Opinion
No. 24256-1-III.
November 2, 2006.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-00245-3, Robert G. Swisher, J., entered June 10, 2005.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA, 99169-1408.
Counsel for Respondent(s), Terry Jay Bloor, Benton County Prosecutors Office, M/s G, 7122 W Okanogan Ave, Kennewick, WA, 99336-2341.
Affirmed by unpublished opinion per Schultheis, A.C.J., concurred in by Brown and Kulik, JJ.
Roger Scott was convicted by a jury of stalking his ex-girlfriend. On appeal, he contends (1) the information did not include all the necessary elements of the crime; (2) the elements in the information differed from the elements in the jury instructions; (3) an inference instruction unconstitutionally shifted the burden of proof; (4) he had ineffective assistance of counsel; and (5) the evidence is insufficient to prove stalking. We find each of these contentions to be without merit, and therefore affirm the trial court.
FACTS
Mr. Scott's four-year relationship with Shannon Valenzuela ended in July 2004. After they broke up, Mr. Scott called Ms. Valenzuela up to 100 times a day, came to her job sites and home repeatedly, and followed her. Ms. Valenzuela changed jobs on more than one occasion due to Mr. Scott's behavior. She also changed her telephone number four times, her son's telephone number twice, and her daughter's telephone number once in an effort to avoid his calls. Eventually, she compiled a list of 47 pay telephones from which he would call her in Pasco, Richland, and Kennewick. He made as many as 68 calls a day to her from his personal telephone number.
Not long after the breakup, Ms. Valenzuela began a relationship with Thomas Maley. Mr. Scott frequently threatened Mr. Maley, telling him on one occasion that he was "`going to be where she's going to be, and that's dead.'" Report of Proceedings (RP) (King May 17, 2005) at 17. Once, Mr. Scott told Ms. Valenzuela that Mr. Maley "wouldn't see 20." RP (Lang May 17, 2005) at 8. Another time, he told her he was going to take Mr. Maley's head off and would "`eat a sandwich and watch him bleed.'" RP (Lang May 17, 2005) at 8.
On February 13, 2005, Mr. Scott called Barbara Hannah, Ms. Valenzuela's mother, and told her he was going to cut off Mr. Maley's head. Ms. Hannah called the Kennewick police the next morning, and an officer encouraged Ms. Valenzuela to seek a no contact order. When Ms. Valenzuela went to the courthouse on February 14 to fill out the no contact form, Mr. Scott arrived and pursued her down the hall. She called the police, who then arrested him.
Mr. Scott was charged by information with one count of harassing Mr. Maley (RCW 9A.46.020) and one count of stalking Ms. Valenzuela (RCW 9A.46.110). The jury found him not guilty of harassment, but guilty of stalking. He was sentenced to 365 days of incarceration, with 180 suspended. This appeal timely followed.
Sufficiency of the Charging Document
Mr. Scott first contends the information did not contain the necessary elements of the crime of stalking. "To be constitutionally adequate, all essential elements of the crime must be included in the charging documents." State v. Tandecki, 153 Wn.2d 842, 846, 109 P.3d 398 (2005). The primary goal of this rule is to advise defendants of the nature of the accusations against them so they can prepare an adequate defense. Id. at 846-47 (citing State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991)).
Because Mr. Scott raises this issue for the first time on appeal, we construe the language of the information liberally in favor of validity. Tandecki, 153 Wn.2d at 848-49; Kjorsvik, 117 Wn.2d at 102. The standard applied is two-pronged: (1) whether the necessary facts appear in any form or can be found by fair construction in the charging document; and if so, (2) whether Mr. Scott can show he suffered actual prejudice as a result of the inartful or vague language. Tandecki, 153 Wn.2d at 849; Kjorsvik, 117 Wn.2d at 105-06.
Analysis begins by asking whether there is at least some language in the information that gives notice of each element. State v. Tunney, 129 Wn.2d 336, 340, 917 P.2d 95 (1996). The exact words of the statute are not required as long as the elements appear in some form, and may be implied if the language supports that result. State v. Moavenzadeh, 135 Wn.2d 359, 362, 956 P.2d 1097 (1998). This court will read the words of the charging document as a whole and construe them according to common sense and practicality. State v. Campbell, 125 Wn.2d 797, 801, 888 P.2d 1185 (1995).
The crime of stalking requires proof of the following elements: (1) intentional and repeated harassment or repeated following of another person; (2) the person harassed or followed is placed in reasonable fear of injury to himself, herself, another, or property; (3) a reasonable person in the same situation would experience fear under the same circumstances; and (4) the perpetrator intends to frighten, intimidate, or harass the person, or knows or reasonably should know the person is afraid, intimidated, or harassed. RCW 9A.46.110. "Repeatedly" is further defined as "two or more separate occasions," and "follows" is defined as "maintaining visual or physical proximity to a specific person over a period of time." RCW 9A.46.110(6)(a), (d).
