State v. Newcomb

• Decision Date: 17 February 2011
• Docket Number: No. 40056–1–II.,40056–1–II.
• Citation: 160 Wash.App. 184,246 P.3d 1286
• Parties: STATE of Washington, Appellant,v.Scott Ross NEWCOMB, Respondent.
• Court: Washington Court of Appeals

160 Wash.App. 184

246 P.3d 1286

STATE of Washington, Appellant,

v.Scott Ross NEWCOMB, Respondent.

No. 40056–1–II.

Court of Appeals of Washington, Division 2.

Feb. 17, 2011.

David Bustamante, Attorney at Law, Raymond, WA, for Appellant.Jordan Broome Mccabe, Attorney at Law, Bellevue, WA, for Respondent.WILLIAMS, J.P.T.¹

[160 Wash.App. 187] ¶ 1 The State appeals the trial court's order granting Scott Newcomb's pretrial motion to dismiss a charge of first degree malicious mischief. We reverse and remand.

Facts

¶ 2 Newcomb's mother owns land subject to a roadway easement that provides the sole means of access to Tim Kredlo's neighboring property. Kredlo bought his property from Peter Stone, Amy Stone, and Ricki Bayne in late 2005.

¶ 3 In 2004, the Stones and Bayne sued Newcomb and his mother over the Stones' right to use the easement and Newcomb's alleged interference with that right. The trial court found that Newcomb's mother owned property that was subject to a nonexclusive easement for purposes of ingress, egress, and utilities, and that Newcomb had interfered with the use of that easement by felling a tree to block it, piling brush upon it, digging it out, tying a rope across it, and threatening Amy Stone if she attempted to improve it.

¶ 4 The trial court entered a decree permanently enjoining the Newcombs from interfering with the Stones' use or improvement of the easement or with any such use by their successors in interest. Kredlo and his wife bought the Stones' property a month later.

¶ 5 The following summer, Kredlo added a gravel road with a construction value of $12,000 to the easement. Shortly thereafter, Newcomb told Kredlo that the road was illegal. Kredlo returned to the property a few months later and found Newcomb on a payloader scraping gravel from the road. Most of the gravel had been removed from about 800 feet of the roadway. After reporting the incident to the sheriff, Kredlo returned to the property and found that the remaining gravel had been removed and piled along the road, that the roadbed had been dug down and churned to a depth of two to three feet, and that three large stumps or root balls had been placed in the roadway, making it impassable. There were tire tracks leading from the area to the Newcomb property. Kredlo provided the sheriff's office with a repair estimate of $7,263.56.

¶ 6 The State charged Newcomb with one count of first degree malicious mischief. Newcomb responded by filing a motion to dismiss under State v. Knapstad, 107 Wash.2d 346, 356, 729 P.2d 48 (1986). Newcomb argued in part that the facts could not support the malicious mischief charge because Kredlo did not own any portion of the easement. The State's response included copies of the civil decree enjoining Newcomb's interference with the easement as well as the supporting findings of fact and conclusions of law. The State argued that Kredlo had a property interest in the easement and its improvements that supported the malicious mischief charge.

¶ 7 The trial court agreed with Newcomb and granted the motion to dismiss. The State now appeals that dismissal.

Discussion

A. Standard of Review

¶ 8 In a Knapstad motion, a defendant alleges by sworn affidavit that there are no material disputed facts and that the undisputed facts do not establish a prima facie case of guilt.² Knapstad, 107 Wash.2d at 356, 729 P.2d 48. When evaluating a Knapstad challenge to the sufficiency of the evidence, the trial court considers the evidence and reasonable inferences therefrom in the light most favorable to the State. State v. Jackson, 82 Wash.App. 594, 608, 918 P.2d 945 (1996), review denied, 131 Wash.2d 1006, 932 P.2d 644 (1997). Since the court is not to rule on factual questions, no findings of fact should be entered. Knapstad, 107 Wash.2d at 357, 729 P.2d 48. On appeal, we conduct a de novo review of a trial court's decision to dismiss and again view the facts and inferences in the light most favorable to the State. State v. O'Meara, 143 Wash.App. 638, 642, 180 P.3d 196 (2008). Our role in assessing the propriety of granting a Knapstad motion does not include deciding which version of events is correct. State v. Groom, 133 Wash.2d 679, 693, 947 P.2d 240 (1997). “The issue is whether the State has sufficiently countered Defendant's claim that there are no material disputed facts and that the undisputed material facts do not establish a prima facie case of guilt.” Groom, 133 Wash.2d at 693, 947 P.2d 240.

