State v. Mills

• Decision Date: 10 March 2003
• Docket Number: No. 49883-5-I.,49883-5-I.
• Citation: 116 Wn. App. 106,116 Wash. App. 106,64 P.3d 1253
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Morning Laray MILLS, Appellant.

64 P.3d 1253

116 Wn. App. 106

116 Wash. App. 106

STATE of Washington, Respondent, v. Morning Laray MILLS, Appellant.

No. 49883-5-I.

Court of Appeals of Washington, Division 1.

March 10, 2003.

Jason B. Saunders, Washington Appellate Project, Seattle, WA, for Appellant.

Julie Dee Cook, King County Deputy Pros. Atty., Seattle, WA, for Respondent.

PUBLISHED IN PART

AGID, J.

The State charged Morning Mills with felony harassment. The crime of misdemeanor harassment is elevated to a felony when a jury finds the defendant threatened to kill his or her victim. In this case, the to convict instruction contained all the elements of harassment, as defined by statute. A special verdict instruction and accompanying form were used to instruct the jury to decide, beyond a reasonable doubt, whether or not Mills threatened to kill her victim. After the jury found her guilty of harassment, it also found that she had threatened to kill the victim. She was therefore convicted of the felony. Mills contends this was error because the trial court omitted an element of the crime from the to convict instruction. We conclude the trial court properly instructed the jury when it used a special verdict form to determine whether the jury found Mills guilty of the factor that elevated the crime to a felony. The instructions set forth all of the elements of the crime charged and specifically required that both the crime of harassment and the enhancing factor be found beyond a reasonable doubt by a unanimous jury. Mills also contends the evidence was insufficient to prove her guilt. Because there was substantial evidence to support the conviction, we affirm.

FACTS

Billy Edwards has known Morning Mills and her family for years. Mills and Edwards were involved in a romantic relationship and had a child. When Mills' relationship with Edwards later deteriorated, they stopped dating and Edwards began dating other women. On one occasion, Mills stabbed one of Edwards' former girlfriends and served 33 days in jail. Mills and Edwards stay in contact because of their child.

In June 1999, Edwards began a romantic relationship with Jonnika Lawrence, and a year later they moved in together. On June 7, 2000, at approximately 1:24 a.m., Lawrence and Edwards were asleep when the telephone rang. Lawrence answered it and recognized Mills on the other end of the line. Mills told her, "I told you about messing with him." The defendant then told Jonnika to "shut up" and "look at your Altima, go look at your Altima." Mills then hung up.

Hearing Lawrence on the phone, Edwards awoke and asked who called. Lawrence was frightened and upset by the call and talked to Edwards about it. Lawrence then went outside and saw that her car's front window was shattered and the back window was completely destroyed. She found a large rock on the backseat. Lawrence returned to the house and called the police. While they were waiting for the police to arrive, Edwards told Lawrence that Mills had assaulted one of his former girlfriends with a knife.

After talking to the police, Lawrence checked her phone messages and discovered a message left at 3:24 a.m.

Bitch, you fuckin' bitch. I'm tired of playin' around with you. Watch, I'm gonna get a year tops cause I murder your ass. I stabbed somebody for messing with Bill, I got 33 days. Now watch what I'm gonna get for murder. Bitch, you think I'm fuckin' playin'. You get the motherfucker to my house. Bitch, you didn't wanna call me back. Yeah, I'm a I'm a show you what I'm a gonna do. I'm a kill you suicide, you need to know who the fuck I am. I'm gonna kill you in the back of your head, I'm going to walk ... slit your fuckin' neck, you dumb ass bitch. That's why I just found out what apartment you live in. Now I'm coming over now.

Lawrence was extremely frightened by the message and believed Mills would carry out her threat. Both Lawrence and Edwards listened to the message and thought they recognized the voice as Mills'. Lawrence believed the caller was Mills because of what the message said.

On June 3, 2000, Mills left a phone message with her phone number, telling Lawrence to call her "to discuss ... our friend Billy Edwards." Both Lawrence and Edwards listened to this message and recognized Mills' voice as the person who made the call. Lawrence did not return the call.

