STATE v. LONG, 24158-1-III (Wash.App. 12-21-2006)

No. 24158-1-IIIThe Court of Appeals of Washington, Division Three.
Filed: December 21, 2006. UNPUBLISHED OPINION

Appeal from Spokane Superior Court. Docket No: 04-1-00371-8. Judgment or order under review. Date filed: 03/31/2005. Judge signing: Honorable Harold D Clarke III.

Counsel for Appellant(s), Janet G. Gemberling, Gemberling Dooris PS, Spokane, WA.

Julia Anne Dooris, Gemberling Dooris Ladich, Spokane, WA.

Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, Spokane, WA.

Andrew J. Metts III, Spokane County Pros Offc, Spokane, WA.

Authored by Stephen M Brown, Concurring: Teresa C. Kulik, Dennis J. Sweeney.

BROWN, J.

Ross Long appeals his convictions for first degree theft and second degree malicious mischief. He contends the malicious mischief conviction is not supported by sufficient evidence and the trial court erred in admitting credibility impeachment evidence related to a severed charge. We disagree, and affirm.

FACTS
In October 2002, Mr. Long helped Joshua Mulvey steal a notebook computer at the Davenport Hotel. Mr. Long asked his former girl friend, Amy Dowdy, to lie about his whereabouts in aid of his alibi defense. At a later consolidated trial for theft, the State asked Mr. Long whether he had asked Ms. Dowdy to lie, even though witness tampering charges related to the theft had been severed. We will discuss the relevant facts during the analysis of whether the court erred in permitting the questioning in light of the specific-instances provisions of ER 608(b).

In February 2004, Mr. Long, Mr. Mulvey, Paul Knight, Krystle Schneider, and another woman were drinking at Mr. Long’s apartment when Ms. Schneider related she was mad at her ex-boyfriend, Jeff Richardson. As a result, the group went over to the ex-boyfriend’s apartment where he was visiting his new girl friend, Vanessa Fisher, to vandalize Ms. Fisher’s car that the ex-boyfriend apparently drove. According to Mr. Mulvey, who testified for the State, a car near Ms. Fisher’s car belonging to Janet Toone was also vandalized at that time. We will discuss the relevant facts in our analysis of whether the evidence is sufficient to support the malicious mischief conviction arising from these events.

A jury convicted Mr. Long of first degree theft and second degree malicious mischief. Mr. Long appealed.

ANALYSIS A. Evidence Sufficiency
The issue is whether the evidence is sufficient to support Mr. Long’s conviction for second degree malicious mischief. Mr. Long contends no evidence shows he vandalized Ms. Toone’s vehicle, either as a principal, or an accomplice.

We review a challenge to the sufficiency of the evidence in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

We accept the State’s evidence as true and view all reasonable inferences in favor of the State. Id. Circumstantial evidence is considered to be as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact in matters of witness credibility and the weight to be assigned to the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). We will affirm if the trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinas, 119 Wn.2d at 201.

An individual is guilty of second degree malicious mischief if he “knowingly and maliciously: [c]auses physical damage to the property of another in an amount exceeding two hundred fifty dollars.” RCW 9A.48.080(1)(a).

An individual is guilty as an accomplice if “[w]ith knowledge that it will promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it.” RCW 9A.08.020(3)(a). An individual aids or agrees to aid if he is “‘ready to assist'” in the commission of the crime. State v. Rotunno, 95 Wn.2d 931, 933, 631 P.2d 951 (1981), quoted in In re Welfare of Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979).

Here, Ms. Schneider drove Mr. Long, Mr. Mulvey, and Mr. Knight to Mr. Richardson’s apartment to vandalize his car. She pointed out the car she believed to be Mr. Richardson’s. Mr. Long admitted Ms. Schneider pointed toward two cars and he was not sure about which one she pointed to. Mr. Long, Mr. Mulvey, and Mr. Knight got out of Ms. Schneider’s car and walked toward the cars she pointed to, which belonged to Ms. Fisher and Ms. Toone. Mr. Mulvey was armed with a small baseball bat. Mr. Knight ran ahead of the group and punched the driver’s side window of Ms. Toone’s car. Mr. Long and Mr. Mulvey caught up with Mr. Knight. Mr. Knight had, however, already succeeded in breaking the driver’s side window. The front corner panel of the car had also been damaged. The group then walked to Ms. Fisher’s car and took turns hitting the driver’s side window until it too broke. The damage to Ms. Toone’s car exceeded $250.

