Opinion
No. 61302-2-I.
October 19, 2009.
Appeal from the Superior Court, King County, No. 07-1-02005-1, Jeffrey M. Ramsdell, J., entered January 14, 2008.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Cox and Lau, JJ.
A jury found Lester Purdell Thompson guilty of assault in the second degree while armed with a deadly weapon, assault of a child in the third degree while armed with a deadly weapon, and felony harassment. Thompson appeals his felony harassment conviction. Thompson argues the State failed to prove beyond a reasonable doubt that the victim was placed in reasonable fear that Thompson would carry out his threat to kill her. Thompson also contends the trial court erred in calculating his offender score and rejecting his claim that a previous court found two prior juvenile dispositions encompassed the same criminal conduct. Because a rational trier of fact could have found beyond a reasonable doubt that the victim heard Thompson's threat to kill her and she reasonably feared he would carry out the threat, we conclude substantial evidence supports the felony harassment conviction. We also conclude the trial court did not err in calculating his offender score, and affirm.
FACTS
Sharonda Stokes lives with her son R.T. in a three-story townhouse in Seattle. Lester Purdell Thompson is R.T.'s father. Stokes's friend and neighbor Dorothea Noles lives next door. Their townhouses are located next to each other at the top of a flight of stairs and share a front porch. A garage is located on the ground level.
The front door entry to the townhouse is located on the second floor. The living room and kitchen are also on the second floor. To the right of the front door are two flights of stairs going up to the third floor. On the landing between the two flights of stairs is a bathroom. The two bedrooms are located on the third floor.
On March 10, 2007, Thompson spent the night with Stokes at her townhouse. At the time, R.T. was four years old. In the early afternoon the next day, Stokes and Thompson argued. Stokes said that Thompson was "acting crazy." Noles heard them arguing and called 911. Two police officers arrived and spoke to Stokes and Thompson. Thompson agreed to leave.
At approximately 1:30 p.m., Stokes and Noles were standing on the front porch when they saw Thompson approaching. Stokes grabbed R.T., ran into her townhouse, and locked the door. Noles went into her townhouse. Thompson started pounding and kicking the front door, trying to get into Stokes's townhouse. Noles heard the pounding and Stokes screaming. Noles called 911. Notes told the 911 operator that Thompson was kicking Stokes's door and had successfully kicked the front door open. Noles told the 911 operator, "He's tryin' to kill her, please come." While Noles is talking to the 911 operator, screaming can be heard in the background.
After Thompson kicked the door open, he grabbed a four-inch knife, and chased Stokes. R.T. started to cry. Thompson told him to stop crying. When R.T. would not stop, Thompson swung the knife at him, causing two, two-inch lacerations on the back of R.T.'s left hand and wrist. Stokes ran out of the townhouse with R.T. and went next door to Noles's townhouse. Noles was still on the phone with the 911 operator.
Noles told the 911 operator that Thompson had come into her house and had "a knife in his hand." Thompson pleaded with Noles through her locked bedroom door to not call the police. Meanwhile, Stokes and R. T. returned to Stokes's townhouse. Thompson left Noles's townhouse, and went back to Stokes's townhouse. Thompson confronted Stokes in her bedroom on the third floor and demanded that Stokes give him the keys to her car.
Officer Mark Oliphint, Officer Wendy Moss, and Officer Shaw Benshoof responded to the 911 call. When Thompson saw the police officers arriving, he ran to the front porch to confront them with an eight-inch kitchen knife in his hand. Thompson pointed the knife at the officers and told them to leave. The officers drew their guns and Officer Oliphint ordered Thompson to drop the knife. Thompson dropped the knife, but then picked it up and ran back into Stokes's townhouse.
The officers could hear a woman screaming from the third floor. The woman yelled, "we're up here." A few moments later, they heard Thompson yell, "I've got a hostage. I'll kill her if you don't leave!" The officers said they then heard a woman screaming and things breaking. Officer Oliphint and Officer Moss rushed into the townhouse and went up to the landing between the two sets of stairs and told Thompson he needed to come down from the third floor. After a two-minute standoff, Thompson came down the stairs from the third floor with his hands raised. The officers arrested Thompson.