The count charging Mr. Scott with stalking alleges that he
did intentionally and repeatedly follow SHANNON M. VALENZUELA to her residence, her relatives' residence, the courthouse, made frequent telephone calls to her, and the victim was intimidated and harassed and the victim's feeling of intimidation and harassment was one that a reasonable person in the same situation would experience under all of the circumstances and that the defendant intended to frighten, intimidate or harass the victim and that the defendant knew or reasonably should have known that the victim was afraid, intimidated and harassed even if the defendant did not intend to place the victim in fear or intimidate or harass the victim.
Clerk's Papers (CP) at 81. Mr. Scott contends the charging language does not include an allegation that Ms. Valenzuela was placed in reasonable fear of injury. He also assigns error to the allegation that she was "intentionally and repeatedly" followed, noting that the statute requires proof only that the victim was repeatedly followed. RCW 9A.46.110(1)(a).
Liberal construction of the language in the information provides notice to Mr. Scott of each essential element of the crime of stalking. Although specific reference to Ms. Valenzuela's fear of injury is missing, this element is implied by the allegation that she was intimidated, that Mr. Scott intended to frighten her, and that he knew or reasonably should have known that she was afraid. Read in a commonsense manner, the words of the charging document indicate that Ms. Valenzuela was afraid for her safety. Mr. Scott's additional argument that the information contains an added element — intentional following — is relevant only to the State's burden of proving each element alleged in the information.
Although the language of the information could have more specifically alleged that Ms. Valenzuela was placed in fear of injury to herself, this court will uphold the validity of the charging document unless Mr. Scott can show actual prejudice. Tandecki, 153 Wn.2d at 849; Kjorsvik, 117 Wn.2d at 106. Mr. Scott asserts that this court must assume prejudice, citing State v. McCarty, 140 Wn.2d 420, 425, 998 P.2d 296 (2000). However, McCarty declares that prejudice must be presumed only if the essential elements are missing or cannot be fairly implied. 140 Wn.2d at 425. As discussed above, fear of injury is reasonably implied in the charging language. Because Mr. Scott makes no further argument that the inartful language prejudiced his defense, we conclude that the charging document is adequate.
Jury Instructions
For the first time on appeal, Mr. Scott contends certain jury instructions were erroneous. He assigns error to instruction 11, which defines the crime of stalking; instruction 12, which describes what elements the jury must find to convict; and instruction 18, which states an inference of intent or knowledge. He argues that instructions 11 and 12 allowed the jury to convict on uncharged alternative means of committing the crime, while instruction 18 relieved the State's burden of proving every element of the crime beyond a reasonable doubt. Because each of these alleged errors in instruction are of constitutional magnitude, they may be raised for the first time on appeal. State v. Roggenkamp, 153 Wn.2d 614, 620, 106 P.3d 196 (2005) (failure to properly instruct on an element of a charged crime is an error of constitutional magnitude); State v. Randhawa, 133 Wn.2d 67, 76, 941 P.2d 661 (1997) (an inference instruction violates due process if it relieves the State's burden of proving every element).
Jury instructions must be supported by substantial evidence, allow the parties to argue their theories, and inform the jury of the applicable law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). This court reviews de novo whether the trial court's jury instructions accurately and clearly state the law. State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002); State v. Chino, 117 Wn. App. 531, 538, 72 P.3d 256 (2003).
Mr. Scott asserts that the trial court's jury instructions permitted the jury to convict him on uncharged alternative means of committing stalking. Specifically, he alleges that there was no allegation in the charging document that Ms. Valenzuela reasonably feared that he intended to injure another person, although the trial court instructed the jury that it could convict Mr. Scott of stalking if it found that Ms. Valenzuela "reasonably feared that the defendant intended to injure her or another person." CP at 28 (emphasis added).
Generally, the elements of a crime include the mental state of the defendant and possibly the victim, the physical act that constitutes the offense, and proof of causation. See, e.g., State v. Smith, 155 Wn.2d 496, 502 n. 5, 120 P.3d 559 (2005); State v. Utter, 4 Wn. App. 137, 139, 479 P.2d 946 (1971). Under the uncharged alternative means doctrine, the trial court may not instruct on an alternative means of committing an offense that was not included in the charging document. State v. Perez, 130 Wn. App. 505, 507, 123 P.3d 135 (2005), review denied (Wash. Sept. 6, 2006).
