Opinion
No. 36173-6-II.
April 8, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-00387-8, Anna M. Laurie, J., entered March 23, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
Kirk Duffy Selfridge appeals his jury convictions for one count of tampering with a witness and one count of violating a no-contact order. We affirm the witness tampering count, but we reverse and vacate the no-contact conviction due to insufficient evidence, as the State concedes.
Tracie Rickert was married to Selfridge for 14 years. Their divorce was final on February 9, 2007. On March 8, 2006, the Kitsap County Superior Court issued a pre-trial domestic violence no-contact order protecting Rickert from Selfridge due to an incident not relevant to this case. The no-contact order prohibited Selfridge from having contact with Rickert and from coming within 500 feet of her residence, school, or workplace.
Rickert was formerly known as Tracie Selfridge.
On May 21, 2006, while driving home from a store, Rickert saw the van that she and Selfridge owned parked at a church down the street from her house. The van bore three written statements: (1) [Rickert] abuses her children and disabled husband; (2) [Rickert], service deli manager of Silverdale Albertsons, drinks and does drugs on the job; and (3) [Rickert] molests children. Rickert saw Selfridge and a friend walking up the road away from the van. Rickert then drove home and asked her friend and neighbor, Holly Goff, to bring a camera so that they could take pictures. When they reached the van, it drove off. Goff identified Selfridge as the van's driver.
The van was more than 500 feet from her house.
Around the same time, Child Welfare Service assigned employee Carla Meier to work with the Selfridge family to help one of the children reacclimatize into the home following a stay in foster care. On April 6, 2006, Selfridge called Meier and told her that Rickert had fabricated the former incident, that he never hurt her, that Rickert assaulted their oldest child, and that Rickert tried to burn the house down. He also alleged that Rickert abused his dog. When Meier visited the home to investigate, she determined that the allegations were unfounded.
This reference refers to the 2006 assault allegations against Selfridge, not at issue in this appeal.
Selfridge called Meier with claims that Rickert was abusing the children on multiple occasions. Selfridge also asked other people to call in claims against Rickert, which they did. Selfridge made at least seven referrals, five of which were unfounded. These consisted of allegations that Rickert drank, posed a threat to the children, scared the children, and that she allowed a sex offender to live or stay with the children.
On at least two occasions, Selfridge told Meier that he would have Rickert change her story. Meier testified that Selfridge said that, "she had done it before and he was able to have her take it back and was going to make her take it back this time, as well." RP at 43. Rickert testified that Selfridge's calls and allegations made her feel intimidated.
On March 18, 2006, Goff saw Selfridge's van parked in the driveway of Rickert's house and called 911. The police did not find Selfridge at the house, but five minutes after they left, Goff saw him drive off in the van. Selfridge waved at her when he drove away.
The State charged Selfridge with one count of tampering with a witness and one count of violating a no-contact order. The jury found him guilty on both counts.
I. Tampering with a Witness
Selfridge first contends that the State failed to present sufficient evidence to support his conviction for tampering with a witness because his actions did not induce Rickert to testify falsely or to withhold evidence. When a defendant challenges the sufficiency of evidence supporting his convictions, we view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The witness tampering statute provides:
A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to:
(a) Testify falsely or, without right or privilege to do so, to withhold any testimony.
RCW 9A.72.120(1). The trial court instructed the jury that:
A person commits the crime of tampering with a witness when he or she attempts to induce a witness or person he or she has reason to believe might have information relevant to a criminal investigation to testify falsely or, without right or privilege to do so, to withhold any testimony.
CP at 44.
Selfridge contends that the State relied on two separate incidents, neither of which show that he tried to induce Rickert to testify falsely or to withhold testimony. First, the State argued that Selfridge repeatedly called Child Protective Services (CPS) and Kitsap Animal Control, making false accusations against Rickert. Next, the State alleged that Selfridge placed the three statements on the van to keep her from testifying against him.
Selfridge claims that State v. Rempel, 114 Wn.2d 77, 785 P.2d 1134 (1990), supports his assertions. In Rempel, a defendant convicted for attempted rape called the victim from jail, telling her that he was sorry and asking her to drop the charges. Rempel, 114 Wn.2d at 82. Although he called her many times, the victim accepted only two or three of the collect calls and admitted that she was not worried because he was in jail. Rempel, 114 Wn.2d at 81.
The Rempel court first looked at the defendant's literal words, noting that they did not contain an express threat or promise of any reward. Rempel, 114 Wn.2d at 83. Next, it stated that the State may rely on the inferential meaning of words and the context in which they were used. Rempel, 114 Wn.2d at 83-84 (citing State v. Scherck, 9 Wn. App. 792, 514 P.2d 1393 (1973)). The Rempel court held that although the phone calls were clearly a nuisance, there was not sufficient evidence to support the conviction for witness tampering. Rempel, 114 Wn.2d at 84.