Stokes appeared to be in a state of shock. She repeatedly said, "He kept cutting at me. He kept stabbing me." Stokes had a half-inch puncture wound in her right thigh and a half-inch puncture wound in her right buttock. Stokes told the officers that she was crouched in the corner of the master bedroom while Thompson was yelling down to the police from the bedroom doorway. Officer Oliphant found a four-inch steak knife on the pillow of the master bedroom and an eight-inch knife on the kitchen counter. Stokes refused to let the police take photos of her injuries. The officers took photos of the door frame and the cuts on R.T.'s hand and wrist.
The State charged Thompson with burglary in the first degree — domestic violence, Count I, assault in the second degree — domestic violence, Count II, assault of a child in the second degree — domestic violence, Count III, two counts of unlawful imprisonment — domestic violence, Count IV and V, and felony harassment — domestic violence, Count VI.
The three officers who responded to the 911 call, Noles, and Stokes testified on behalf of the State at trial. The court also admitted the three 911 calls into evidence. In the first call, Noles told the 911 operator that Thompson, who she referred to as her nephew, was out of control and upsetting his girlfriend, Stokes. Noles asked the dispatcher to send an officer. The second 911 call was made by Stokes. Stokes said that her ex-boyfriend was trying to get into her house and was kicking the door open. Stokes asked the 911 dispatcher to send the police and said, "Hurry, he is going to kill me." Stokes then screamed after Thompson entered the house. In the third 911 call, Noles told the dispatcher that Thompson was kicking Stokes's front door in. Screaming can be heard in the background. Noles said that she believed Thompson had hurt Stokes. Noles told the 911 operator that Thompson then came into her house with a knife in his hand. While she was on the phone with the 911 operator, Noles said that Thompson had returned to Stokes's house and the police had arrived.
Noles testified about the two calls she made to 911. Noles said that she made the first call when she heard Thompson and Stokes arguing loudly, but she could not hear what they were saying. Noles stated that when Thompson returned to the house that afternoon, he did not look happy. Noles testified that she heard Thompson pounding on Stokes's door and yelling at Stokes to let him in. Noles said that she was scared for Stokes. When she heard Stokes screaming, Noles called 911 again. While Noles was on the phone to the 911 dispatcher, Noles said that Stokes came into her townhouse, followed by Thompson.
Stokes testified that Thompson pushed open the door to her townhouse, but said that he was not angry and did not kick or pound on the door. Stokes said that when Thompson came in, she grabbed a knife because she thought Thompson might hurt her. Stokes said that she remembered calling 911, but she could not remember the conversation with the dispatcher or anything after that. Stokes said that she did not recall telling the 911 dispatcher that she was afraid that Thompson was going to kill her. Stokes testified that she attacked Thompson with the knife, he grabbed the knife away from her, and she and R.T. then ran to Noles's townhouse. Stokes said that when she ran back to her townhouse, Thompson followed her upstairs to the bedroom. Stokes said that when the police came, she could see them through the bedroom window. Stokes testified that she could hear the police and Thompson talking, but she did not remember what they said.
Stokes said that she did not get cut and she could not remember Thompson stabbing her. Stokes denied telling the officers that Thompson waved a knife at her. Stokes said that Thompson never came after her or R.T. with a knife. She also denied hearing Thompson say that he had a hostage or that he was going to kill her. According to Stokes, Thompson was in the bedroom doorway, but not close to her. Stokes also testified "I didn't want to come in and testify until you sent the police to my house."
Officer Oliphint testified about Thompson brandishing a knife at the police. Officer Oliphint said that after Thompson ran upstairs, he could hear a woman screaming from upstairs and shouting "we're up here." Officer Oliphint and Officer Moss testified that a few moments later, Thompson yelled, "I've got a hostage. I'll kill her if you don't leave."