The State charged Mills with second degree malicious mischief for the damage to the car, harassment for threatening to cause bodily injury to Lawrence, and felony harassment for threatening to kill her. At trial, Lawrence testified that she was unable to positively identify Mills' voice on the 3:24 a.m. call on June 7, but she believed Mills made it for several reasons. During the message the caller spoke in the first person, referred to the June 3, 2000 message by asking her why she had not returned her call to discuss Edwards, talked about stabbing another woman, and told Lawrence that she knew where she lived. Lawrence could not think of any other person who could have made that phone call.

Kent Police Detective David Trogden testified that after listening to the telephone messages and speaking with Lawrence and Edwards, he telephoned Mills using the number she left on the June 3 message. The person who answered the phone said she was Morning Mills and confirmed her birth date, but she denied leaving a threatening message. She also told Detective Trogden that she served 33 days for stabbing someone in the head for "messing with" Edwards, and Trogden confirmed that Mills had done so.

The jury found Mills guilty, and Mills appeals.

DISCUSSION

I. To Convict Instruction

Mills contends she was deprived of due process because the to convict jury instruction for felony harassment omitted the "threat to kill" element. The State argues that (1) she waived her right to appeal under RAP 2.5(a) by failing to object to the instruction below and (2) in any case the trial court instructed the jury on all of the crime's elements. Failure to instruct the jury on every element of the crime charged is an error of constitutional magnitude that may be raised for the first time on appeal.¹ We review a challenged jury instruction de novo.² Jury instructions are to be read as a whole, and each one is read in the context of all others given.³ Instructions are sufficient if they properly inform jurors of the applicable law, are not misleading, and permit each party to argue his or her theory of the case.⁴

At the conclusion of the testimony, the trial court instructed the jury on the law. For count 1, felony harassment, the court instructed the jury that in order to find Mills guilty, each of the following elements must be proved beyond a reasonable doubt (instruction 8):

(1) That on or about June 7, 2000, the defendant knowingly threatened:

... to cause bodily injury immediately or in the near future to Jonnika Lawrence...[;]

. . . .

(2) That the words or conduct of the defendant placed Jonnika Lawrence in reasonable fear that the threat would be carried out;

(3) That the defendant acted without lawful authority; and

(4) That the acts occurred in the County of King.⁵

The court also gave the jury the following special verdict instruction (instruction 9), which read:

If you find the defendant guilty of harassment, as charged in count 1, you will complete the special verdict form provided to you for this purpose. Since this is a criminal case, all twelve of you must agree on the answer to the special verdict. If you find the defendant not guilty of harassment, do not use the special verdict form.

If you find that the State has proved beyond a reasonable doubt that the defendant's threat to cause bodily harm was a threat to kill the person threatened or another person, it will be your duty to answer the special verdict "yes", as to count I.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt that the defendant's threat to cause bodily harm was a threat to kill the person threatened or another person, it will be your duty to answer the special verdict "no", as to count 1.

And the court gave the jury an accompanying special verdict form for count 1, which read:

THIS SPECIAL VERDICT IS TO BE ANSWERED ONLY IF THE JURY FINDS THE DEFENDANT GUILTY OF HARASSMENT.

We, the jury, return a special verdict by answering as follows, as to Count 1:

Did the defendant's threat to cause bodily harm consist of a threat to kill the person threatened or another person?

Mills argues that omitting the "threat to kill" element from the to convict instruction was fatal and requires reversal. The State asserts there was no error because the court's instructions included a special verdict instruction and accompanying form including that element and instructions 8 and 9 contained all of the crime's elements. We agree.

As a general rule, the to convict instruction need not specify every element of the charged crime in every case.⁶ In State v. Emmanuel,⁷ the State charged the defendant with bribery, and the court gave a detailed to convict instruction including all but one of the crime's elements. The Supreme Court held that this instruction was deficient, reasoning that by undertaking to specifically tell the jury that they could convict the defendant if they found that four elements of the crime had been proven, the judge provided "a yardstick by which the jury were [sic] to measure the evidence in determining appellant's guilt or innocence of the crime charged."⁸ The Emmanuel court stated that the instruction purported to include all the elements, and the jury was not required to search other instructions to see if another element alleged in the information should have been added.⁹ Thus, if the to convict instruction acts as a yardstick for measuring the evidence, it must include a complete summation of the law.¹⁰ Where a trial court has not undertaken to provide a yardstick to the jury, the instructions are to be read as a whole and each instruction is to be...