Opinion
Nos. 57661-5-I; 58360-3-I.
February 4, 2008.
Appeals from a judgment of the Superior Court for Snohomish County, No. 05-1-02568-3, Ronald L. Castleberry, J., entered January 13, 2006.
Affirmed by unpublished opinion per Appelwick, C.J., concurred in by Becker and Dwyer, JJ.
A jury convicted David Williams of second degree murder with a deadly weapon, for stabbing William "Bucky" Hogan once in the chest. Williams admitted to stabbing Hogan, but argued he acted in self-defense. In addition to a sentence of 224 months, the trial court ordered Williams to pay restitution. He appeals his conviction and the restitution award.
We affirm.
FACTS
On September 30, 2005, David Williams and his girlfriend Casey Garcia encountered William "Bucky" Hogan in a convenience store parking lot. Hogan claimed Garcia owed him $35. Hogan approached the parked car where Garcia sat, and demanded repayment. According to both Williams and Garcia, Hogan was angry and upset. Williams returned to the car after making calls on a pay phone. He observed Hogan yelling at Garcia. Because he was concerned, Williams opened a pocket knife and placed the open knife in his back pants pocket. He approached the car and stood a few feet from Hogan. Angry, Hogan turned and stated that he would kill Williams. Hogan did not brandish any sort of a weapon. Hogan lunged in the direction of Williams, but it is unclear if he made physical contact with him. Williams testified that Hogan head butted him in the chin, but neither Garcia nor any witnesses in the crowded parking lot testified to seeing it. In response, Williams testified he stabbed Hogan once in the chest with the pocket knife. It punctured his heart. Hogan died of a single stab wound to his heart. The stab wound measured between 4.5 and 5 inches in length.
Williams and Garcia drove away. Williams, still holding the knife, admitted to Garcia that he stabbed Hogan. Williams also told a roommate, Shawn Baskins that Hogan "got in his face," head butted him, and was going to hurt him further. Baskins testified that on the day of the incident, he did not observe any injury to Williams' chin, where Hogan supposedly head butted him. Williams told another roommate that he had stabbed someone, who "got what he deserved."
Based on tips, Everett Police Officers contacted Williams the next day. When asked about the stabbing, Williams denied being in Everett. A third person recovered the knife used to kill Hogan from the car Williams used the day of the stabbing. Williams was charged with second degree murder. At trial, Williams claimed he acted in self-defense because he feared Hogan would kill him. Williams said he was defending himself from the head butt. The jury convicted Williams of second degree murder with a deadly weapon. The court imposed a standard range sentence of 224 months of incarceration and ordered Williams to pay $13, 784.27 in restitution.
DISCUSSION
1. Prosecutorial Misconduct
Williams argues he was deprived of a fair trial because of the prosecutor's conduct in six instances. To prevail on a claim of prosecutorial misconduct, Williams must show both improper conduct and prejudicial effect. State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 717 (2000). "A defendant claiming prosecutorial misconduct bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect." State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Prejudice is established only if there is a substantial likelihood that the misconduct affected the jury's verdict. Roberts, 142 Wn.2d at 533. In such circumstances where the defense attorney does not object, move for mistrial, or request a curative instruction, appellate review is only appropriate if the prosecutorial misconduct is so flagrant and ill intentioned that no curative instruction could have obviated the prejudice they engendered by the misconduct. State v. Kendrick, 47 Wn. App. 620, 638, 736 P.2d 1079 (1987); see also State v. Swan, 114 Wn.2d 613, 790 P.2d 610 (1990); State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988).