Officer Benshoof testified that when he was outside the front door, he could hear Thompson yelling and a woman and child crying and screaming. Officer Moss also testified that she could hear a woman screaming and "[t]he male voice yelled: `I've got a hostage. I'll kill her if you don't leave.' Then we continued to hear the female screaming and things breaking."
After they arrested Thompson, Stokes showed Officer Moss the puncture wounds on her thigh and buttocks. Stokes also told Officer Moss that Thompson kicked her. Officer Moss testified that Stokes told her that Thompson had yelled at R.T. to stop crying or Thompson would cut him. Stokes told Officer Moss that when R.T. did not stop crying, Thompson started slashing at him with the knife.
Thompson testified that he and Stokes had a fight about the car. Thompson said that he left when the police asked him to leave, but returned because it was raining and he did not have a coat. Thompson said that he knocked on the door and asked Stokes to give him his coat and socks. Thompson stated that Stokes cracked the door open and when he pushed it open, the door came off the hinges. According to Thompson, Stokes grabbed a knife and while Thompson was trying to pry the knife out of her hand, R.T. got between them. Thompson admitted that he kicked Stokes out of anger as she ran away and that he screamed and yelled at her.
Thompson admitted following Stokes to Noles's house and asking Noles to not call the police. Thompson testified that he then followed Stokes to her bedroom and asked for the car keys. Thompson said that when Stokes would not give him the keys, he threw the knife on the bed and walked downstairs to leave. Thompson testified that when he saw the police, he grabbed another knife and went out to the porch in an effort to get the police to leave. Thompson said that he was scared and ran back into the house, but he did not go back upstairs to the bedroom. Instead, Thompson said that he stayed on the landing between the two sets of stairs. Thompson admitted telling the police that he had a hostage, but said he was not really talking about anyone in particular. Thompson said that he heard Stokes tell the police "we're up here," but denied hearing her screaming. In closing, the defense argued that Thompson's testimony and Stokes's testimony at trial was more credible than the testimony of the officers.
The jury found Thompson guilty of assault in the second degree while armed with a deadly weapon, assault of a child in the third degree while armed with a deadly weapon, and felony harassment. The jury acquitted Thompson of the two counts of unlawful imprisonment and burglary in the first degree. With an offender score of eight for the assault and harassment convictions, and an offender score of nine for the assault of a child conviction, the court imposed a concurrent sentence of 62 months for assault in the second degree, 57 months for assault of a child in the third degree, and 54 months for felony harassment.
ANALYSIS
Felony Harassment Conviction
Thompson asserts that insufficient evidence supports his felony harassment conviction. Thompson argues the State failed to prove that his threat to kill Stokes placed her in reasonable fear that he would carry out the threat. Thompson relies on his testimony and the testimony of Stokes at trial to argue there was insufficient evidence to support finding that Stokes heard the threat, and even if she did, that it placed her in reasonable fear that Thompson would carry out the threat to kill.
The elements of a crime may be established by either direct or circumstantial evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). "The test for determining the sufficiency of the evidence is whether, 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. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. 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, 83 P.3d 970 (2004).
A person is guilty of felony harassment if without lawful authority, the person knowingly threatens to kill a person and places the person threatened in reasonable fear that the threat will be carried out. RCW 9A.46.020; State v. C.G., 150 Wn.2d 604, 609, 80 P.3d 594 (2003). "Threat" means to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened. RCW 9A.04.110(27)(a). The State had the burden of proving beyond a reasonable doubt that Thompson placed Stokes in reasonable fear that his threat to kill her would be carried out.
RCW 9A.46.020 provides in pertinent part:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; [and]
. . .
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.
. . .
(2)(b) A person who harasses another is guilty of a class C felony if . . . the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person.
Thompson argues that based on his testimony and Stokes's testimony, Stokes could not hear the threat and even if she could hear the threat, she was not placed in reasonable fear that he would carry it out. Thompson asserts that as in C.G., his conviction must be reversed.
