State v. Smith
| Decision Date | 16 February 2021 |
| Docket Number | 36213-2-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JEREMIAH A. SMITH also known as GLENN A. AKERS, Appellant. |
UNPUBLISHED OPINION
Jeremiah A. Smith, also known as Glenn Akers, challenges two of his convictions and his sentence as a persistent offender. Because sufficient evidence and sufficient findings of fact after a bench trial support his convictions, we affirm his convictions for first degree burglary and first degree murder. Because he did not challenge the constitutionality of the persistent offender statute before the sentencing court and because he does not show manifest constitutional error we also affirm his sentence.
The trial court convicted Glenn Akers of first degree murder as a result of his shooting Cesar Medina at Northwest Accessories a Spokane business, shortly after midnight on May 26, 2015. The State did not rest the murder in the first degree charge on an allegation of premeditated killing, but on an allegation that Akers entered the business premises without permission and with the intent to commit a crime. In other words, the State alleged the predicate crime of first degree burglary. On appeal, Akers challenges the trial court's conclusion that he entered the business premises without permission or remained on the premises without permission not on whether he shot Medina. We focus then on his relationship and his intermittent girlfriend Vatsana Muongkhoth's connection to the premises of Northwest Accessories, not on the shooting.
During the early morning of May 26, 2015, Glenn Akers entered Northwest Accessories with Vatsana Muongkhoth. Akers met Muongkhoth in 2008. They dated until 2013, although they did not physically see one another after 2009 due to their respective imprisonments for conspiracy to commit first degree robbery. In 2013, Muongkhoth began intimately socializing with Ruben Marmolejo, a married man. Marmolejo was the uncle of victim Cesar Medina. Medina was 17 years old at the time of his death.
Ruben Flores, a colleague of Ruben Marmolejo since 2012, operated Northwest Accessories along North Monroe Street, in Spokane. Northwest Accessories marketed pipes, glassware, apparel, and synthetic marijuana. Within Northwest Accessories' building, Anthony Baumgarden operated a separate tattoo business. Baumgarden's tattoo studio was located in the northeast side of the building. Surveillance cameras captured activities in portions of Northwest Accessories' premises, and the trial court viewed videotape of Glenn Akers' and Vatsana Muongkhoth's entrance and movements inside the shop on May 26, 2015.
Ruben Flores poorly managed Northwest Accessories. He never formally hired employees. Flores instead permitted friends to congregate at the shop and assist him with running the business. Flores, however, only identified Ruben Marmolejo as one who assisted him at the business. Marmolejo helped Flores to select pipes and bongs for marketing and to display the paraphernalia.
The trial court heard conflicting testimony concerning Vatsana Muongkhoth's association with Northwest Accessories. During direct examination, Muongkhoth claimed she was both an employee and business partner at Northwest Accessories. Muongkhoth testified that she sometimes collected money after the business closed and performed bookkeeping. She delivered the money to Ruben Flores to deposit. She also ordered inventory. She averred that she had a key to the business. According to Muongkhoth, she could enter and leave the business premises whenever she wished.
When asked on cross-examination as to whether she was employed at Northwest Accessories, Vatsana Muongkhoth answered "'I don't-I was involved.'" Report of Proceedings (RP) (May 29, 2018) at 755. She testified that she received no paycheck. When asked if she was "paid under the table," she answered: "'Yes, I guess.'" RP (May 29, 2018) at 756 (emphasis added). Muongkhoth had no agreement with Ruben Flores to share the business income.
During the same time that Vatsana Muongkhoth allegedly worked at Northwest Accessories, she worked, at least during the spring and summer, at a golf course. She conceded that she did not need employment at Northwest Accessories. Muongkhoth did not testify to any specific income she received from Northwest Accessories.
Anthony Baumgarden, the tattoo parlor operator, paid thirty percent of his income to Ruben Marmolejo as rent. Baumgarden testified he would leave the payment in an envelope in his room or in a back office. According to Baumgarden, Vatsana Muongkhoth sometimes retrieved the envelope.
Ruben Marmolejo, Vatsana Muongkhoth's primary boyfriend, and Ruben Flores, owner of Northwest Accessories, testified that Muongkhoth performed no services for Northwest Accessories. According to Marmolejo, Muongkhoth did not handle books or records of the business. Marmolejo denied that Muongkhoth had permission to be present at Northwest Accessories without his presence.
