State v. McPherson
| Decision Date | 09 January 2014 |
| Docket Number | 30805-7-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. KIRT ANTHONY MCPHERSON, Appellant. |
UNPUBLISHED OPINION
This appeal challenges the sufficiency of the evidence to support three of Kirt McPherson's six convictions from an incident occurring January 27, 2012, and also the sentence imposed by the court. We reverse one conviction and remand for resentencing.
A jury convicted Mr. McPherson of six counts: second degree malicious mischief, reckless driving, and four counts of second degree assault with a deadly weapon. This appeal challenges the malicious mischief conviction and two of the assault counts.
Mr McPherson's girl friend, Ms. Tuck, was friends with Ms Demintieff. Tuck brought her daughter, T.M., to play with Ms Demintieff 's daughter. McPherson later picked up T.M and brought her home, but Tuck spent the night at Ms. Demintieff s house. McPherson picked her up the following morning.
Around 4:20 pm that afternoon, Ms. Tuck called Ms. Demintieff and requested a ride. Ms. Demintieff put her two children in her boyfriend's track and went to pick up Ms. Tuck. When she arrived at Mt. Adams highway and Ladiges Lane, Ms. Tuck was standing in the snow on the side of the road next to a fence. Kirt McPherson was there in his track.
Mr. McPherson was stopped initially, but then he drove toward Ms. Demintieff, turning onto a road. Ms. Demintieff indicated that by the way he turned, he seemed angry. Ms. Demintieff continued driving past Ms. Tuck to allow Ms. Tuck more time to walk, Ms. Demintieff then went back to the intersection of Mt. Adams and Ladiges, and waited. Ms. Demintieff saw Ms. Tuck, much where she was before, screaming and appearing terrified. Mr. McPherson was revving the motor of his truck. He again drove toward Ms. Demintieff a ways and then stopped 20 to 25 feet away from her truck. Ms. Demintieff testified that her son had become upset. After Mr. McPherson stopped, he again began to rev his motor, and yelled at Ms. Demintieff, though she couldn't hear what he said. At that point he drove at Ms. Demintieff s truck "fairly fast" and hit the front driver's side of her truck, then backed up and yelled at her to "get the hell out of there." Demintieff left.
The impact damaged the late model Ford F250 truck Ms. Demintieff was driving. There was a dent in the front driver's side fender, the front driver's side tire was damaged, the bumper was shoved over, and the tie rod was bent. The truck was never repaired, but rather sold "as-is." No testimony concerning the cost of repairs or of the diminution of value to the truck was presented to the jury. The State argued that the jury could infer from its own experience that the amount of damage was over $750.
After receiving a standard range sentence, Mr. McPherson timely appealed to this court.
The sole issues we will address involve Mr. McPherson's challenges to the sufficiency of the evidence of the malicious mischief charge and the two counts involving Ms Demintieff s children.[1] We reverse the former count and affirm the latter.
Well settled case authority governs review of this issue. A reviewing court does not weigh evidence or sift through competing testimony. Instead, the question presented is whether there is sufficient evidence to support the jury's determination that each element of the crime was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. Id.
Malicious Mischief. As charged here, to establish second degree malicious mischief the State was required to prove that Mr. McPherson knowingly and maliciously caused physical damage in an amount exceeding seven hundred fifty dollars ($750) to the property of another. It is conceded that no evidence of valuation was presented to the jury. Instead, the case was argued to the jury on the notion that the damages described were sufficient for the jury in its collective experience to conclude were in excess of the statutory limits. The jury was also instructed on the included offense of third degree malicious mischief for which the State was not required to prove any damage value. The jury did not reach that instruction because it found Mr. McPherson guilty on the greater offense.
Under the malicious mischief statute, "damages" includes both "its ordinary meaning" as well as "any diminution in the value of any property as a consequence of an act." RCW 9A.48.010(l)(b). Although we share the jury's view that the described damages undoubtedly exceeded $750, we believe that the State was still required to present evidence of valuation. It could have been in the form of damage repair estimates from a body shop or insurance adjustor, or it could have been evidence showing the diminution in value such as the sale price of the truck "as is" compared with the book value of the truck without the damages.
Our case law confirms that valuation cannot be established by speculation. The value damaged by the malicious act "is a true element" of malicious mischief "that must be proved beyond a reasonable doubt." State v. Timothy £, 107 Wn.App. 784, 789, 27 P.3d 1263 (2001). Proof of value typically comes in the form of testimony from witnesses. State v. Claybourne, 14 Wn.App. 314, 541 P.2d 1230 (1975). While a stolen (or damaged) item has evidentiary value to the jury, it does so only as a foundation for the proof of its valuation. Id. at 315-16 (citing State v. Cohen, 143 Wash. 464, 255 P. 910(1927)). The Clayboume court also recognized:
Nor, in the absence of any proof of value, could the jury be permitted to speculate on this point merely from the appearance of the articles.
Id. at 315 (citing United States v. Wilson, 284 F.2d 407 (4th Cir. I960)).
In other words, while evidence may establish what or how badly an item was damaged, the valuation of that damage is a separate item of proof. There needed to be some proof of how much the value of the truck was diminished by the injuries inflicted on it, or evidence of what repairing the damage would have cost. RCW 9A.48.010(l)(b). Because that was...
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