A. Opening Statement And Direct Examination Of Garcia
Williams claims the prosecutor committed misconduct by violating the pretrial ruling when he made a reference to Williams' involvement in a domestic violence incident during opening statements and when he asked a witness whether Williams was violent while using methamphetamine. In his motion in limine, Williams sought to exclude generally "all prior crimes, bad acts, allegations of misconduct and any other testimony or evidence relating to claims of misconduct, relating to the Defendant be excluded from trial, including for purposes of impeachment should the defendant choose to testify." Additionally the motion specifically requested exclusion of: a) an outstanding bench warrant, b) statements that Williams had previously confronted the witness with a knife, c) discovery material indicating Williams was known to carry a knife, d) Williams' incarceration since his arrest, e) statements made by Williams to an inmate while in custody. The court explicitly granted a through d, but allowed the State to admit statements Williams made to another inmate while in jail. The trial court made no general ruling regarding other wrongful conduct and the parties made no general agreement to generally exclude wrongdoing.
Williams argues two events contravened the ruling. First, during his opening statement, the prosecutor referred to a prior domestic violence dispute between Williams and Garcia. In this dispute, Hogan intervened on behalf of Garcia. Defense counsel objected to the domestic violence reference. The trial court instructed the jury to disregard the statement and stated the prosecutor's statements were not evidence. After opening arguments, defense counsel moved to dismiss. The trial court denied the motion. Second, during his direct examination of Casey Garcia, the prosecutor asked about Williams' demeanor while using methamphetamines. He asked, "[d]id it ever make him violent?" She said yes and the prosecutor asked, "when"? Before she could respond, defense counsel objected. The trial court sustained the objection.
Williams has not established the prosecutor committed misconduct during opening statements and in his questioning of Garcia. Williams argues the prosecutor's comments directly violated the motion in limine ruling. The court however only ruled on the specific items requested for exclusion; there was no general ruling that covered the prosecutor's statements. Moreover, if introduced as evidence, the references to domestic violence and to Williams' demeanor while using methamphetamines would be appropriate and admissible. The reference to the domestic violence dispute and Hogan's intervention would be appropriate if the State intended to introduce it as evidence of motive. Likewise, if a proper foundation was laid to establish Williams used methamphetamine on the day of the stabbing, the State could ask questions of Garcia about his demeanor when using the drug. The prosecutor's comments were not per se inappropriate.
Williams also does not establish he suffered prejudice from the prosecutor's statements.
Where the defendant does object or moves for mistrial on the basis of alleged prosecutorial misconduct, this court will give deference to the trial court's ruling on the matter. "The trial court is in the best position to most effectively determine if prosecutorial misconduct prejudiced a defendant's right to a fair trial."
State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997) (quoting State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995)). The trial court sustained the first objection and instructed the jury to disregard the argument of the prosecutor and sustained the second objection before an answer was given. The trial court denied Williams' motion to dismiss based on these incidents. The trial court was in the best position to determine whether the statements were prejudicial, and found they were not. There was no prosecutorial misconduct.
B. Opening Statement Saving Williams Lies To The Police
During his opening statement, the prosecutor said that when Williams was contacted initially he "lies to the police when they ask him whether he was involved." Williams argues the prosecutor engaged in misconduct by introducing inadmissible evidence. During a Criminal Rule (CrR) 3.5 hearing, the trial court excluded all other statements, but explicitly allowed as evidence Williams' statements to police that he was not in Everett the day of the stabbing. The prosecutor's statement was not misconduct because it was a permissible characterization of the evidence. According to the State, Williams told police he was in Everett the day of the stabbing. Based on the CrR 3.5 hearing, this was an admissible statement. During trial, Williams admitted to the stabbing. By suggesting that Williams lied to police, the prosecutor merely offered one theory to explain this discrepancy. Moreover, Williams admits he suffered no prejudice. There was no error.
C. Asking Williams If He Was Lying To Save His Own Skin
Williams claims the prosecutor's questions during cross-examination impermissibly inserted the prosecutor's own opinions as to the credibility of a witness. The prosecutor asked Williams:
Q: You lied about not being in Everett, you lied about not being in a fight, you lied about there not being a head butt; is that correct?
A: That is correct.
Q: And you are lying to the jury now, aren't you?
A: No, I'm not.