Ruben Flores insisted that Vatsana Muongkhoth never assisted him in the operation of Northwest Accessories. Muongkhoth did not keep the business's books. Flores denied that Muongkhoth's boyfriend, Ruben Marmolejo, was his silent partner.
Ruben Flores testified that only he could grant someone license to enter Northwest Accessories when the shop was closed. Even friends needed his permission to enter the building after hours.
Ruben Flores welcomed Vatsana Muongkhoth to Northwest Accessories' premises on occasion, even after business hours. Sometimes she came without the presence of Ruben Marmolejo, although she typically came to visit Marmolejo. Flores never told Muongkhoth she was not welcome at the shop. When stating the obvious, Flores declared that he would not allow Muongkhoth inside the premises in order to rob Northwest Accessories.
In the weeks preceding May 26, 2015, the date of the slaying, Glenn Akers and Vatsana Muongkhoth reignited their relationship. On the night of May 24, they bedded together in a hotel. During trial, Muongkhoth first denied having any intimate reuniting with Akers and refuted having gone to a hotel room with Akers during the week leading to the death of Cesar Medina. When confronted during questioning with a text wherein she asked Akers to spend the night with her on May 24, Muongkhoth first stated she could not remember having done so. After being challenged with a text that read: "'Will you get a room, baby, '" she conceded that Akers spent the night with her at her invitation and that she did not invite Akers to her home instead of a hotel because Ruben Marmolejo might learn of the assignation. RP (May 29, 2018) at 743-44.
On the morning of May 25, 2015, Glenn Akers discovered a duffel bag containing firearms and cocaine, inside Vatsana Muongkhoth's Suburban. Akers surmised that the contraband belonged to Ruben Marmolejo.
On the night of May 25, 2015, Cesar Medina, Ruben Flores, Ruben Marmolejo, Anthony Baumgarden, Shane Zornes, and Juan Cervantes congregated at Northwest Accessories. The gentlemen drank and smoked marijuana. During this time, Vatsana Muongkhoth and Marmolejo argued via text messages regarding Marmolejo's failure to leave his wife and Muongkhoth's sexual relationship with Glenn Akers. Marmolejo sent threatening messages to Muongkhoth that included: " " "'[T]he gallo is in full affect on my hood.'" Clerk's Papers (CP) at 403. The word "gallo" is Spanish for Rooster, Ruben Marmolejo's nickname. Muongkhoth returned texts to Marmolejo declaring: "'I fucking hate you.'" "'I hate you so much, I'm going to kill you.'" "'I hate you so fucking much.'" CP at 403. During one or more of the evening text messages, Ruben Marmolejo and Vatsana Muongkhoth agreed to meet at a gas station for the purpose of Muongkhoth returning the duffel bag to Marmolejo.
On May 25, at 9:30 p.m., Vatsana Muongkhoth traveled to Northwest Accessories, where she smashed, with a hammer, the back window of Ruben Marmolejo's BMW and pounded dents into the car's panel. Occupants of Northwest Accessories, including Marmolejo, heard the clobbering of the car. These occupants opened an exit door and saw Muongkhoth run to her Suburban and flee in the car. After the BMW assault, Ruben Flores and Shane Zornes left Northwest Accessories in Marmolejo's BMW to purchase tattoo supplies for Anthony Baumgarden. Flores closed the head shop that night between 9 and 10 p.m. He believed he locked the outside doors.
At 10 p.m. on May 25, Vatsana Muongkhoth called Glenn Akers in a panic. She requested that Akers retrieve her from the residence of Brittany Verzal, a friend. She fretted that Ruben Marmolejo would kill Akers, her dogs, and her daughter and burn down her family's restaurant. She informed Akers that, in an effort to sever her relationship with Marmolejo, she wanted to return his duffle bag of contraband found in her car that morning. Akers traveled to Muongkhoth's friend's abode, and the two left the residence in the friend's vehicle.
During her trial testimony, Vatsana Muongkhoth denied remembering mingling with Glenn Akers on the evening of May 25. When shown a photograph of Akers with her taken on May 25, she conceded she had been with Akers.
Glenn Akers and Vatsana Muongkhoth drove to the prearranged rendezvous site of the gasoline station. Ruben Marmolejo however, did not appear at the station. Marmolejo later texted Muongkhoth to meet him at a second locale, but he did not appear at the alternative location either. During their travels, Akers and Muongkhoth texted one another, despite sitting in the same car, because of the playing...
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