The focus for the uncharged alternative means analysis is on whether the offense charged has more than one physical act that can be used to establish criminal liability. For example, Chino, 117 Wn. App. at 539, held a person may commit the offense of intimidating a witness by attempting to (1) influence testimony, (2) induce the witness to elude legal process, (3) induce the witness to fail to attend the proceedings, or (4) induce the witness not to report relevant information. In Linehan, 147 Wn.2d at 644, commission of first degree theft is recognized to have alternative means of (1) theft by taking and (2) theft by deception. And see also State v. Bray, 52 Wn. App. 30, 33, 756 P.2d 1332 (1988), where forgery may be committed by either (1) falsely making or altering a written instrument or (2) by possessing or offering a written instrument with knowledge that it is forged.
Whether the alternative means analysis applies is determined by legislative intent in the statute. State v. Arndt, 87 Wn.2d 374, 378, 553 P.2d 1328 (1976). Legislative intent is established by looking to (1) the title of the statute; (2) whether there is "`a readily perceivable connection between the various acts set forth'"; (3) whether "`the acts are consistent with and not repugnant to one another'"; and (4) whether "`the acts may inhere in the same transaction.'" Id. at 379 (emphasis added) (quoting State v. Kosanke, 23 Wn.2d 211, 213, 160 P.2d 541 (1945)). The analysis of whether the legislature intended a crime to have alternative means of commission focuses on the act that constitutes the offense.
In other words, before the uncharged alternative means analysis applies, there must be more than one type of physical act that may be committed by the defendant that could give rise to the criminal charge.
We note that the Washington Supreme Court has applied a somewhat different analysis in the context of civil commitment hearings for sexually violent predators in the recent case of In re Detention of Halgren, 156 Wn.2d 795, 132 P.3d 714 (2006). However, because Halgren deals with civil commitment based on status as a sexually violent predator, rather than criminal punishment for unlawful activity, the traditional analysis of whether there is an alternative means of committing the offense did not apply.
There are three elements to the crime of stalking: (1) the person intentionally and repeatedly harasses or repeatedly follows another person; (2) the victim reasonably fears that the stalker intends to injure him-or herself, his or her property, or another individual; and (3) the stalker either intends to frighten, harass, or intimidate the other person or reasonably should know that the victim feels afraid, intimidated, or harassed. RCW 9A.46.110(1); see also State v. Askham, 120 Wn. App. 872, 881, 86 P.3d 1194, review denied, 152 Wn.2d 1032 (2004).
Merely stating methods of committing a crime in the disjunctive does not, of itself, create alternative means of committing a crime. State v. Laico, 97 Wn. App. 759, 762, 987 P.2d 638 (1999). Here, while the definitional statute for stalking sets out several elements in the disjunctive, there are only two objective physical acts of a defendant that may give rise to criminal liability: (1) intentional and repeated harassment, and (2) intentional following of the other person. RCW 9A.46.110. The remaining elements deal with the subjective mental state of either the defendant or the alleged victim, and therefore cannot be the subject of an alternative means analysis. RCW 9A.46.110.
The information charging Mr. Scott alleged that he both "intentionally and repeatedly follow[ed]" Ms. Valenzuela, and that Mr. Scott also "intimidated and harassed" her. CP at 81. Therefore, the charging document included both of the statutory means of committing the offense of stalking, and there is no uncharged alternative means.
Mr. Scott also appears to argue that, because there are various means of committing harassment, this is still an alternative means case in which the different methods of committing harassment must have been charged in the information. However, definitional statutes do not create an alternative means of committing an offense. Linehan, 147 Wn.2d at 646.
The statute defining stalking adopts the definition of harassment found at RCW 10.14.020, which may arguably provide for more than one means of committing harassment. RCW 9A.46.110(6)(b). However, when a statute contains terms that are defined in another statute, then the definitions from the other statute cannot be used to create alternative means. See State v. Strohm, 75 Wn. App. 301, 309, 879 P.2d 962 (1994). Because the definition for harassment is located in another statute, it is merely a definitional statute that cannot be deemed to create alternative means of committing the offense of stalking.
There are two means of committing the offense of stalking: intentionally and repeatedly harassing, and intentionally following the other person. Both means were alleged in the information charging Mr. Scott with stalking. Therefore, the jury was properly instructed.
Mr. Scott's remaining instructional issue — that the permissive inference in instruction 18 relieved the State of its burden of proof — is without merit. Based on 11 Washington Pattern Jury Instructions: Criminal 36.25 (Supp. 2005) and RCW 9A.46.110(4), instruction 18 informed the jury that it could infer Mr. Scott acted with intent to harass or intimidate Ms. Valenzuela if it found that he attempted to contact or follow her after getting actual notice that she did not want to be contacted or followed. The instruction concluded with the admonition that "[t]his inference is not binding upon you, and it is for you to determine what weight, if any, such inference is to be given." CP at 34.
