State v. Read
| Decision Date | 19 September 2011 |
| Docket Number | No. 65064–5–I.,65064–5–I. |
| Citation | 163 Wash.App. 853,261 P.3d 207 |
| Parties | STATE of Washington, Respondent,v.Charles Raymond READ a.k.a. Chuck Read, Appellant. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
James Elliot Lobsenz, Carney Badley Spellman, Seattle, WA, for Appellant.Ann Marie Summers, King County Prosecutor's Office, Seattle, WA, for Respondent.SCHINDLER, J.
[163 Wash.App. 856] ¶ 1 A person commits the crime of malicious harassment by intentionally threatening a specific individual and placing that individual in reasonable fear of harm because of the victim's race, color, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap. 1 Charles Read appeals his conviction of malicious harassment, arguing the evidence does not establish beyond a reasonable doubt that he maliciously and intentionally threatened the victim because of her race, and the trial court erred in failing to determine whether race was the primary motivating factor. Read also argues insufficient evidence supports the finding that he made a “true threat.” We hold that the virulent racial epithets Read used coupled with his aggressive and intimidating conduct establish beyond a reasonable doubt that Read intentionally and maliciously threatened the victim because of her race, color, ancestry, or national origin, and sufficient evidence supports the trial court's finding that Read made a true threat.
FACTS
¶ 2 Saba Zewdu and her family emigrated from Ethiopia to the United States when she was six-years-old. Zewdu completed two years of college and speaks fluent English. In May 2009, 28–year–old Zewdu was working as a parking-lot attendant for Diamond Parking Service (Diamond) at the Elliott Bay Marina in Seattle. Zewdu is five-feet two-inches tall and weighs approximately 120 pounds.
¶ 3 On May 7, Charles Read and his spouse Arlene Read drove to the Elliott Bay Marina to have dinner. Read is a Caucasian man who owns a manufacturing company. Sixty-three-year-old Read is six-feet tall and weighs approximately 240 pounds. Because Read did not want to park his Ford F–150 Super Crew Cab pickup truck near another vehicle, he parked the truck across at least two parking spaces in the parking lot.
¶ 4 Zewdu issued Read a parking ticket for improperly parking his truck across more than one parking space. Read and his spouse left the restaurant at approximately 5:45 p.m. When Read found the parking ticket he was furious. Read immediately got into his truck and drove across the parking lot to talk to the valet working at an adjacent restaurant, Brian Smith, a Caucasian male.
¶ 5 During the conversation between Read and Smith, Read remained inside the truck. Read rolled down the truck window and yelled at Smith, “ ” Smith said that he did not issue the ticket and told Read that he should call the telephone number located on the back of the ticket. Read then asked Smith “where he could find the person who gave him the ticket.” Smith pointed toward the Diamond parking lot.
¶ 6 When Read “spott[ed]” Zewdu, he drove toward her “in a manner that screeched his trucks [sic] tires.” After Read stopped the truck near Zewdu, he yelled at her, “ ‘Did you give me this fucking ticket?’ ” Zewdu said that she issued the ticket and told him to call the number on the back if he had any questions. Read then yelled, “ ‘You nigger, you gave me this fucking ticket,’ ” and got out of his truck.
¶ 7 Read's face and the veins in his eyes were red, he “was shaking in rage,” and his fists were clenched. As he advanced toward Zewdu, Read repeatedly yelled, “ ‘You g[a]ve me this fucking ticket.’ ” When Read got to within two to three feet of Zewdu, she started backing away from him, and Read asked Zewdu, “ ‘Do you know who I am?’ ” Zewdu told Read that he should call the number on the ticket and there was nothing she could do. Zewdu continued to back away but Read kept advancing toward her, yelling several more times, “ ‘You nigger, you gave me this fucking ticket.’ ” “ ” When Zewdu replied that she was Ethiopian, Read yelled at her—
¶ 8 Zewdu was frightened. There was no one else in the parking lot except Arlene Read, who remained inside the truck the entire time. Zewdu said that as Read continued to advance toward her “with rage and clenched fists,” she tried to stop him by telling him that there were cameras at the marina and holding up her cell phone. Zewdu told Read that she was going to call the police. Read responded, “ ” Zewdu then turned and started running away. While she was running, Zewdu heard the truck engine revving and the tires screeching in her direction. Zewdu hid in the bushes while she called 911. Zewdu told the 911 operator: CALLER:
CALLER: Yes, I have a Ford he's threatening me and coming after me with a car (unintelligible) his vehicle and (unintelligible) from here, and he's (unintelligible).
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CALLER: He ... he I told him I gonna call the cops on him he ... he didn't care. And he just kept chasing me and now he's in his car running around (unintelligible).
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¶ 9 After calling 911, Zewdu ran to the harbor master's office. Marina dockhand John De Maria and Smith were in the office and said that when Zewdu arrived, she was crying and trembling. Smith testified that Zewdu was so upset that she was only able to stop crying approximately 20 minutes later.
¶ 10 Sergeant William Robertson responded to the 911 call. Zewdu showed Sergeant Robertson the truck license plate number she wrote on her hand. Zewdu said she was afraid Read was going to come back and kill her and asked Sergeant Robertson to stay with her. Before leaving, Sergeant Robertson suggested that Zewdu buy pepper spray.
¶ 11 For the next several days, Zewdu had trouble sleeping. Zewdu purchased pepper spray, asked her supervisor to change her shift, and asked the staff at the marina to frequently patrol the parking lot when she was at work.
¶ 12 The State charged Read with malicious harassment. Read entered a plea of not guilty and waived his right to a jury trial.
¶ 13 Zewdu, Smith, De Maria, Sergeant Robertson, Detective Rolf Norton, and Charles and Arlene Read testified at trial. The recording of the 911 call was admitted into evidence.
¶ 14 Read testified that he was angry and admitted using profanity and racial slurs, but said that he did not intend to threaten Zewdu. Read testified that he only wanted to understand why Zewdu issued the parking ticket, and the reason he got out of his truck was because “it was the proper thing to get out and greet somebody that is walking towards you.”
¶ 15 Arlene Read testified that her husband was very upset about the parking ticket because he thought Diamond was trying to steal from him. Arlene said that she “cringed” when she heard Read use a racial slur but that he later apologized to her. Arlene also testified that Zewdu did not look like she was upset. According to Arlene, Zewdu
¶ 16 Based on the testimony and evidence at trial, the court found Zewdu's testimony credible, and rejected the testimony of Read and his spouse Arlene as not credible. The court found Read guilty of maliciously and intentionally threatening Zewdu and placing her in fear of harm because of her race, national origin, ethnicity, or color. The court found that Read's statement— coupled with his conduct, including “his clenched fists, red face, raged look, and manner in which he approached [her,] ... clearly amounted to a threat.”
¶ 17 The court's oral ruling states, in pertinent part:
The Court considered the following: I considered the exhibits, all of them; the 911 tape, I listened to it in chambers twice; the testimony of Ms. Zewdu, Mr. Read, Mrs. Read, Brian Smith, Mr. De Maria, and the police officers.
One of the key elements of testimony to me is: Why get out of the car? On the stand at first Mr. Read said he got...
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