Ms. Tarantino: Objection. Argumentative.
Court: Let the answer stand.
Q: When the chips are down and your back's against the wall, you will lie to save your own skin, won't you?
Ms. Tarantino: Objection. Argumentative.
Court: Sustained as to form.
If a defendant chooses to testify, he or she is subject to cross-examination regarding any material matters within the scope of his or her direct testimony. State v. Olson, 30 Wn. App. 298, 301, 633 P.2d 927 (1981). A prosecutor may not however insert his or her own personal opinion about the credibility of a witness. State v. Reed, 102 Wn.2d 140, 145-6, 684 P.2d 699 (1984). Williams argues under Washington law it is argumentative and improper for a defendant to ask a defendant if he is lying. He relies on State v. Green. The court in State v. Green found the prosecutor's questions to defendant regarding whether he was a "professional burglar" improper. 71 Wn.2d 372, 380, 428 P.2d 540 (1967). The court also found asking a defendant if the police were mistaken or lying invaded the province of the jury. Id. Green does not support the contention that it is impermissible to ask a defendant whether he is lying on the stand or lied when questioned by police. Williams cites no authority that supports his argument it is impermissible to ask a defendant if he is lying.
Williams also fails to show the questions were prejudicial. Williams' counsel objected to the questions and was initially overruled by the trial court. Prejudice is not shown where objectionable testimony, admitted after a valid objection was made, was not sufficiently damaging that we can say there is a reasonable probability it affected the outcome of the trial. State v. Casteneda-Perez, 61 Wn. App. 354, 364, 810 P.2d 74 (1990). Second, Williams admitted he lied to police. The prosecutor's subsequent questions, regarding whether he was "l[ying] to save [his] own skin" did not prejudice Williams. Once Williams had already conceded he had lied to police, the additional questions were not prejudicial.
D. Questions To Police Detective Regarding Knives
Williams argues the prosecutor contravened a pretrial ruling and committed misconduct when he elicited testimony from a police detective about knives found in the home of the defendant. In a pretrial ruling, the trial court granted a motion in limine to exclude testimony from a witness that "Williams had pulled a knife on him in the past during an argument." The trial court also granted defendant's motion to exclude testimony that "Williams was known to carry a knife." Neither the trial court nor the defendant's motion in limine addressed the testimony at issue in this part of the appeal: whether the prosecutor was barred from eliciting testimony about knives generally.
It is generally true that "[e]vidence of weapons is highly prejudicial, and courts have `uniformly condemned . . . evidence of . . . dangerous weapons . . . which have nothing to do with the crime charged.'" State v. Freeburg, 105 Wn. App. 492, 501, 20 P.3d 984 (2001) (quoting United States v. Warledo, 557 F.2d 721, 725 (10th Cir. 1977)).
Williams appeals this exchange:
Q: "Okay. And were any knives seen in the residence?"
A: Yes, there were several knives that were found throughout the residence.
Q: Different sizes?
A: Yes, different sizes, different types, anywhere from steak knives to large ornamental or ceremonial type knives.
Defense counsel did not object to the testimony. The actual knife used to stab Hogan was recovered separately.
Because there was no objection at trial, to succeed on a claim of prosecutorial misconduct, Williams must show the testimony about knives was so flagrant and ill intentioned that no curative instruction could have obviated the prejudice it engendered by the misconduct. Kendrick, 47 Wn. App. at 638. The record does not support a finding of misconduct. While the pretrial ruling specified instances where the prosecutor could not introduce evidence of defendant's prior use of knives, it did not address the issue presented here. There is simply no indication the questions constituted a flagrant or ill intentioned act on the part of the prosecutor. Further, even if the questions were improper, Williams has not demonstrated prejudice. The fact that the weapon was unrelated to the charged crimes decreased its potential prejudicial effect: the State presented the actual weapon used to stab Hogan, which Williams admitted to using. The answer by the detective did not identify knives specifically that would be used as weapons. Instead, he identifies them as steak knives to ceremonial type knives. He does not link them specifically to Williams as opposed to any of the other residents. The questioning, while extraneous, did not infer anything about defendant's guilt or propensity for violence.