¶ 9 In responding to Newcomb's motion, the State attached a copy of the civil decree entered against him as well as the supporting findings of fact. Newcomb did not object to these materials below, but he appears to argue on appeal that the State is citing inadmissible hearsay by referring to those findings. This admissibility challenge is made clear only in his statement of additional authority and is waived. See State v. Smith, 155 Wash.2d 496, 501, 120 P.3d 559 (2005) (failure to raise hearsay objection below waives it on appeal); State v. Freigang, 115 Wash.App. 496, 508, 61 P.3d 343 (2002) (Morgan, J., concurring) (when defendant challenges sufficiency with a Knapstad motion, the trial court needs to determine admissibility “to the extent it is contested” and then turn to sufficiency), review denied, 149 Wash.2d 1028, 78 P.3d 656 (2003).

B. First Degree Malicious Mischief

¶ 10 The State argues initially that material disputed facts bar Newcomb's Knapstad motion because he disputes the existence of the easement and does not concede that he damaged it. Newcomb responds that, for the purposes of his motion, he is conceding that the State could prove he inflicted damage on a portion of his land that was subject to an easement in favor of a neighboring parcel owned by Kredlo. He argues, however, that in doing so he did not damage the “property of another,” as the malicious mischief statute requires, and that the State's prosecution therefore fails as a matter of law.³

¶ 11 A person is guilty of malicious mischief in the first degree if he knowingly and maliciously causes physical damage to the property of another in an amount exceeding $1,500. Former RCW 9A.48.070(1)(a) (1983). “Property of another” is property in which the defendant possesses anything less than exclusive ownership. RCW 9A.48.010(1)(c); 13A Seth A. Fine, Washington Practice: Criminal Law § 1702, at 203 (2d ed. Supp.2010–11). Consequently, a person can be convicted of malicious mischief for damaging any property in which another person has a possessory or proprietary interest. 13A Seth A. Fine & Douglas J. Ende, Washington Practice: Criminal Law § 1704, at 357 (2d ed.1998); see also State v. VanValkenburgh, 70 Wash.App. 812, 816, 856 P.2d 407 (1993) (stating, before statutory definition was enacted, that “property of another” is broader than fee ownership interest). Whether the defendant or someone other than the intended victim also has an interest in the property makes no difference; “it is necessary only that the property belong at least in part to someone other than the accused.” 13A Fine & Ende, supra, § 1704, at 357; VanValkenburgh, 70 Wash.App. at 816, 856 P.2d 407.

¶ 12 The State argues that Newcomb does not possess exclusive ownership of the easement for two reasons. First, the property containing the easement is in his mother's name; Newcomb merely manages the property on his mother's behalf. Second, even if Newcomb is his mother's agent and thereby has assumed an ownership interest in the property, the easement conveys important rights to Kredlo.⁴

[160 Wash.App. 191] ¶ 13 Easements are property rights or interests that give their holder limited rights to use but not possess the owner's land. City of Olympia v. Palzer, 107 Wash.2d 225, 229, 728 P.2d 135 (1986); see also 17 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate: Property Law § 2. 1, at 80 (2d ed.2004) (easements give holders “rights that were contained within the right of possession and carved out of it by the owner of the possessory estate: sticks taken out of the bundle”). If the easement is nonexclusive, as it is here, the owner may use his property in any way that does not impair the easement holder's rights. City of Raymond v. Willapa Power Co., 102 Wash. 278, 281, 172 P. 1176 (1918); Hayward v. Mason, 54 Wash. 649, 652, 104 P. 139 (1909). Accordingly, Kredlo's easement arguably deprives Newcomb of the exclusive ownership rights he would otherwise have in the roadway on his property.

¶ 14 Moreover, Kredlo made significant improvements to the easement by installing a gravel road. When an easement holder makes improvements to the easement, the distinction between “use” and “possession” blurs; the holder may make substantial uses that look much like possession. 17 Stoebuck & Weaver, supra, § 2.1 at 81. The State argues persuasively that even if Kredlo had no possessory interest in the easement itself, he had a possessory interest in the improvements he paid for and that these improvements qualify as the “property of another” for purposes of a malicious mischief prosecution.

¶ 15 The State attempts to bolster its argument that Newcomb damaged the property of another by pointing to the more general definition of property contained in the criminal code. Property is there defined as “anything of value, whether tangible or intangible, real or personal.” RCW 9A.04.110(22). Kredlo's interests in the easement and its improvements fit easily into that definition, but it is the more specific definition of “property of another” that controls in a malicious mischief prosecution. RCW 9A.48.010(1).

[160 Wash.App. 192] ¶ 16 We acknowledge that no published authority in Washington holds that damaging improvements to an easement can support a charge of malicious mischief. But see State v. Martin, 2009 UT App 43, 204 P.3d 875 and State v. Stedman, 306 Mont. 65, 30 P.3d 353 (2001) (both originating with criminal mischief charges based on easement disputes)....