State v. Smith
| Decision Date | 03 May 2021 |
| Docket Number | No. 80669-6-I,80669-6-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. MICHAEL DAVID SMITH, Appellant. |
UNPUBLISHED OPINION
ANDRUS, A.C.J. — Michael Smith appeals his conviction for malicious mischief and the domestic violence assault of his former girlfriend, Tanya Hedin. He argues the trial court erred in denying his motion for a mistrial for jury misconduct. He also contends his malicious mischief conviction should be vacated because the trial court did not provide a unanimity instruction and the State failed to adequately elect in its closing argument the specific acts it claimed comprised malicious mischief. Lastly, he maintains the trial court erred in denying his motion to suppress incriminating statements he made to Hedin during a recorded jail phone call. We reverse the malicious mischief conviction under State v. Petrich,1 but otherwise affirm.
FACTS
At the time of trial, Michael Smith and Tanya Hedin had been in a relationship for seven years and have a son together. They lived in Lake Stevens, Washington with their son and two daughters, one each from previous relationships. In 2017, Jonathan Missroon, who lived down the road from Hedin and Smith, began calling and texting Hedin regularly, leading Smith to harbor suspicions that the two were having an affair.
On the afternoon of October 27, 2017, Hedin told Smith she was going to a tanning appointment, but instead met with Missroon at nearby Lake Stevens Community Park so that Missroon could change a taillight on her Dodge pickup truck. Missroon arrived on a motorcycle after Hedin, parked next to her pickup, and changed her rear light within minutes.
Smith learned of Hedin's whereabouts from her teenage daughter. He raced his white Chevy truck to the park and found Missroon and Hedin together. Hedin heard Smith arriving and described his driving as erratic and fast. Other eye witnesses described hearing Smith "peeling out" or "squealing tires," traveling so fast that the truck came off the parking lot speed bumps.
Smith skidded to a stop behind Hedin's truck, leaving skid marks seven to eight feet long. He got out of his truck, began screaming profanities at Hedin and Missroon, and then threw a water bottle at Missroon's head. Smith returned to his vehicle, put the truck in gear, lined his truck up with the rear of Hedin's vehicle, and then slammed the truck into reverse and smashed into Hedin's pickup. According to both Hedin and Missroon, Smith stopped and looked at them beforespeeding out of the park. Eye witnesses also described Smith as ramming into Hedin's parked truck. The impact caused Hedin, who was getting into the driver's seat of the pickup, to fall to the ground, leaving her scratched and bruised.
Two witnesses who saw and heard the collision, called the police. Sergeant Josh Pettibone, with the Snohomish County Sheriff's Office, was dispatched to the park at 4:17 p.m. At the same time, Deputy Sheriff Karl Gilje went to the home Hedin and Smith shared. Gilje arrived at 4:30 p.m. and found Smith sitting outside the house distraught and drinking a soda. Gilje arrested Smith.
When Hedin returned to the house that evening, she noticed that her home office, located in the couple's detached garage, had been ransacked and her embroidery machine and computer equipment destroyed. Kerry Baker, who repairs embroidery machines, testified that the required replacement parts for that machine would cost $2,500. In addition to the embroidery machine, Hedin found a shattered computer screen, a damaged laptop and a severed electrical cord to a copy machine. Hedin also found water-damaged computer hard drives outside in the yard. Hedin called police to report the damage at about 8:30 p.m. Deputy Sheriff Todd Thorpe responded and photographed the office area and damaged equipment.
While Thorpe was at the house, Smith called Hedin from jail. Thorpe instructed her to answer the call and "[a]sk him why he did it." When Hedin asked "why . . . you broke my Toshiba laptop," Smith responded "because I was pissed." Thorpe recorded this call on his cell phone, but deleted the recording afterspeaking to his supervisor. The jail, however, recorded the call and the court admitted it at trial.
The State charged Smith with domestic violence second degree assault with a deadly weapon, and domestic violence second degree malicious mischief. The jury convicted Smith as charged. The court sentenced Smith to a standard range sentence of 9 months on the assault and 5 months for malicious mischief.
ANALYSIS
Smith asks this court to vacate his malicious mischief conviction because his right to a unanimous verdict was violated. We agree.
In Washington, a defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed. State v. Stephens, 93 Wn.2d 186, 190, 607 P.2d 304 (1980).
When the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected. . . . The State may, in its discretion, elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured. When the State chooses not to elect, this jury instruction must be given to ensure the jury's understanding of the unanimity requirement.
Petrich, 101 Wn.2d at 572. Where there is neither an election nor a unanimity instruction in a multiple acts case, a constitutional error occurs. State v. Coleman, 159 Wn.2d 509, 512, 150 P.3d 1126 (2007). The error stems from the possibility that some jurors may have relied on one act as the basis for convicting the defendant and other jurors may have relied on a different act, resulting in a lack ofunanimity on all of the elements necessary for a valid conviction. State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988).
The State charged Smith with malicious mischief in the second degree under RCW 9A.48.080(1)(a). This statute makes it a crime to "knowingly and maliciously" cause "physical damage to the property of another in an amount exceeding seven hundred fifty dollars." Before trial, the State notified the court it intended to rely on the damage Smith allegedly caused to Hedin's truck and to her personal property at the house to support the malicious mischief charge. The State also informed the trial court it intended to propose a Pretrich instruction2 to ensure jury unanimity on that charge. At some point during trial, however, the State decided not to offer a Pretrich instruction. The jury was thus not instructed that it had to unanimously agree on the same act of property damage to render a guilty verdict.
In response to this appeal, the State contends the damage to Hedin's truck and to the personal property located in her house constituted a continuing course of conduct, eliminating the need for a unanimity instruction. This argument lacks merit.
First, the State did not raise this argument below. When Smith moved to dismiss the malicious mischief conviction, arguing that the lack of a unanimity instruction rendered that conviction invalid, the State argued only that the evidenceit presented and its closing argument made clear that it had elected to rely only on damage to the personal property at the house. The State did not argue that a Petrich instruction was unnecessary because Smith's conduct constituted a continuing course of conduct, and the trial court did not address this issue. As the State is well aware, a party generally may not raise an argument on appeal that they did not make to the trial court. RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Second, while Petrich does not apply if the evidence shows a continuing course of criminal conduct, State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989), the record here does not support this argument. "A continuing course of conduct requires an ongoing enterprise with a single objective." State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). We evaluate the evidence in a commonsense manner considering the time that elapsed between the criminal acts and whether the acts involved the same parties, same location, and the same ultimate purpose. Id. Where evidence involves conduct at different times and places, or different victims, then the evidence tends to show several distinct acts. Id. at 362. Conversely, evidence that a defendant engaged in a series of actions intended to secure the same objective indicates a continuing course of conduct. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995).
In this case, the State admitted below that Smith's actions at the park and at the residence were "separate and distinct conduct at a different location[s], at a different time[s]." The State now contends, however, that the acts were a continuing course of conduct because Hedin was the victim of both acts and theyoccurred within roughly 30 minutes.
But the evidence of a continuing course of conduct ends there. The damage to Hedin's truck occurred in a public park in close proximity to Hedin and Missroon. Smith was convicted of second degree assault for the same act, meaning the jury found he had intended to inflict bodily harm upon Hedin when he rammed her truck. Smith then drove to a separate location, the couple's home, and allegedly engaged in a second criminal act, the destruction of Hedin's personal property, which she did not discover until four hours later. These actions constitute separate and distinct acts, one with the objective to assault Hedin, and the other with the objective of destroying her property outside of her presence.
The State alternatively argues, as it did below, that "no unanimity instruction was required because the prosecutor clearly...
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