E. Examination Of Vedder And Closing Argument Reference To The Prosecutor's Office
Williams contends the prosecutor twice improperly interjected his personal performance in the case. It is improper for a prosecutor to express his personal opinion about the credibility of a witness and the guilt or innocence of the accused in jury argument. Reed, 102 Wn.2d 140. Likewise, a prosecutor may not place the integrity of his or her office on the side of a witness's credibility. State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985) reversed on other grounds by 49 Wn. App. 64, 741 P.2d 1017 (1987). "Comments will be deemed prejudicial only where there is a substantial likelihood the misconduct affected the jury's verdict." McKenzie, 157 Wn.2d at 52.
First, the prosecutor asked a witness who had previously agreed to a plea deal with the Snohomish County Prosecutor's Office whether she was "treated fair?" The witness, Dana Vedder, replied "[y]es, you did." Defense counsel did not object. The prosecutor's comments in this incident do not rise to the level of direct support of the credibility of a witness nor do the statements seek a conviction based on the integrity of the office. The prosecutor did not vouch for the credibility of Vedder or ask her to comment on his office's interest in seeking justice.
According to Williams, the prosecutor also committed misconduct during closing arguments when he referred to Hogan's criminal record and stated "frankly he was a pain in the rear to our office from all those convictions that we put before you that he had; but that's not what this case is about." Defense counsel did not object. According to Williams, this statement was an impermissible "skunk in the jury box" because it was an effort to demonstrate the prosecution's interest in seeking justice. The totality of the statement makes no reference or implication regarding the prosecutor's interest in seeking justice. Instead, it asked the jurors to look beyond the lifestyle of the victim and to focus on the particular issue before them. The criminal convictions and prosecutions of Hogan were already in the record. There was no misconduct.
F. Questions Of Williams Regarding Incarceration Pending Trial
Williams argues the prosecutor committed misconduct by violating a pretrial ruling when he asked the defendant whether he wrote, "love letters from the jail." The trial court granted defendant's motion in limine to exclude all references to jail, except in the context of the testimony Mr. Sidley, who shared a cell with Williams and overheard the defendant confessing to killing Hogan. The trial court ordered: "Other than Mr. Sidley, there will be no mention of his [Williams] being in jail." Despite this ruling, after asking Williams about the testimony of Sidley, the prosecutor elicited the following:
Q: Stayed in contact with Casey Garcia ever since the stabbing?
A: No.
Q: You haven't been writing her love letters from the jail?
A: I did. I was in contact with her for three weeks or so after I was arrested, and then I didn't know where she was, and so I called a few places trying to get hold of her and —
Q: Wrote quite a few love letters, didn't you? A: Right. A few, yeah, I don't know. Quite a few, a few. Just wrote down my feelings.
The prosecutor's questions clearly contravened a pretrial ruling. Failure to object however to an improper remark constitutes a waiver unless it is clearly ill intentioned and flagrant. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). His counsel did not object and thus waived the error unless he can meet this higher standard. In Belgarde, the trial court reversed a conviction for murder where the prosecutor remarked during closing arguments that the defendant was strong in a group which he described as "a deadly group of madmen" and as "butchers, that kill indiscriminately." 110 Wn.2d at 506-507. Although defense counsel made no objection during trial, the court found the statements appealed to the passions of the jury and encouraged a verdict on evidence outside the record. Id. at 508. The comments were "flagrant, highly prejudicial and introduced `facts' not in evidence." Id. Williams however, has failed to show the prosecutor's questions regarding correspondence from jail meet this heightened standard. Unlike Belgarde, here an instruction could have cured any prejudice by explaining that some defendants are unable to make bail, but it should not be considered by the jury in determining guilt.
