Opinion
No. 34936-1-II.
November 6, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-1-00575-6, Paula Casey, J., entered June 9, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton, C.J., and Penoyar, J.
Monty Shaw Burnam appeals his conviction for intimidating a witness. We affirm.
F.K., a minor, lived in an Olympia area apartment with her mother, Mary Sage, her brother, her sister, and her mother's boyfriend, Monty Burnam, a 33-year-old adult. Shortly after Thanksgiving 2003, F.K. and Burnam started a sexual relationship.
Among other things, F.K. testified that she had sexual intercourse with Burnam more than 20 times.
After learning of this sexual relationship, Sage confronted Burnam in the apartment's bedroom. According to Sage, Burnam apologized, saying, "I have feelings for her, I'm in love with her, I want to be with her." RP (May 2, 2006) at 46. Then, Sage and Burnam went to speak with F.K. in the apartment's living room. F.K. admitted that she and Burnam had been in a sexual relationship shortly after Thanksgiving 2003.
Sage testified:
[Burnam] said — he called [F.K.] some names. He says, you been running your F'ing mouth. He said — and [grabbed] ahold of her and threw her down. He put a knife to his own throat and said, I might as well kill myself because you've already done that to me. I went to grab for the phone to call the police. And Mr. Burnam grabbed me by the throat and whispered right in my ear. He whispered in my ear: You will take this to your grave, or my homies from Wenatchee will take care of you.
RP (May 2, 2006) at 47. Sage could not remember whether Burnam still had the knife in his hands when he threatened her. Sage also testified that Burnam "started flipping out, punching holes in the doors, kicking a hole in the kitchen wall, broken doors, holes in the hallway." RP (May 2, 2006) at 50.
Sage's neighbor, Christine Martin, witnessed this event and called the Olympia Police. When a police officer arrived, Burnam was not in the apartment. But he appeared behind the police officer. According to Sage, "[H]e was standing there, and I was afraid to say anything after what he had said to me." RP (May 2, 2006) at 51. Fearing Burnam, Sage told the police officer that "everything was fine." RP (May 2, 2006) at 51. But sometime the next day, Sage called the Olympia Police and told them what had happened.
Thereafter, the State charged Burnam with: two counts of second degree child rape; two counts of second degree child molestation; and one count of intimidating a witness. After a trial, the jury found Burnam guilty as charged. The trial court sentenced Burnam to life without the possibility of early release for the two counts of second degree child rape and the two counts of second degree child molestation. The trial court then sentenced Burnam to 90 months of confinement for the one count of intimidating a witness. Burnam appeals.
I. Sufficiency of the Evidence
Burnam argues that the evidence was insufficient to support his conviction of intimidating a witness. He claims that the State presented "no evidence" that he immediately intended to use force against Sage, as required by "the law of the case." Br. of Appellant at 8. We disagree.
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When a defendant challenges the sufficiency of evidence in a criminal case, we draw all reasonable inferences from the evidence in favor of the State and interpret all reasonable inferences from the evidence strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that we reasonably can draw therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980). Finally, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Here, the State charged Burnam with intimidating a witness under RCW 9A.72.110. And at trial, the trial court instructed the jury as follows:
To convict the defendant of the crime of intimidating a witness, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about January 29, 2004, the defendant by use of a threat against Mary Sage, a current or prospective witness, attempted to induce Mary Sage not to report the information relevant to criminal investigation or the abuse of a minor child; and
(2) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any of these elements, then it will be your duty to return a verdict of not guilty.
CP at 84. The trial court also instructed the jury, "As used in these instructions, threat also means to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time." CP at 85 (emphasis added).
Intimidating a witness may involve a threat of immediate force, RCW 9A.72.110(3)(a)(i), or a threat of future force, former RCW 9A.04.110(25) (2004).
At trial, the State did not object to these instructions. And on appeal, the State concedes that these instructions, as given, became "the law of the case." See State v. Hickman, 135 Wn.2d 97, 102-03, 954 P.2d 900 (1998); State v. Ng, 110 Wn.2d 32, 39, 750 P.2d 632 (1988) (because the State failed to object to the jury instructions they are "the law of the case" and the appellate court will consider error predicated on them). As the State notes, "[It] was required to prove that [Burnam] attempted to induce . . . Sage not to report relevant information by means of communicating, directly or indirectly, the intent immediately to use force against any person present at the time." Br. of Resp't at 12 (emphasis added). In other words, the State elected to prove a threat of immediate force.