In C.G., C.G. threatened to kill a vice-principal at school. Although the vice-principal testified that the threat "caused him concern," the court concluded there was insufficient evidence that the vice-principal was placed in reasonable fear that C.G. would kill him. C.G., 150 Wn.2d at 607, 612. In determining whether sufficient evidence supported the conviction, the court held that "the nature of a threat depends on all the facts and circumstances. . . ." C.G., 150 Wn.2d at 611.
Thompson also relies on State v. J.M., 144 Wn.2d 472, 477, 28 P.3d 720 (2001), and State v. Kiehl, 128 Wn. App. 88, 94, 113 P.3d 528 (2005), to argue that there was no evidence that Stokes heard the threat or in the alternative, was placed in reasonable fear that Thompson would carry out the threat to kill her.
In J.M., the court held that the harassment statute does not require the defendant to know that the threat will be communicated to the victim. But the victim must actually have found out about the threat. J.M., 128 Wn.2d at 482. In Kiehl, the court reversed because there was no evidence that the victim was informed of the threat or placed in fear that the threat would be carried out. Kiehl, 128 Wn. App. at 94.
Unlike in C.G., J.M., and Kiehl, substantial evidence supports the jury's finding that Stokes heard Thompson's threat that he would kill her and that the threat placed Stokes in reasonable fear that Thompson would carry out the threat to kill.
Also here, unlike in Kiehl, the court properly instructed the jury, "A person commits the crime of felony harassment when he or she, without lawful authority, knowingly threatens to kill the person threatened or any other person and when he or she by words or conduct places the person threatened in reasonable fear that the threat to kill will be carried out."
Stokes made inconsistent statements at trial about Thompson's location while the police were in the house. Stokes also repeatedly stated that she could not remember events. Stokes said, "I'm not sure if he ran downstairs and he came back up. I don't really remember." Stokes also testified that she could hear the police and Thompson talking, but she did not remember what they said. When the prosecutor asked where Thompson was while the police were downstairs and she was in the bedroom, Stokes said that Thompson was in the doorway of the bedroom, but was not close to her.
When the officers arrived, they heard Thompson yelling and heard Stokes screaming and shouting "we're up here." Officer Moss testified that she heard a woman screaming and a male voice yelling, "I've got a hostage. I'll kill her if you don't leave," followed by the female screaming again. In the 911 call and after Thompson was arrested, Stokes said that she was afraid that Thompson was going to kill her, but she did not want to get him into trouble. Officer Moss testified that she and Officer Oliphint went up to the landing and could hear Thompson yelling from above.
Officer Oliphint testified that he told Thompson to come down to the landing and when Thompson came down to the landing, he put Thompson in handcuffs. Officer Oliphint said it looked like Thompson came from the master bedroom. Officer Oliphint also said that Stokes told the officers that she was in the corner of master bedroom when Thompson was in the doorway yelling at the officers. After the officers arrested Thompson, Stokes told the officers that Thompson had a steak knife in his hand and was waving it at her. Stokes showed the officers the puncture wounds on her thigh and buttocks from the knife.
Viewing the evidence in the light most favorable to the State, the jury could have found beyond a reasonable doubt that Stokes heard the threat to kill and was placed in reasonable fear that Thompson would carry out his threat to kill her. We defer to the jury's determinations of credibility. State v. Hanson, 126 Wn. App. 276, 281, 108 P.3d 177 (2005). ("[R]ecantations are not rare in criminal trials and are inherently questionable."). Here, the jury was entitled to believe the officer's testimony about what Stokes told them and disregard Stokes's testimony at trial.
Offender Score Calculation
Thompson contends the trial court erred in calculating his offender score. Thompson claims that a prior court previously found two of his juvenile offenses constituted the same criminal conduct. The State concedes that if a prior court found that the juvenile adjudications were the same criminal conduct, the sentencing court is bound by that prior determination. But the State argues there is no evidence that a prior court found that the juvenile offenses were the same criminal conduct.