Additionally, for Williams to succeed he must show it was prejudicial and impinged his right to a fair trial. Williams argues the exchange amounts to a reversible error because the jury may infer guilt based on the temporary incarceration. In State v. Finch, the Washington Supreme Court held physical restraint of a defendant during trial may constitute a reversible error. 137 Wn.2d 792, 844-45, 975 P.2d 967 (1999). Previously, in State v. Mullin-Coston this court rejected the analogy between physical restraint cases and references to a defendant's incarceration pending trial. 115 Wn. App. 679, 693-94, 64 P.3d 40 (2003). The fact that a defendant is in custody pending a murder trial does not carry the same inherent prejudice as the sight of a defendant in shackles. Mullin-Coston, 115 Wn. App. at 692. The Mullin-Coston court observed that "[j]urors must be expected to know that a person awaiting trial will often do so in custody." Id. at 693. It found no prejudice when the trial court admitted testimony that referenced a defendant's incarceration pending trial. Id. at 693-94. Likewise, Williams has failed to show he suffered prejudice. The exchange between the Williams and the prosecutor was brief and the State only used the exchange to clarify that Williams had indeed been in contact with Garcia, which he initially denied. The prosecutor made no further mention of Williams' jail time pending trial and never referenced it in the context of guilt or innocence.
G. Closing Argument Characterization Of The Law Of Self-defense
Williams claims the prosecutor's characterization of the law of self-defense constitutes misconduct. Self-defense is proper when a person reasonably believes he or she is about to be injured in preventing or attempting to prevent an offense against the person and when the force is not more than necessary. RCW 9A. 16.020. Self-defense is evaluated by the jury both objectively and subjectively. State v. LeFaber, 128 Wn.2d 896, 899, 913 P.2d 369 (1996). The objective portion of the evaluation requires the jury to determine what a reasonably prudent person similarly situated would have done. The subjective perspective requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her. State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993). The degree of force used in self-defense "is limited to what a reasonably prudent person would find necessary under the conditions as they appeared to the defendant." State v. Walden, 131 Wn.2d 469, 474, 932 P.2d 1237 (1997); see State v. Bailey, 22 Wn. App. 646, 650, 591 P.2d 1212 (1979).
Here, the prosecutor stated what self-defense "boils down to is what is the appropriate use or level of force in the situation that this defendant says he found himself in." The prosecutor also said, "[y]ou can't kill somebody for a punch in the nose. . . . that's not self[-]defense." At another point, the prosecutor stated, "the law doesn't allow you to use a knife to settle an argument." Defense counsel did not object to any of these statements. While the prosecutor's choice of words were inexact, the statements were not improper. He simply referred to the law of self-defense, which requires a defendant to only use force that is not more than necessary. Moreover, because defense counsel did not object, the statements only constitute misconduct if they are so flagrant and ill intentioned that no curative instruction could have obviated the prejudice they engendered by the misconduct. Kendrick, 47 Wn. App. at 638. The prosecutor's comments did not misstate the law. There was no misconduct.
2. Jury Instructions
Williams argues he was denied effective assistance of counsel when his attorney proposed jury instructions that erroneously stated the law of self-defense. To establish a claim of ineffective assistance of counsel, Williams must show the trial attorneys' representation was deficient and that the deficiency prejudiced his defenses such that the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 222-26, 743 P.2d 816(1987).
Jury instruction 19 stated that "[h]omicide is justifiable when committed in the lawful defense of the slayer when: 1) the slayer reasonably believed that the person slain intended to inflict death or great personal injury." Jury instruction 20 provided a definition stating "`great personal injury' means an injury that the slayer reasonably believed, in light of all the facts and circumstances known at the time, would produce severe pain and suffering if it were inflicted upon either the slayer or another person." Jury instruction 22 stated the defendant could "act on appearances" in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger."