A permissive inference instruction is unconstitutional unless it is substantially clear that the presumed fact more likely than not flows from the proved fact. Randhawa, 133 Wn.2d at 75. If the permissive inference relieves the State of its burden of proving each essential element of the crime, the instruction violates the Due Process Clause. Id. at 76. We examine the inference in light of the evidence presented to the jury. Id. Here, the proved fact that Ms. Valenzuela and others had told Mr. Scott she did not want to be contacted or followed, and the additional evidence that she changed her telephone numbers numerous times to avoid contact, support an inference that his repeated attempts to follow or contact her were intended to harass or intimidate her. This inferred intention more likely than not flows from the proof that he was informed she did not want to hear from him or to be followed by him. The inference is constitutional under these facts.
Effectiveness of Counsel
Mr. Scott next contends he did not have effective assistance of counsel. To show ineffective assistance of counsel, a defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness, and that this deficient representation prejudiced defendant's case. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999); State v. Wilson, 117 Wn. App. 1, 15-16, 75 P.3d 573 (2003). Legitimate trial strategy or tactics will not support an ineffectiveness of counsel claim. Aho, 137 Wn.2d at 745. Competence is strongly presumed. Wilson, 117 Wn. App. at 16.
Mr. Scott claims his counsel was ineffective in failing to challenge the information, the defective instructions, or the prosecutor's cross-examination of Mr. Scott on prior crimes of dishonesty. Because the information was not defective, Mr. Scott's counsel had no strategic purpose in challenging it.
Defense counsel's failure to object to an erroneous jury instruction may show ineffective assistance of counsel if the jury instruction prejudiced the defendant. Wilson, 117 Wn. App. at 17. As noted above, the trial court gave the jury proper instructions. Moreover, even if the jury instructions were erroneous, Mr. Scott has not demonstrated any prejudice from these instructions. Defense counsel's failure to object to the instructions was not ineffective assistance of counsel.
Finally, Mr. Scott's assertion that the prosecutor improperly inquired into details of a prior offense is without merit. The State was allowed to attack Mr. Scott's credibility on cross-examination by asking him about prior convictions involving dishonesty. ER 609(a). These convictions included forgery, theft, and obtaining a signature by deceit. Cross-examination regarding prior convictions is limited to general questions about the types of the crimes and the punishment, not specific details of the acts leading to the convictions. State v. Clark, 143 Wn.2d 731, 767, 24 P.3d 1006 (2001). When Mr. Scott denied committing the act that was charged as obtaining a signature by deceit, the prosecutor asked about specific details of that charge. Contrary to Mr. Scott's assertion on appeal, defense counsel objected to this line of questioning and the trial court sustained the objection. Accordingly, defense counsel's response to the prosecutor's questions was neither deficient nor prejudicial. Aho, 137 Wn.2d at 745.
Sufficiency of the Evidence
Mr. Scott's final contention is that the evidence does not establish the crime of stalking. His entire argument is stated in the conclusion section of his brief, which asserts only that "Mr. Scott further urges the Court to direct dismissal of the stalking charge due to insufficient evidence of `intent to injure.'" Appellant's Br. at 18.
On review of the sufficiency of the evidence, this court views the evidence in the light most favorable to the State, finding it sufficient if any rational trier of fact could find the elements of the crime beyond a reasonable doubt. State v. Hendrickson, 129 Wn.2d 61, 81, 917 P.2d 563 (1996). Circumstantial evidence is considered as reliable as direct evidence, and all inferences are drawn in favor of the State. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
Mr. Scott was not charged with an intent to injure. The crime of stalking requires proof in part that the victim reasonably feared that the defendant intended to injure the victim or another person. RCW 9A.46.110(1)(b). Ms. Valenzuela and her mother testified that Mr. Scott's repeated attempts to contact and follow Ms. Valenzuela frightened her, especially when he entered her residence without her knowledge. Due to his statements to Ms. Valenzuela, her mother, and Mr. Maley, Ms. Valenzuela also reasonably feared that he would harm Mr. Maley. Mr. Scott's frequent telephone calls and multiple incidents of following Ms. Valenzuela, as well as his aggressive encounters with Mr. Maley, provided sufficient evidence for a rational juror to find that Ms. Valenzuela reasonably feared Mr. Scott intended to injure her or another person.
CONCLUSION
The charging document contains all necessary elements of the crime of stalking, including repeated following of Ms. Valenzuela, placing her in fear of safety to herself, with intent or the reasonable expectation that she would be frightened or harassed, and with a showing that a reasonable person under the same circumstances would be afraid. RCW 9A.46.110. The information does not charge an alternative means under RCW 9A.46.110, and further did not relieve the State of its burden of proof. Finally, Mr. Scott did not establish ineffectiveness of trial counsel or insufficiency of the evidence.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KULIK, J., concur.