Although Burnam claims that the State merely presented evidence of "a conditional threat of harm in the future," he is incorrect. Br. of Appellant at 8. The State actually presented evidence of an immediate threat of harm. After all, Sage testified that when she tried to call the police, Burnam "grabbed" the phone from her hands and threw it across the room. RP (May 2, 2006) at 58. Burnam then "grabbed" Sage by the throat and whispered in her ear, "You will take this to your grave, or my homies from Wenatchee will take care of you." RP (May 2, 2006) at 47. Just prior to this incident, Burnam had hit F.K., holding her down on the floor, and throwing her against the washer and dryer. Burnam also had put a knife to his own throat, saying that he might as well kill himself. Finally, in the context of Burnam's actions, Sage testified that she felt afraid that Burnam was going to hurt her and F.K. She perceived that she "should not talk to the police or anybody, or harm would come." RP (May 2, 2006) at 48-49.
While Burnam's words, considered alone, may have referred to a conditional threat of harm in the future, his actions, considered together, referred to an immediate threat of harm. We agree with the State that "his acts of forcing the phone away from [Sage] and then grabbing her by the throat indirectly communicated a separate message that she faced immediate harm if she continued her efforts to contact police." Br. of Resp't at 15. Drawing all reasonable inferences from the evidence in favor of the State and interpreting all reasonable inferences from the evidence most strongly against Burnam, we are satisfied that the evidence was sufficient to prove that he made an immediate threat of harm.
II. Definition of "Attempt" in Jury Instructions
Burnam argues for the first time on appeal that the trial court erred by not defining "attempted" for the jury in the "to-convict" instruction for the crime of intimidating a witness. Br. of Appellant at 9. We disagree.
In addition, he claims that "attempted" is an essential element of the crime of intimidating a witness. Br. of Appellant at 9.
"The requirements of due process usually are met when the jury is informed of all the elements of an offense and instructed that unless each element is established beyond a reasonable doubt the defendant must be acquitted." State v. Scott, 110 Wn.2d 682, 690, 757 P.2d 492 (1988). Here, the trial court so instructed the jury.
And even assuming, without deciding, that "attempted" is an element of the crime of intimidating a witness, the failure to define an element of the crime in the jury instructions is not a manifest constitutional error that may be raised for the first time on appeal. See Scott, 110 Wn.2d at 691 (failure to define "knowledge" in a burglary instruction was not a manifest constitutional error); Ng, 110 Wn.2d at 44-45 (failure to define "theft" in a robbery instruction was not a manifest constitutional error); State v. Pawling, 23 Wn. App. 226, 232-33, 597 P.2d 1367 (1979) (failure to define "assault" in first degree burglary instruction not a manifest constitutional error), review denied, 92 Wn.2d 1035 (1979). Thus, there is nothing to suggest that the trial court's so-called failure to further define "attempted" somehow rises to the level of a manifest constitutional error.
Moreover, even assuming that "attempted" is an element of the crime and even assuming that a failure to define an element of the crime in the jury instructions could be raised for the first time on appeal, "attempted," as used in the "to convict" instruction for intimidating a witness, is a term of sufficient common understanding to allow the jury to convict Burnam of intimidating a witness. See Scott, 110 Wn.2d at 689; Ng, 110 Wn.2d at 44. Granted, the legislature has defined criminal attempt under RCW 9A.28.020. But "attempted" is not exclusively of legal cognizance, and an understanding of its meaning can fairly be imputed to a reasonable jury. See Pawling, 23 Wn. App. at 233. After all, the dictionary defines "attempt" as "to make an effort to do, accomplish, solve, or effect," or "an effort to achieve something by force." Webster's Third New International Dictionary 140 (2002). And the trial court's use of "attempted" in the "to convict" instruction is in accordance with common sense.
Under RCW 9A.28.020(1), a person is guilty of an attempt to commit a crime if "with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime."
Here, there was no "wholesale omission of an essential element in the `to convict' instruction." Cf. City of Seattle v. Norby, 88 Wn. App. 545, 557, 945 P.2d 269 (1997), overruled on other grounds by State v. Robbins, 138 Wn.2d 486, 980 P.2d 725 (1999). The jury instructions as a whole correctly stated the law, and the State was not relieved of its burden of proving every essential element beyond a reasonable doubt. Cf. State v. Eastmond, 129 Wn.2d 497, 503, 919 P.2d 577 (1996).
And if Burnam felt that the State's case was weak, he had the opportunity to so argue to the jury. See Scott, 110 Wn.2d at 690-91. He also had the opportunity to advance his argument in a well-crafted instruction, which the trial court could have accepted or rejected, taking into account the relevant law and Burnam's right to present his theory of the case. See Scott, 110 Wn.2d at 691. "But we find nothing in the constitution . . . requiring that the meanings of particular terms used in an instruction be specifically defined." Scott, 110 Wn.2d at 691. Because Burnam failed to propose a defining instruction at trial, he may not raise the absence of such an instruction for the first time on appeal. Scott, 110 Wn.2d at 691.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J. and PENOYAR, J., concur.