Here, the jury instruction was improper and counsel, in proposing it, was deficient. In Walden, the Washington Supreme Court held "great bodily harm" was the improper instruction for self-defense. Walden, 131 Wn.2d at 476-77. The instructions were erroneous because they prohibited the jury from considering the defendant's subjective perspective of the facts and circumstances. Walden, 131 Wn.2d at 477. Specifically, the definition would seem to exclude ordinary batteries even if the defendant reasonably believed the battery at issue would result in great personal injury, Id. at 477. Instead, the court announced that the act-on-appearances jury instruction should use the term "great personal injury" instead of "great bodily harm." The term great personal injury means an injury that the defendant reasonably believed, in light of all the facts and circumstances known at the time, would produce severe pain and suffering if it were inflicted upon the defendant. See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal § 17.04 at 203 (2d ed. 1994) (WPIC); 11 WPIC § 2.04.01 at 22 (supp. 2005).
The State however argues Walden's rationale applies only when a jury is also given a definition of great bodily harm. In essence, there is no harm where no definition is given. This court already explained that it is imperative the great-personal-injury standard is used in the act-on-appearances instruction instead of the great-bodily-harm standard. Freeburg, 105 Wn. App. at 505, 507; accord State v. Woods, 138 Wn. App. 191, 156 P.3d 309, (2007). Even left undefined it was improper because it misstated the law of self-defense.
To succeed on a claim of ineffective assistance of counsel, Williams must show his lawyer was both deficient and he suffered prejudice. Although his counsel was deficient in proposing an improper jury instruction, Williams did not suffer prejudice. Freeburg is analogous. 105 Wn. App. at 505. In Freeburg, the jury instructions stated the defendant could act on appearances if he feared great bodily harm, instead of great personal injury. At trial, Freeburg argued that he acted in self-defense when he shot and killed the victim because the victim pointed a gun at him in close range. While this court found the instruction erroneous, it held "[b]ut we observe that there is no likelihood whatsoever that use of the great bodily harm language affected the outcome here. Freeburg's theory at trial was that he was faced with a threat of gunshot at close range, which easily and obviously satisfies both definitions." Id. at 505.
Likewise, Williams' theory during trial was that he acted in self-defense because Hogan threatened to kill him. Williams testified he subjectively took the threat seriously, believing that Hogan was a violent person with a reputation for backing up his threats. Moreover, Hogan was portrayed as a boxer with a criminal record for prior assaults, and someone known to carry knives. If Williams believed Hogan intended to kill him and acted in response to that threat, then either the great personal injury or great bodily harm standard applies. Had the jury here believed Williams faced a death threat and was justified in using deadly force, it could have found so under either instruction. Williams did not establish prejudice resulting from the improper jury instruction and deficient counsel, such that the outcome would have been different.
3. Cumulative Error
Williams argues that although the alleged errors are individually sufficient to justify reversal, their cumulative effect also deprived Williams of his right to a fair trial. The application of the cumulative errors doctrine is "limited to instances when there have been several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). The cumulative error rule does not require reversal in this case.
4. Restitution
The trial court ordered Williams to pay restitution, including burial expenses and a $7,500 lump sum, based on the crime victim's compensation (CVC) act. Williams argues the trial court abused its discretion and violated his due process rights when it ordered him to pay the victim's family $7,500 in a lump sum pursuant to RCW 7.68.070(4). Williams argues recovery of the lump sum is barred by RCW 7.68.070(3)(b) because Hogan sustained his fatal injury while attempting to commit felony harassment or second degree assault. Williams does not challenge whether the award had the proper nexus to the crime or is based on ascertainable damages.
The authority to order restitution is purely statutory. State v. Smith, 119 Wn.2d 385, 389, 831 P.2d 1082 (1992). The CVC act assures a base level of compensation for victims of crime. Haddenham v. State, 87 Wn.2d 145, 148, 550 P.2d 9 (1976). The statute is remedial in nature and any doubt should be viewed in favor of the victim of the crime. Sebastian v. Dep't of L I, 95 Wn. App. 121, 974 P.2d 374 (1999). In a criminal case, the sentencing court has the authority to order restitution when a victim is entitled to benefits under the CVC act. RCW 9.94A.753(7). Determining the amount of restitution lies with the sound discretion of the trial court. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). Thus, a trial court's decision to award restitution will only be overturned upon a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775(1971).
