State v. A.M.W.C.

• Decision Date: 13 June 2022
• Docket Number: 82431-7-I
• Parties: STATE OF WASHINGTON, Respondent, v. A.M.W.C., Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. A.M.W.C., Appellant.

No. 82431-7-I

Court of Appeals of Washington, Division 1

June 13, 2022

UNPUBLISHED OPINION

Coburn, J.

A.C.^[1] appeals his conviction for malicious mischief in the third degree through accomplice liability for participating in a rock-throwing incident resulting in a broken window. A.C argues that his conviction was supported by insufficient evidence and that the trial court wrongly based the conviction on conspiracy grounds and erred in admitting a police officer's statements. We affirm.

FACTS

On May 10, 2020, at approximately 3:30 a.m., officers from the Arlington Police Department responded to a report of an activated security alarm at an elementary school. Officer Alex Donchez went to the school and saw a cracked window and a rock on the ground. The school groundskeeper testified that the broken window that morning was "fresh damage" and that a broken window would have triggered the security alarm.

Another officer, Officer Rory Bolter, drove toward the school, and saw three juveniles walking away from the school area. As he activated his patrol car lights, he saw them scatter: two running toward the west up a hillside and another running to the east. Bolter radioed other officers the direction of the juveniles' movement. In another patrol car, Officer Justin Clark Olson saw two individuals emerge from the woods running. The two teens, later identified as A.C. (age 14) and I.M.J. (age 13), eventually complied with his request to stop.

Olson was joined by Officer Joshua Fox and they separated A.C. and I.M.J. for questioning after reading them their Miranda^[2] rights. Fox testified that

[A.C.] basically told me - initially, it was him and the other individual that I observed with Officer Olson, who were walking around the streets of Arlington. They decided hey let's go through [sic] rocks at the school, at one of the windows. So that's what they did. They threw the rocks at the windows. When the windows broke, they said they freaked out a little bit, and it wasn't until they noticed the police officer that they chose to run from the location.

A.C did not object to this testimony. Olson also questioned A.C. and A.C. told him that I.M.J. was there with him and they had been "hanging out" at the school with two other individuals. Fox testified that A.C. eventually told him there were five people involved. After questioning, A.C. and I.M.J. were released to their parents.

A.C. was charged with one count of malicious mischief in the third degree, a gross misdemeanor.

At a bench trial in February 2021, Fox could not positively identify A.C. as the youth he encountered in May and stated, "[h]onestly, ma'am it's been almost a year. I don't remember what their faces looked like." But Fox asserted that the teen he spoke with "appeared similar in appearance" to A.C. in the courtroom. Olson testified that he recognized the individual on trial as one of the two juveniles he and Fox detained but could not remember whether he was A.C. or I.M.J. Defense counsel confirmed on the record that the person on trial was A.C.

Defense counsel cross-examined Fox about his recollection of A.C.'s statement made the night of the incident:

Q. So in your report, when you are summarizing your conversation with A.C., you're paraphrasing what he said. Correct?

A. How so? In what -

Q. Well, I'm asking you, when you wrote your report, you're writing a summary of your interaction. Correct?

A. Yes.

Q. Okay. And there aren't direct quotation marks, are there?

A. Right.

Q. So you're paraphrasing what you recall of your conversation. Correct?

A. What he told me, yeah. . . .

Q. Do you recall if, when you spoke to A.C. about what happened that night, he used the words, "They all decided to throw rocks at a window," or, "We"?

A. I don't remember the exact verbiage.

The court found A.C. guilty of malicious mischief through accomplice liability under RCW 9A.08.020(3). The court ruled:

The Defense urges that there's little to no information to find A.C. guilty beyond a reasonable doubt, and I would concur if we are trying to make him solely responsible for this crime. There's no direct evidence that he in fact threw this rock. But what we have through the auspices of accomplice liability is a group of individuals, juvenile kids, who decided that they wanted to throw rocks at the school.

They threw rocks at the school, and they committed this breaking of the window, which meets the definition of malicious mischief in the third degree. The testimony is - and I find it persuasive - that, when questioned about what he was doing, A.C. indicated that they all decided to throw rocks.

