Opinion
No. 32054-1-II
Filed: May 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 04-1-02469-4. Judgment or order under review. Date filed: 06/30/2004. Judge signing: Hon. R. Worswick Lisa.
Counsel for Appellant(s), Stephanie C. Cunningham, Attorney at Law, 4616 25th Ave NE #552, Seattle, WA 98105.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S Tacoma, WA 98402-2102.
Joshua Martin appeals his Pierce County convictions of malicious harassment, third degree assault and first degree malicious mischief. Martin contends that there was an insufficient factual basis to support his guilty pleas. We affirm two convictions but vacate the conviction of first degree malicious mischief and remand for further proceedings.
A commissioner of this court initially reviewed the matter pursuant to Martin's motion for accelerated review, RAP 18.12, and subsequently referred it to a panel of judges.
The State originally charged Martin with malicious harassment, second degree assault, and first degree malicious mischief. Pursuant to a plea bargain, it reduced the second degree assault to third degree, so that Martin could avoid a persistent offender strike, and Martin entered an Alford/Newton plea to the amended charges.
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
The court relied on the declaration for determination of probable cause to find a factual basis for Martin's pleas. According to the declaration, Martin, a 22-year-old white male, went to Spanaway Lake High School to confront the victim, Lloyd Walker, a 19-year-old black male. He put on a set of brass knuckles, stating that he was going to `fuck this guy up.' He walked over to Walker's car and punched the window, but it did not break. He then squatted by the car. Afterwards witnesses noticed the word `nigger' had been scratched into the car door.
Clerk's Papers (CP) at 3.
When Walker approached his car a short time later, Martin told him he `wanted him' and punched him in the head with the brass knuckles. Walker fought back and Martin eventually fled to his car, locking the door. Walker kicked in a window. Martin got out, armed with an iron bar. He swung the bar at Walker, and Walker backed off. Martin then broke out several of the windows in Walker's car.
CP at 3.
Martin fled before the police arrived, but they later contacted him at his residence. He told them he went to the school to confront Walker about damage done at a party several weeks earlier.
Martin pleaded guilty to the amended information, stating that after reviewing the evidence with his attorney, he believed there was a strong likelihood he would be convicted, and he wanted to take advantage of the State's offer. The court rejected the parties' recommendation that Martin be sentenced under the first time offender alternative and imposed concurrent sentences at the low end of the standard ranges, the longest of which was 12 months and one day.
CP at 13.
Martin contends that there is an insufficient factual basis to support his guilty pleas to all three charges. The trial court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea. A factual basis exists if the evidence is sufficient to enable a jury to conclude that the defendant is guilty. In making its determination, the court may consider any reliable source of information as long as the information is part of the record at the time of the plea. This includes a declaration of probable cause.
CrR 4.2(d).
State v. Saas, 118 Wn.2d 37, 43, 820 P.2d 505 (1991).
Saas, 118 Wn.2d at 43.
State v. Osborne, 102 Wn.2d 87, 95-96, 684 P.2d 683 (1984).
Martin argues that the evidence is insufficient to support his plea to malicious harassment because it does not show that he selected his victim on the basis of race. A person commits the crime of malicious harassment if he or she:
maliciously and intentionally commits one of the following acts because of his or her perception of the victim's race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:
(b) Causes physical damage to or destruction of the property of the victim or another person.
Proof that the defendant committed a prohibited act `because of' the victim's membership in a protected category is characterized as the element of `victim selection.' A person may not be convicted of malicious harassment for uttering biased remarks during the commission of another crime unless there is evidence that the victim was selected on an impermissible basis. Statements and actions are circumstantial evidence of victim selection.
State v. Pollard, 80 Wn. App. 60, 64-65, 906 P.2d 976 (1995), review denied, 129 Wn.2d 1011 (1996).
Pollard, 80 Wn. App. at 65.
State v. Lynch, 93 Wn. App. 716, 722, 970 P.2d 769 (1999).
Martin contends there was no evidence of a racial motive here. He relies on the statement in the declaration of probable cause that he went to the school to confront Walker `over issues stemming from damage done during a party.' Racial bias does not have to be the only motive for the crime. Neither does the trier of fact have to weigh the extent to which bias played a role in it.
CP at 3.
Lynch, 93 Wn. App. at 721; Pollard, 80 Wn. App. at 70.
State v. Johnson, 115 Wn. App. 890, 896, 64 P.3d 88 (2003).
The scratching of `nigger' on the door of Walker's car was clearly racially motivated. It is a more substantial act than the spontaneous utterance of a racial slur during a fight, and it suggests forethought, and thus selection. There was sufficient evidence to support an argument to the jury on the issue of Martin's guilt, and the trial court did not err in finding that there was a factual basis for the plea.
See Saas, 118 Wn.2d at 44.
Martin contends that his plea to third degree assault lacks a factual basis because there was insufficient information to establish that he caused Walker bodily harm. A person commits third degree assault when, with criminal negligence, he causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm. RCW 9A.04.110(4)(a) defines bodily harm as physical pain or injury, illness, or an impairment of physical condition. The declaration of probable cause contains evidence that Martin punched Walker in the head with brass knuckles. A jury could reasonably find that to be conduct that would cause physical pain within the definition of bodily harm. The trial court did not error in finding a factual basis for Martin's third degree assault plea.
See Lynch, 93 Wn. App. at 721 (punching victim in the face caused physical injury).
Martin's plea to first degree malicious mischief is more troublesome. A person commits malicious mischief when he or she knowingly and maliciously causes physical damage to the property of another in an amount exceeding $1,500. According to the declaration of probable cause, Martin broke several windows in Walker's car and scratched the word `nigger' on the door. There is no evidence of the cost of repair, and nothing that permits an inference that the cost would exceed $1,500. Martin's plea lacks an adequate factual basis, and it is invalid.
Martin's convictions of malicious harassment and third degree assault are affirmed. The conviction of first degree malicious mischief is vacated, and this case is remanded for further proceedings consistent with this opinion.
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.
HUNT, J. and QUINN-BRINTNALL, C.J., Concur.