The sentencing court awarded Hogan's wife $7,500 based on RCW 7.68.070(4). The statute establishes a clear mandate to pay a lump sum if the victim's death is the result of a criminal act and if he or she was not employed at the time of the criminal act, or for three consecutive months in the year prior. RCW 7.68.070(4). The Department of Labor and Industries (Department) found Hogan met these requirements and was entitled to the $7,500 lump sum payment. The trial court did not abuse its discretion in ordering the award.
Williams however contends the trial court abused its discretion in awarding restitution because Hogan was engaged in the commission of a felony when he died and thus barred by statute. Williams argues Hogan committed felony harassment when he threatened to kill the defendant as well as assault in the second degree. A victim is not entitled to restitution under the CVC act if when the injury for which benefits are sought was "(a) The result of consent, provocation, or incitement by the victim, unless an injury resulting from a criminal act caused the death of the victim;" or "(b) Sustained while the crime victim was engaged in the attempt to commit, or the commission of, a felony." RCW 7.68.070(3). According to Williams, Hogan verbally threatened to kill him and "made at least a substantial threat toward felony harassment."
A person is guilty of harassment when "the person knowingly threatens: (a)(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." It is a felony if
A person who harasses another is guilty of a class C felony if either of the following applies: (i) The person has previously been convicted in this or any other state of any crime of harassment, as defined in RCW 9A.46.060, of the same victim or members of the victim's family or household or any person specifically named in a no-contact or no-harassment order; or (ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person. RCW 9A.46.020(2)(b).
The threat must be a "true threat," which the person has the objective ability, although he or she may not intend, to carry it out. State v. Kilburn, 151 Wn.2d 36, 43-44, 46, 84 P.3d 1215 (2004).
Two different bodies reviewed the evidence of the altercation between Williams and Hogan. First, the Department reviews the police reports to make a determination that the beneficiaries are entitled to restitution. The initial burden of proof falls on the victim or family of the victim seeking restitution. Stafford v. Dep't of L I, 33 Wn. App. 231, 236, 653 P.2d 1350 (1982). Generally the Department then recommends whether the defendant should be ordered to pay restitution. The Department determined Hogan's widow was entitled to benefits. Second, the jury in convicting Williams rejected his claims of self-defense. Hogan did not pose a threat of great bodily harm to Williams. He argues that a jury verdict cannot be used to speculate about whether Hogan committed a felony. While this is an intriguing argument, Williams fails to provide any authoritative support. His brief only cites to cases that hold the questions a jury asked during deliberations cannot be used post-verdict to attack a conviction or where the verdict is inconsistent. State v. Goins, 151 Wn.2d 728, 733, 92 P.3d 181 (2004); State v. Ng, 110 Wn.2d 32, 43-44, 750 P.2d 632 (1988). Regardless of the jury verdict, Williams concedes that Hogan made only a substantial step toward felony harassment or attempted felony harassment. This is simply insufficient to demonstrate the trial court abused its discretion in ordering a restitution award for $7,500 to Hogan's widow and child.
Wlliams also claims Hogan committed second degree assault because "threatening to kill another person while engaged in aggressive behavior may amount to second degree assault." Williams cites to State v. Leming, to support his contention. 133 Wn. App. 875, 138 P.3d 1095 (2006) review denied, 160 Wn.2d 1006, (2007). Leming simply does not stand for that proposition. Instead, Leming held a charge for assault and felony harassment, when the same crime was alleged constituted double jeopardy. Williams has not demonstrated Hogan's actions met the statutory requirements for second degree assault.
We affirm.