"The State bears the burden of proving the existence of prior convictions by a preponderance of the evidence." State v. Bergstrom, 162 Wn.2d 87, 93, 169 P.3d 816 (2007). We review the trial court's calculation of a defendant's offender score de novo. State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994).
Under the Sentencing Reform Act of 1981 (SRA), the court calculates an offender score by totaling the defendant's prior convictions for felonies and certain juvenile offenses. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999). Under RCW 9.94A.589(1)(a), "if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime." See also RCW 9.94A.525(5)(a)(i). To constitute the same criminal conduct, two or more criminal offenses must involve the same objective criminal intent, the same victim, and occur the same time and place. RCW 9.94A.589(1)(a). Under 9.94A.530(2), "Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point."
Here, Thompson does not dispute his criminal history. Thompson has three prior adult felonies and six prior felony juvenile offenses.
Thompson has the following criminal history:Adult Felonies Juvenile Felonies
Crime Date of Sentencing Offense Date 021061202 UNLAWFUL POSSESSION 01/24/2002 02/06/2004 OF A FIREARM 2nd DEGREE 051052747 UNLAWFUL POSSESSION 03/11/2005 07/15/2005 OF A FIREARM 2nd DEGREE 00115135 ASSAULT 3RD DEGREE 03/16/2000 07/13/2001 988043123 TAKING MOTOR VEHICLE WITHOUT 06/21/1998 07/02/1998 PERMISSION 008033551 MALICIOUS MISCHIEF 2nd DEGREE 01/24/2000 05/16/2001 008011913 TAKING MOTOR VEHICLE WITHOUT 01/29/2000 06/13/2000 PERMISSION 008011921 A TTEMPTING TO ELUDE 01/24/2000 06/13/2000 A PURSUING POLICE VEHICLE 008011921 TAKING MOTOR VEHICLE WITHOUT 01/24/2000 06/13/2000 PERMISSION 968084281 MALICIOUS MISCHIEF 2nd DEGREE 07/16/1996 04/15/1997 Based on Thompson's criminal history, the prosecutor calculated his offender score for his conviction of assault in the second degree with a deadly weapon and the harassment convictions as an eight, and his offender score for assault of a child in the third degree as a nine. At sentencing, the State presented certified copies of the judgment and sentence for each of the prior felony convictions.Thompson's attorney noted that between entry of the judgment and sentence in 2001 and the judgment and sentence in 2005, his offender score changed from a three to a five without any convictions in between. Based on an offender score of three in his February 6, 2004 judgment and sentence, Thompson argued that the offender score for the assault should be a seven instead of an eight. The 2004 judgment and sentence sets forth the offender score originally as a four. However, the four is crossed out and a three written in. With an offender score of three and a sentence range of 9 to 12 months, the court imposed a standard range sentence of 10 months. The criminal history section of the 2004 judgment and sentence for unlawful possession of a firearm in the second degree, lists five prior juvenile offenses and one adult felony.
While Thompson's attorney and the court agreed that the offender score of three in the 2004 judgment and sentence may have been based on a finding that the juvenile offenses were the same criminal conduct, the judge did not check the box finding that any of the "prior convictions were counted as one offense in determining the offender score. . . ."
Because the previous sentencing court did not make a finding of same criminal conduct, the court had to make an independent determination about whether the juvenile dispositions encompassed the same criminal conduct. State v. Mehaffey, 125 Wn. App. 595, 600, 105 P.3d 447 (2005) ("The current court is required to determine independently whether other concurrently sentenced prior convictions, not previously determined to be same criminal conduct . . . are nevertheless same criminal conduct. . . ."). Here, the court made an independent determination and found that Thompson's juvenile offenses were not the same criminal conduct because there were different cause numbers and different victims. We conclude the court did not err in determining that Thompson's juvenile offenses did not encompass the same criminal conduct.
We affirm.
WE CONCUR.