No. 56229-1-I.The Court of Appeals of Washington, Division One.
May 8, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-01413-8, Sharon S. Armstrong, J., entered May 16, 2005.
Reversed by unpublished per curiam opinion.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Nielson Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Marcus Dew Wilson — Info only (Appearing Pro Se), # 205012786, Rjc-Detention Facility, 620 West James Street, Kent, WA 98032.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Karissa Lynne Taylor, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
PER CURIAM.
On appeal, Marcus Wilson contends the evidence was insufficient to support his conviction for intimidating a witness. After reviewing the record, we accept the State’s concession of error. But we agree with the State that the jury necessarily found all of the elements of witness tampering when entering its verdict. Accordingly, we vacate Wilson’s conviction for intimidating a witness and remand for entry of judgment and sentence on one count of witness tampering.
Wilson was charged with one count of intimidating a witness based on three telephone calls that he allegedly made to a long-time acquaintance. At trial, the victim testified Wilson had twice accosted her, each time threatening her with a gun. She reported both incidents to the police, who arrested Wilson. Shortly after Wilson was released from jail, he called the victim three times during a short period of time and warned her that she was `gonna pay for this’ and that her daughter would not have a mother if she `continue[d] with this’ or `went to court.’ In addition to instructing the jury on the intimidating a witness charge, the trial court also gave Wilson’s proposed instruction on the `lesser included’ offense of witness tampering. See RCW 9A.72.120. The jury found Wilson guilty as charged.
In order to convict Wilson of intimidating a witness, the State was required to prove that he used a `threat’ to induce a current or prospective witness not to report information relevant to a `criminal investigation’ or not to give truthful or complete information relevant to a `criminal investigation.’ See RCW 9A.72.110. The jury was further instructed that `threat’ means communication of the intent `immediately to use force against any person who is present at the time.’ (Emphasis added.) RCW 9A.72.110(3)(a)(i). On appeal, Wilson contends — and the State concedes — that even when viewed in the light most favorable to the State, the evidence does not support an inference that Wilson intended to use force immediately. Based on our review of the record, we accept the State’s concession and vacate Wilson’s conviction.
The State contends that this court should remand the case for entry of a judgment and sentence on witness tampering. Generally, when the evidence is insufficient to support a conviction on the charged offense, an appellate court may direct that the defendant be resentenced on a lesser included or lesser degree offense. See State v. DeRosia, 124 Wn. App. 138, 151, 100 P.3d 331 (2004). The critical consideration in making such a determination is `whether the jury necessarily found each element of the lesser included offense in reaching its verdict on the crime charged.’ State v. Gilbert, 68 Wn. App. 379, 385, 842 P.2d 1029 (1993).
Wilson contends this test is not met here because witness tampering, unlike intimidating a witness, required a specific finding that the defendant attempted to induce the victim to withhold information from a `law enforcement agency.’ See RCW 9A.72.120(1)(c). He argues that because the jury’s verdict on intimidating a witness did not necessarily include such a finding, this court should dismiss the prosecution.
The jury in this case was instructed, at the defendant’s request, on the elements of witness tampering. On appeal, Wilson does not challenge either the giving of this instruction or the sufficiency of the evidence to establish witness tampering. The sole evidence of a `criminal investigation’ before the jury involved the victim’s report of Wilson’s actions to the police and Wilson’s subsequent arrest based on those reports. In order to convict Wilson of intimidating a witness, the jury was required to find that he attempted to induce the victim to withhold information `relevant to a criminal investigation.’ But under the circumstances of this case, that finding necessarily included a determination that Wilson attempted to induce the victim to withhold information from a `law enforcement agency.’
Because the jury’s verdict necessarily encompassed each element of witness tampering, we vacate Wilson’s conviction for intimidating a witness and remand for entry of judgment and sentence on one count of witness tampering.
GROSSE, DWYER and BECKER, JJ.
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