And while not a direct confession or an implication of himself, it is a direct confession of a group or conspiracy of individuals who accomplished the purpose set out, which was to commit a crime, throwing rocks at the school. And under that theory, under 9A.08.020(3), I do find A.C. guilty beyond a reasonable doubt of the crime of malicious mischief in the third degree for throwing rocks or participating in the throwing of rocks and causing the damage at Eagle Creek Elementary School[.]

A.C. appeals.

DISCUSSION

A.C.'s Statements to Officer Fox

A.C contends that the trial court "erred in admitting the hearsay statement, 'they all decided to throw rocks.'"

We first clarify what evidence was actually admitted. While the trial court did find that A.C. stated to Fox that "they all decided to throw rocks," Fox clarified that his testimony was a summary and paraphrasing of what A.C. said and not a direct quote. Neither does the statement accurately quote Fox's testimony at trial. Fox paraphrased that A.C. explained he and I.M.J. were walking around the streets of Arlington and that they decided to go throw rocks at one of the windows at the school and then did throw rocks at the windows. Thus, while the record does not support a finding that A.C. used the exact words, "they all decided to throw rocks," the record does support that Fox testified to the substance of what A.C. stated to Fox about the rock throwing.

A.C. maintains that because Fox was unable to positively identify A.C. in court as the teen who made the statement to him, the statement was inadmissible under ER 801(d)(2). We disagree.

This court reviews a trial court's evidentiary rulings for an abuse of discretion. State v. Williams, 137 Wn.App. 736, 743, 154 P.3d 322 (2007). "A court abuses its discretion when its evidentiary ruling is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons."' Id. The appellant has the burden to demonstrate an abuse of discretion. Id.

Hearsay, statements made by someone other than the person testifying, offered to prove the truth of the matter asserted, is inadmissible at trial unless it meets an exception. ER 801(c), ER 802. A statement is not hearsay if it meets the "party-opponent" hearsay exclusion: a statement "offered against a party" and the "party's own statement." ER 801(d)(2).

As an initial matter, the State argues that A.C. waived any error regarding alleged hearsay because A.C. failed to object at trial. Though appellate courts will not generally review an unpreserved error, they may exercise discretion to do so. State v. Blazina, 182 Wn.2d 827, 834, 344 P.3d 680 (2015); RAP 2.5(a) ("The appellate court may refuse to review any claim of error which was not raised in the trial court."). We elect to briefly address A.C.'s hearsay claim.

Prior to trial, A.C. raised a motion in limine to exclude hearsay from police officers who might testify to "the nature of his understanding" of discussions with a declarant, rather than testifying to what the declarant "actually said." The court denied the motion, explaining:

That's not a proper motion in limine. That's an evidentiary ruling. If I exclude all hearsay, that means the State can never then find an exception to the hearsay rule and get some admitted, so it's not a proper motion in limine. It's an evidentiary ruling. . . . We'll take those up as they come along.

When evidentiary rulings are made pursuant to motions in limine, no further objection is required at trial.^[3] State v. Heutink, 12 Wn.App. 2d 336, 355, 458 P.3d 796, review denied, 195 Wn.2d 1027, 466 P.3d 775 (2020). But when the trial court refuses to rule or makes only a tentative ruling subject to evidence developed at trial, the parties are under a duty to raise the issue at the appropriate time with proper objections at trial. Id.

A.C. elected not to object to Fox's testimony on the basis of hearsay and instead chose to cross-examine Fox and question, not A.C.'s identity as the speaker, but whether Officer Fox could remember exactly what A.C. said that morning.

During his cross-examination of Fox, A.C. focused on whether Fox might have misrepresented what A.C. said because the officer did not transcribe verbatim what A.C. told him. Although Fox was unable to physically recognize A.C. eight months after their conversation in the patrol car, he testified without hesitation that he spoke with A.C. on May 10 and described what A.C. told him that morning. Olson indicated that he recognized the respondent at trial was one of the two juveniles he and Fox detained on May 10 but could not remember if he was A.C. or I.M.J. It was undisputed that A.C. was the individual on trial. In fact, his counsel even clarified that for Olson. A.C., who did not testify at trial, did not dispute his identity or that Fox spoke with him on the morning of May 10. The record establishes the statements Fox testified about were statements made by A.C. and offered against A.C. Thus we conclude that A.C. fails to establish that the trial court admitted inadmissible hearsay.

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