State v. Wooten

Decision Date24 July 2012
Docket Number40810-4-II
CourtWashington Court of Appeals
PartiesSTATE OF WASHINGTON, Respondent, v. DAVID ALLEN WOOTEN, JR., Appellant.



On April 15, 2010, a jury found David A. Wooten, Jr. guilty of first degree malicious mischief. Former RCW 9A.48.070 (1983). On appeal, Wooten argues that the State failed to present sufficient evidence that he knowingly damaged "property of another" or that he acted with malice. Wooten also contends that the trial court erred in failing to give a Petrich[1] instruction because the State presented two distinct acts of possible malicious mischief and that the trial court impermissibly commented on the evidence.

We affirm.


On May 17, 2005, Wooten signed a "Real Estate Purchase and Sale Agreement" (REPSA) to purchase Dennis Kohl's property on Mayfield Lake in Lewis County. The REPSA named Kohl as the seller and Wooten Primary Care, LLC (Primary) as the buyer with Wooten signing on Primary's behalf.[2] An addendum to the REPSA indicated that the buyer and seller "shall enter into a [sic] option to Lease Purchase the Property drawn by sellers [sic] attorney." Ex. 1. In May 2005, Wooten and his wife moved into the house and lived there continuously until May 2008. In May and June 2006, the parties signed a real estate contract dated November 1, 2005.[3] Kohl never recorded either of the agreements.

Wooten made payments on the contract directly to Kohl and, in line with their agreement, Wooten expected to receive the deed to the property after completing his final payment on the home. But Kohl admitted at trial that, unbeknownst to Wooten, he later took out a second mortgage on the property. In September 2007, Kohl (in his words) "flipped" the house back to the bank. Report of Proceedings (RP) (Apr. 14 2010) at 50. Wooten acknowledged at trial that he did not dispute the provisions of this contract.

At trial, Wooten maintained that, in the course of remodeling the home, he discovered black mold infecting some of the walls and floors and that he needed to remove large amounts of sheetrock and flooring as a preventative measure. Wooten also testified that in December 2007, he and his wife decided to take a break from the remodel to go on vacation during the holidays. Upon returning from vacation, Wooten found a foreclosure notice posted at the home, which he did not understand because he was current on all of his payments.

By contacting the collection agency and a real estate attorney Wooten discovered that he would be liable for double the amount he had agreed to pay Kohl for the house[4] in order to keep it from foreclosure. Wooten and his wife did not continue the remodel project and moved to Texas early in May 2008. Wooten asserted that when he left the house, he had bagged and neatly stacked all the garbage and refuse from the property in the garage. When later asked at trial whether a "five-yard container full of refuse" was a "good estimation" of how much trash was left on the property, Wooten agreed. RP (Apr. 15, 2010) at 45.

Later in May 2008, Kohl entered the property to find most of the sheetrock removed from the walls, the flooring removed, only one functional bathroom, and a large amount of garbage spread inside and outside of the house. Kohl called the sheriff's department to make a complaint, and Lewis County Sheriff's Deputy Susan Shannon responded to the scene. At trial, Shannon testified that the house "had been destroyed" and that

[s]tarting in the driveway as you walked up to the house there is this garbage everywhere, bags of garbage, junk abandoned vehicles, really tall grass. Walking up to the house there is a garage and a car park. You can see more piles of garbage, there were garbage cans full of garbage, more bags, junk, couch, nasty couch out on the front porch in the front. . . .
. . . .
. . . Then I proceeded into the house and the filth was unsurmountable [sic], it was everywhere. . . .
. . . .
. . . Beer cans, beer bottles, no carpet, dog poop everywhere, medical garbage, gauze, blood vials, blood in vials, needles, rotten food. There was no space on the kitchen counter, cake cups everywhere, stinky, rotten food, children's toys. . . .
. . . .
. . . Old yucky mattress in the back on the box springs, I think it had a sleeping bag on it. Children's clothes, children's shoes, more dog poop, fumes of urine in there, had to go out a couple of times to get your breath because it was so nasty.

