdemeanor conviction for an offense that was designated as domestic violence may count against a defendant's offender score in a subsequent sentencing for domestic violence. For an offense to be designated as a crime of domestic violence the defendant and victim must be members of the same family or household. RCW 10.99.020(5)3. RCW 10.99.020(3) defines members of the same family or household as people who are spouses, former spouses, related by blood or marriage, have a child in common, reside together or have resided together in the past, are in a dating relationship, or have a biological or legal parent-child relationship.
Here, Lee and Kibbee were not family or household members as defined in RCW 10.99.020(3), and the State did not present any evidence that Kibbee and Lee ever were family or household members. Lee testified that Kibbee was his wife's former husband. But the State concedes that a relationship with someone who has a family or household relationship with the defendant does not bring Lee within the meaning of RCW 10.99.020(3).
Accordingly, we...
To continue reading
Request your trial