Based on this record, sufficient evidence supports Mr. Long’s conviction for second degree malicious mischief as an accomplice. Salinas, 119 Wn.2d at 201. The inference is that Mr. Long was ready to assist in damaging Ms. Toone’s vehicle. Id.; Rotunno, 95 Wn.2d at 933.

B. ER 608(b)
The issue is whether the trial court erred in admitting credibility impeachment evidence under ER 608(b), although the specific instance of conduct, witness tampering, had been severed for separate trial. Mr. Long contends the evidence was unfairly prejudicial under ER 403.

We review a trial court’s decision to admit evidence and to deny a motion for a mistrial for abuse of discretion. State v. Redmond, 150 Wn.2d 489, 495, 78 P.3d 1001 (2003); State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). A court abuses its discretion if its decision is based on untenable grounds or reasons or is manifestly unreasonable. State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003).

Evidence of specific instances of conduct are admissible under ER 608(b) “for the purpose of attacking . . . [a] witness’ credibility.” ER 608(b). The State may inquire about the evidence on cross-examination if it is “probative of [the witness’] truthfulness or untruthfulness” and is “not remote in time.” ER 608(b); State v. Wilson, 60 Wn. App. 887, 893, 808 P.2d 754 (1991). “Any fact which goes to the trustworthiness of the witness may be elicited if it is germane to the issue.” State v. York, 28 Wn. App. 33, 36, 621 P.2d 784 (1980). As with all evidence, it must not be unfairly prejudicial under ER 403(b). Wilson, 60 Wn. App. at 893.

Here, Mr. Long placed his credibility at issue by taking the witness stand. He testified he would “never” bring false evidence to court and he did not ask anyone to lie for him. Report of Proceedings (RP) at 460-61. The State then specifically asked Mr. Long if he had asked Ms. Dowdy to lie to provide him an alibi for the night the computer was stolen, and Mr. Long responded, “I did.” RP at 461. The court admitted the evidence under ER 608(b). The evidence was not previously excluded by a motion in limine or by the order severing the witness tampering charge.

Although this evidence may relate to the underlying facts in a severed charge, it still relates to Mr. Long’s credibility. ER 608(b). Mr. Long has not shown the evidence was improperly admitted under ER 608(b) or that it was unfairly prejudicial under ER 403 (he did not raise an ER 403 objection below). State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182
(1985). Evidence may not be excluded simply because it is detrimental to the party opposing it. See Wilson v. Olivetti N. Am., Inc., 85 Wn. App. 804, 814, 934 P.2d 1231 (1997) (citing State v. Hudlow, 99 Wn.2d 1, 12-13, 659 P.2d 514 (1983)). In sum, the trial court did not abuse its discretion in admitting the evidence or in denying the motion for a mistrial. C.J., 148 Wn.2d at 686.

C. Pro Se Additional Grounds
Mr. Long first contends the State erred in not charging him as an accomplice since the prosecutor relied on the theory at trial. However, the State is not required to charge a defendant as an accomplice. State v. Becklin, 133 Wn. App. 610, 618, 137 P.3d 882 (2006). A defendant who is charged as a principal has adequate notice of potential accomplice liability. Id.

Second, Mr. Long contends the prosecutor inappropriately introduced evidence related to a severed charge (presumably the evidence that Mr. Long asked a witness to lie). As discussed above, the State did not improperly admit the evidence.

Third, Mr. Long contends the State presented a weak case, which was shown by the prosecutor’s conduct in switching between principal and accomplice liability, and in eliciting testimony related to a severed charge. However, we do not weigh the evidence or make credibility determinations. Walton, 64 Wn. App. at 415-16. These are matters for a jury. Id.

Affirmed.

A majority of the panel has determined 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.

WE CONCUR: Sweeney, C.J., Kulik, J.