Rempel is easily distinguished. Here, Selfridge told Meier on several occasions that he intended to get Rickert to take back her story. His subsequent behavior involved reporting unfounded complaints to both CPS and Kitsap Animal Control, both personally and through intermediaries. Selfridge placed the van with the derogatory remarks in Rickert's neighborhood for all to see. Unlike Rempel, where the defendant's statements amounted to an apology, a statement that his life might be ruined, and a request to drop the charges, Selfridge told Meier of his intentions and then engaged in a series of actions designed to carry them out. Viewing inferences in the light most favorable to the State, the evidence is sufficient for a rational trier of fact to find the elements beyond a reasonable doubt. Hosier, 157 Wn.2d at 8.
Selfridge includes a brief argument as part of his sufficiency claim that the speech on his van was constitutionally protected. But Selfridge does not claim that his charging statute is vague, nor does he assign error to any statute. Additionally, "[i]t is the party asserting the unconstitutionality of an action that bears the burden of establishing that state action is involved." City of Pasco v. Shaw, 161 Wn.2d 450, 460, 166 P.3d 1157 (2007), cert. denied, ___ S. Ct. ___, 2008 U.S. LEXIS 2579 (Mar. 17, 2008). Selfridge makes no effort to satisfy this burden. Because Selfridge fails to develop his argument in any meaningful way, this claim is a naked casting into the constitutional sea that we disregard. RAP 10.3(a)(4) and (6); State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
II. Violation of No-Contact Order
Selfridge next contends and the State concedes that insufficient evidence supported his conviction for violation of a no-contact order because the jury instructions required that Selfridge "willfully had contact with [Rickert]." CP at 50. When reviewing a sufficiency challenge, we view the evidence in the light most favorable to the State and the evidence is sufficient if any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. Hosier, 157 Wn.2d at 8. We draw all reasonable inferences in favor of the State. Hosier, 157 Wn.2d at 8.
Under the law of the case doctrine, if the State does not object to the jury instructions, this court treats them as the applicable law on appeal. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). Here, Selfridge acknowledges that he violated the portion of his no-contact order prohibiting him from coming within 500 feet of Rickert's residence. But, the trial court did not instruct the jury on the distance requirement; instead, it instructed the jury that they must determine whether Selfridge "willfully had contact with [Rickert]." CP at 50. There is no testimony in the record that Rickert was present when Selfridge came within 500 feet of her residence. As such, there is not sufficient evidence to support this conviction.
III. Petrich Instruction
Finally, Selfridge argues that the trial court erred by failing to give a Petrich jury instruction that would have required the State to specify which of the two incidents, either the messages on the van or the phone calls, it was prosecuting on the witness tampering charge. We review alleged errors of law in jury instructions de novo. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005).
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. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), modified on other grounds, State v. Kitchen, 110 Wn.2d 403, 406, 756 P.2d 105 (1988). Thus, where there is evidence of multiple acts, the State must elect the particular criminal act on which it will rely for conviction, or the trial court must instruct the jury that they must unanimously agree that the same underlying criminal act has been proved beyond a reasonable doubt. Petrich, 101 Wn.2d at 572; Kitchen, 110 Wn.2d at 411. Failure to elect or to give a unanimity instruction is of constitutional magnitude and may be raised for the first time on appeal. Kitchen, 110 Wn.2d at 411.
This rule applies only where the State presents evidence of "several distinct acts." Petrich, 101 Wn.2d at 571. It does not apply where the evidence indicates a "continuing course of conduct." Petrich, 101 Wn.2d at 571. To determine whether criminal conduct constitutes one continuing act, the facts must be evaluated in a "common sense manner." Petrich, 101 Wn.2d at 571. Generally, evidence that the charged conduct occurred at different times and places tends to show that several distinct acts occurred rather than a continuing course of conduct. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). Evidence of a single victim is not enough, in itself, to demonstrate one continuing offense. Petrich, 101 Wn.2d at 571. "In contrast, evidence that a defendant engages in a series of actions intended to secure the same objective supports the characterization of those actions as a continuing course of conduct rather than several distinct acts." State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995) (citing Handran, 113 Wn.2d at 17).
Selfridge contends that the State argued two theories to the jury regarding the witness tampering charge — (1) he made repeated calls to CPS and Kitsap Animal Control and (2) he printed accusations on the side of the van. He argues that the State did not provide which act it was relying on for conviction, thus requiring a new trial.
The State counters that the trial court was not required to give an unanimity instruction because Selfridge's acts constituted a continuing course of conduct. The State admits that none of his actions, taken alone, were criminal, but taken together, they constitute witness tampering. The State points to its statements during closing argument:
So for Count I, "To convict Mr. Selfridge of tampering with a witness on or between March 6, 2006, and August 31, 2006."
The reason that there's a time frame there and difference in days is because his behavior was over a range of days.
RP at 105. The State is correct. The State charged one crime with a series of acts. Even if Petrich applies and the State is wrong that none of Selfridge's actions alone were criminal, his actions show a continuing course of conduct to secure the same objective — to have Rickert change her statement. There was no error.
We affirm the witness tampering charge, but we vacate the violation of a no-contact order conviction based on insufficient evidence, and we remand for resentencing.
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.
VAN DEREN, A.C.J. and PENOYAR, J., concur.