State v. Lobe

• Decision Date: 25 September 2007
• Docket Number: No. 34227-8-II.,34227-8-II.
• Citation: 167 P.3d 627,140 Wn. App. 897
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. David Jonathan LOBE, Appellant.

167 P.3d 627

140 Wn. App. 897

STATE of Washington, Respondent, v. David Jonathan LOBE, Appellant.

No. 34227-8-II.

Court of Appeals of Washington, Division 2.

September 25, 2007.

Patricia Anne Pethick, Attorney at Law, Tacoma, WA, for Appellant.

James C. Powers, Thurston County Prosecuting Attorney Ofc, Olympia, WA, for Respondent.

PENOYAR, J.

¶ 1 The State charged David Lobe with violating a no-contact order protecting Tara Pappas, his ex-girlfriend. Before trial, Lobe had conversations with both Pappas and a mutual acquaintance, Ericka Attouf, instructing them to withhold information from the prosecution and/or stay away from court proceedings. Lobe was convicted of (1) violating Pappas's no-contact order, (2) committing a third violation of a no-contact order, (3) and two counts of witness tampering. Lobe appeals, arguing that (1) the evidence was insufficient to support his convictions for witness tampering, and (2) the court's failure to give a unanimity instruction requires reversal. The evidence was sufficient to support Lobe's convictions, but we reverse on the witness tampering charges due to lack of a specific jury unanimity instruction.

FACTS

¶ 2 On May 16, 2005, Olympia Police Officer Brian Henry responded to a domestic violence call placed from a Thurston County courthouse pay phone. When he arrived at the courthouse, he found Pappas crying, with red marks on her face. She informed Officer Henry that she had been visiting with Lobe across the street at his apartment, and he had assaulted her. Officer Henry then went to Lobe's apartment and arrested him for violation of a no-contact order/domestic violence felony. Three days later, Lobe was charged with assault in violation of a no-contact order.

¶ 3 Pappas and Lobe dated for a short time in 2003, after which time she obtained a no-contact order to protect her and her son. They restarted their relationship in March 2005. She moved in with Lobe, but split her time between Lobe's apartment and her friend's (Attouf's) house "[b]ecause . . . there was a no-contact order." Report of Proceedings (RP) at 84-86. After Lobe attacked her, Pappas moved to Lewis County, but remained in contact with Attouf.

¶ 4 Attouf later testified that Sara Gregoire, Lobe's new girlfriend, called her around July 18, 2005. During the call, Attouf informed Gregoire that she had a voice mail from an attorney trying to get Pappas's new contact information. Lobe then got on the phone and warned Attouf that if she gave Pappas's contact information to "them" and Pappas did not appear in court, "that she [Pappas] would be in trouble and that he [Lobe] didn't want to see her get in trouble." RP at 140. "[H]e basically was saying make sure that she doesn't go to court because it's just — it's going to go away . . . and just basically to not give the contact information." RP at 140-41.

¶ 5 Pappas also testified that on July 21, 2005, Gregoire called her and then put Lobe on the phone. According to Pappas, Lobe then told her to tell Attouf to conceal Pappas's contact information from the prosecuting attorney. Lobe also asked Pappas not to show up to court, and "[h]e kept repeating it to [her]." RP at 106. After speaking with Lobe, Pappas called Attouf and informed her of what Lobe had said.

¶ 6 On October 26, 2005, Lobe was charged by third amended information with violation of a no-contact order — assault (count I), third or subsequent violation of a no-contact order (count II), and two counts of witness tampering (count III — tampering with Pappas; count IV — tampering with Attouf). A jury trial followed.

¶ 7 The jury was given the following to-convict instruction:

Instruction No. 13

To convict the defendant of the crime of tampering with a witness, as charged in Count III, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 21st day of July, 2005, the defendant attempted to induce a person, Tara Pappas, to testify falsely or, without right or privilege to do so, withhold testimony or absent himself or herself from any official proceeding or withhold from a law enforcement agency information which he or she had relevant to a criminal investigation; and

(2) That the other person was a witness or a person the defendant had reason to believe was about to be called as a witness in any official proceedings or a person whom the defendant had reason to believe might have information relevant to a criminal investigation; and

(3) That the acts occurred in the State of Washington.