RP (Apr. 14, 2010) at 98-102. On December 23, the State separately charged Wooten and his wife with first degree malicious mischief. The Wootens were also tried separately.

At trial, the State's construction expert, Travis Amundson, testified that it would take at least $15, 000 to bring the house back "to code, " and even more to put it back to "finish[ed]" condition. RP (Apr. 15, 2010) at 11. As a preliminary matter, Amundson estimated that, in light of hazardous medical waste on the property, an initial hazardous material assessment of $500 would be required and that garbage removal alone would cost roughly $3, 000. No evidence contradicted these cost assessments.

The jury returned its verdict on April 15, 2010, finding Wooten guilty of first degree malicious mischief. Former RCW 9A.48.070.[5] The trial court sentenced Wooten to 60 days in jail. Wooten timely appeals.

Sufficiency of the Evidence

Wooten argues that the State failed to prove that he knowingly caused damage to "property of another" or that he acted maliciously because he believed he owned the home.[6] Because sufficient evidence established that Wooten knew that he did not own the property in fee simple and that either Kohl or the bank attempting foreclosure on the property had an ownership interest in the property, we affirm.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the jury's verdict, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Notaro 161 Wn.App. 654, 670-71, 255 P.3d 774 (2011). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that a trier of fact can draw from that evidence. State v. Salinas, 119 Wn.2d 192 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn.App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). We do not need to be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the jury's verdict finding such guilt. State v. Jones, 93 Wn.App. 166, 176, 968 P.2d 888 (1998), review denied, 138 Wn.2d 1003 (1999).

To convict Wooten of first degree malicious mischief, the State needed to prove that Wooten (1) knowingly and maliciously (2) caused damage (3) to the property of another and (4) the damage exceeded $1, 500. Former RCW 9A.48.070. Wooten having failed to brief us sufficiently on the damage amount element, we focus our analysis on whether Wooten knowingly and maliciously damaged "property of another."[7]

A. Knowledge

The malicious mischief statutes require that the damaged property be "property in which the actor possesses anything less than exclusive ownership."[8] RCW 9A.48.010(1)(c) (emphasis added). RCW 9A.48.100(1) defines "physical damage" in the context of malicious mischief broadly, including "erasure of records, information, data, computer programs, or their computer representations" and, in addition, "any diminution in the value of any property as the consequence of an act." (Emphasis added.)

In accord with this broad definition of "physical damage, " Washington courts have held that the malicious mischief statutes protect a wide range of legally cognizable property interests. In State v. Newcomb, 160 Wn.App. 184, 246 P.3d 1286, review denied, 172 Wn.2d 1005 (2011), for instance, this court addressed whether the State could properly charge malicious mischief against a defendant who damaged an easement. In resolving that case, we determined that even if someone else had a "use rather than an ownership interest" in the property, such an interest (the easement) "deprived Newcomb of an exclusive ownership interest in the roadway." Newcomb, 160 Wn.App. at 192 (emphasis added). Accordingly, we affirmed Newcomb's malicious mischief conviction.[9] Newcomb, 160 Wn.App. at 193.

In State v. VanValkenburgh, 70 Wn.App. 812, 856 P.2d 407 (1993), Division Three of this court addressed a defendant's challenge to his second degree malicious mischief conviction on the grounds that the charging document failed to name the owner of the property he damaged but, instead, named the lessee of the rented property. The VanValkenburgh court held that "[w]hile the property must belong, at least in part, to someone other than the accused, the failure to name the fee owner in the information does not make the information constitutionally defective." 70 Wn.App. at 815. Much like Newcomb, VanValkenburgh stands for the proposition that the malicious mischief statutes protect more than just fee simple ownership.

Neither Newcomb nor VanValkenburgh stand for the proposition that the malicious mischief statutes should be limited to protecting a specific real property interest or a simple fee ownership interest. In fact, both cases recognize the statutes' legislative intent to criminalize behavior that affects property in which someone else has an interest other than an exclusive real...

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