No. 50674-9-IThe Court of Appeals of Washington, Division One.
Filed: May 12, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 02-1-01437-9 Judgment or order under review Date filed: 05/24/2002
Counsel for Appellant(s), Eric J. Nielsen, Nielsen Broman Koch PLLC, 810 3rd Ave Ste 320, Seattle, WA 98104-1622.
Counsel for Respondent(s), Julie Dee Cook, Attorney at Law, W 554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
BECKER, J.
Robert Dodson was convicted of felony stalking. An inference instruction allowed the jury to infer an intent to harass from the fact that Dodson continued trying to contact his neighbors after being notified that they did not want contact. Dodson argues the inference instruction violated his right to due process. Because the inference was only part of the State’s proof supporting the intent element of stalking, and the State has shown that the inference flowed more likely than not from Dodson’s knowledge that the Coles did not want contact, we find no error in the instruction and affirm the conviction.
According to the trial testimony, the Coles and Dodson were neighbors who lived a block apart. They developed a friendship in the spring of 2000. The Coles had Dodson over to their house for dinner. He began attending church with them. Dodson eventually told the Coles of his troubled childhood and of his struggles with substance abuse.
Trouble began when the Coles stopped at Dodson’s home one evening in February, 2001 and found him apparently intoxicated. The Coles left. The next day, Dodson called the Coles and went to their house three different times. The encounters were not pleasant. The Coles made it plain to Dodson that they did not like his behavior, and said he should not contact them until he had been drug and alcohol free for at least two weeks. Dodson attempted to contact them twice during the next few weeks but the Coles refused to talk to him.
In mid April, Dodson went to the Cole home and loudly knocked on the door. When the Coles did not answer, Dodson went to the patio door and continued knocking. Eventually, Dodson left but then telephoned the Coles seven or eight times. In early May, Dodson went to the Cole’s house and slashed eleven bags that were filled with yard waste and destroyed some plants. Dodson left a note confessing to the vandalism, and apologized for `putting [the Coles] through this emotional turmoil over the past few months.’
The Coles obtained an anti-harassment order on May 25, 2001 that prohibited Dodson from coming within 20 feet of either of them. Dodson appeared at the hearing and was served a copy of the order. Three days later, Dodson violated this order by walking in front of the Coles’ house. Mrs. Cole called the police to report the violation. Two days later, Dodson walked by the Cole home and made an obscene gesture to Mrs. Cole, who was in the yard. Mr. Cole also saw Dodson make this gesture. Again, the Coles called the police to report the violation. About three weeks later, Tom Cole saw Dodson walking near their house, and called the police. One week later, Dodson walked by while Karen Cole was in the yard and said `why’ as he passed by. Six days later, as the Coles drove by Dodson’s house, they heard a loud bang on the back of their car. Looking back, the Coles saw Dodson behind the car. Tom Cole saw him raise his fist in the air and thought that Dodson appeared angry and was trying to say something. Mr. Cole later inspected the car and found a small dent.
The Coles went back to court to modify the anti-harassment order. The modified order restricted Dodson from coming within 75 feet of the Coles and from being on the same side of the street where the Coles live. Dodson violated the order on December 23, 2001, when he came within 75 feet of the Coles at church. Eight days later, a friend of Dodson’s called the Coles and left a message saying that if the Coles agreed not to press more harassment charges, Dodson would leave the Coles alone.
The State charged Dodson in February, 2002 and tried him in April. At the close of the trial, the court instructed the jury that in order to convict Dodson of stalking, the jury must find that: Dodson intentionally and repeatedly harassed Tom or Karen Cole; that Tom or Karen Cole had a reasonable fear that Dodson intended to injure either of them; and that Dodson either intended to intimidate, frighten, or harass the Coles, or he knew or reasonably should have known that his behavior would have the same effect.[1] In order to assist the jury in determining whether Dodson had the intent to harass, the State requested the following permissive inference instruction:
A person who attempts to contact another person after being given actual notice that the person does not want to be contacted or followed may be inferred to have acted with intent to intimidate or harass the person.
This inference is not binding upon you, and it is for you to determine what weight, if any, such inference is to be given.[2]
The trial court gave the inference instruction over Dodson’s objection. For purposes of enhancing the stalking count to a felony, the court instructed the jury that it would receive a special verdict form. The special verdict form stated that if the jury found Dodson guilty of stalking, it must then determine whether the stalking was in violation of a protective order.[3] The jury answered `Yes’ to the special verdict form. Dodson appeals the court’s decision allowing the inference instruction.
Due process requires that the State bear the burden of proof beyond a reasonable doubt of every essential element of a crime. State v. Hanna, 123 Wn.2d 704, 710, 871 P.2d 135 (1994). In meeting this burden of proof, the State may use evidentiary devices such as inferences. Hanna, 123 Wn.2d at 710. A permissive inference instruction is a jury instruction that allows but does not require the jury to infer an element of the offense from a proven fact. Hanna, 123 Wn.2d at 710. The State is still required, however, to prove that the inferred fact flows from the proven fact. Hanna, 123 Wn.2d at 710. When the permissive inference is only a part of the State’s proof supporting the element of the crime, due process requires that the presumed fact flows more likely than not from proof of the basic fact. Hanna, 123 Wn.2d at 710. But where a presumption is the sole evidence of an element of the offense, the fact proved must be sufficient to support the inference of guilt beyond a reasonable doubt. Hanna, 123 Wn.2d at 710-11. Whether an inference meets the standard required is determined on a case-by-case basis. Hanna, 123 Wn.2d at 712.
Here, the permissive instruction of intent was not the sole proof of Dodson’s intent to harass the Coles. In addition to the evidence of Dodson’s attempts to contact the Coles, the State introduced evidence that Dodson destroyed plants in the Coles’ yard and slashed bags of yard waste. Additionally, there was testimony that Dodson even after issuance of the protective order made obscene gestures and threw something at the Coles’ car as they drove by. Given this additional evidence supporting the intent to harass, the State was only required to show that the presumed fact that Dodson intended to harass the Coles flowed more likely than not from the proven fact of Dodson’s attempt to contact.
Under the facts of this case, this standard is met. Dodson had actual notice that the Coles no longer wanted to be contacted by him — the Coles’ verbal notice after finding him apparently intoxicated, and the notice of the protection order, which Dodson signed in the court hearing. After receiving these notices, Dodson continued to attempt to contact the Coles by repeated telephone calls, going over to the Coles’ home and banging on doors, and walking by their home in clear violation of the protection order. Dodson’s reliance on State v. Randhawa, 133 Wn.2d 67, 941 P.2d 661 (1997), is misplaced. In that case, our Supreme Court found that the inference of recklessness from the proven fact of driving in excess of 10-20 m.p.h. over the speed limit of 50 m.p.h. was improper. There, the court was presented with a single event of speeding upon which it had to determine whether the single event more likely than not supported an inference of recklessness.
In this case, the nature and frequency of Dodson’s attempts to contact the Coles made it readily inferable that he intended to harass or intimidate them. The inference instruction was appropriate.
Affirmed.
GROSSE and COX, JJ., concur.