Clerk's Papers (CP) at 86.

¶ 8 For count IV (tampering with Attouf), the jury was given a nearly identical to-convict instruction, changing only the name of the witness and charge number. The court did not give a unanimity instruction.

¶ 9 The jury convicted Lobe on all counts, but entered a special verdict finding that the violation of the no-contact order was not an assault. The court sentenced Lobe within the standard range for each offense, with all of the sentences running concurrently. This appeal followed.

ANALYSIS

I. Sufficient Evidence

¶ 10 Lobe first argues that the evidence presented was insufficient to prove beyond a reasonable doubt that he committed witness tampering with respect to Attouf (as charged in count IV). Specifically, he claims that the State did not prove either (1) that Attouf was to be called as a witness, or that Lobe had reason to believe that she would be called as a witness,¹ or (2) that Lobe directed Attouf to testify falsely, withhold information, or absent herself from an official proceeding.

¶ 11 The State concedes that no evidence showed Lobe attempting to induce Attouf to testify falsely or absent herself from the proceeding, but it argues that the evidence was sufficient to convince a reasonable trier of fact that Lobe had reason to believe that Attouf might have information relevant to the investigation and attempted to induce her to withhold that information.

¶ 12 The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in the State's favor and interpreted most strongly against the defendant. Salinas, 119 Wash.2d at 201, 829 P.2d 1068.

¶ 13 Attouf testified that, as she told Gregoire that the prosecution had left her a message (asking for Pappas's updated contact information), she could hear Gregoire relaying that information to Lobe. After Lobe heard this information, he personally spoke to Attouf and ordered her not to tell the prosecution how to contact Pappas.

¶ 14 Viewing this evidence in the light most favorable to the prosecution, it is clear that a rational trier of fact could have found Lobe guilty of witness tampering beyond a reasonable doubt. He had reason to believe that Attouf had information relevant to the prosecution, as he had just heard that the prosecution contacted her to attempt to locate the main witness in the case (Pappas). He then attempted to persuade her to withhold that information. The evidence was sufficient to support a conviction under the third alternative for witness tampering, an attempt to induce a person to withhold information from a law enforcement agency. There was clearly sufficient evidence to convict Lobe on witness tampering.

II. Unanimity Instruction

¶ 15 Next, Lobe argues that his witness tampering convictions (counts III and IV) should be overturned because the trial court failed to give a unanimity instruction. The State concedes that it failed to present evidence supporting each alternative means of witness tampering, but it contends that the lack of a unanimity instruction was harmless because the prosecutor only presented substantial evidence of two means for count III (asking Pappas to absent herself from the proceeding and withhold information from the prosecutor) and one means for count IV (asking Attouf to withhold information).

¶ 16 There are three alternative means of committing witness tampering — attempting to induce a person to (1) testify falsely or withhold testimony, (2) absent him- or herself from an official proceeding, or (3) withhold information from a law enforcement agency. RCW 9A.72.120(1)(a)-(c). For both count III and count IV, all three alternatives were charged and included in the jury instructions. On count III, we agree with the State that substantial evidence and argument was provided on two of the three alternative means. However, on count IV, substantial evidence was presented only on one means (withholding information), but the prosecutor referred to an alternative means (absenting herself from the proceeding).

¶ 17 Criminal defendants in Washington have a right to a unanimous jury verdict. Wash. Const. art. 1, § 21. This right includes the right to an expressly unanimous verdict. Wash. Const. art. 1, § 21 states: "The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases. . . ." Allowing juries of less than 12 in courts not of record creates a right to 12-member juries in courts of record. Seattle v. Filson, 98 Wash.2d 66, 70, 653 P.2d 608 (1982), overruled on other grounds by In the Matter of Eng, 113 Wash.2d 178, 776 P.2d 1336 (1989). Additionally, by allowing verdicts of nine or more only in civil cases, the final clause implicitly recognizes a unanimous verdict requirement in criminal cases. State v. Stephens, 93 Wash.2d 186, 190, 607 P.2d 304 (1980); see also State v. Kitchen, 110 Wash.2d 403, 409, 756 P.2d 105 (1988); State v. Workman, 66 Wash. 292, 294-95, 119 P. 751 (1911). In certain situations, the right to...