State Of Washington, V Michael S. Scheef ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
January 12, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46351-2-II
Respondent,
v.
MICHAEL S. SCHEEF, UNPUBLISHED OPINION
Appellant.
MELNICK, J. – Michael S. Scheef appeals his convictions for reckless burning in the first
degree and making a false statement to a public servant. Scheef argues that the evidence was
insufficient to show that his false statement was material. He also argues that the trial court made
notations on the jury instructions that constituted impermissible comments on the evidence. We
hold that the evidence was sufficient to show that Scheef’s false statement was material because it
was reasonably likely to be relied upon by law enforcement. We reject Scheef’s allegation that
the trial court commented on the evidence because the record does not support this allegation. We
affirm his convictions.
FACTS
On September 30, 2013, there was a fire in a residence and a motor home on property just
outside the Montesano city limits. Scheef’s father owned the property, and Scheef lived in the
residence. Grays Harbor Deputy Sheriff Jason Wecker responded and concluded that the fires
were separate because nothing was burning between the residence and the motor home.
Scheef was not at the scene, but Wecker discovered that Scheef had stopped by a friend’s
house on the day of the fire. After contacting Scheef by phone, Wecker arranged to meet him at
46351-2-II
the residence on October 3. A fire investigator for the insurance company, an adjustor, Scheef’s
father, and retired Deputy Steve Smith were also on the property.
Scheef told the deputies that he had been abducted by three men, taken to Shelton, and
dropped off. He said that the men ran him out of town because of his marijuana business and that
he returned on October 2 after a two-day walk back. He denied stopping at his friend’s house on
the day of the fire and said he was never there because he was abducted. After further discussion,
Wecker told Scheef that his story did not add up and that he knew Scheef had not been abducted.
Scheef then admitted that after accidentally setting the house on fire, he set the motor home on fire
because he wanted it to look like he had been run out of town.
The State charged Scheef by amended information with arson in the second degree,
reckless burning in the first degree, and making a false or misleading statement to a public servant.
The law enforcement officers testified to the facts cited above, and Scheef and his father testified
for the defense. The jury acquitted Scheef of arson but found him guilty of the remaining charges.
The trial court imposed consecutive sentences of 90 days on the reckless burning charge and 364
days on the false statement charge, with all but 6 months of the latter sentence suspended. Scheef
appeals his convictions.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE: MAKING A FALSE STATEMENT
Scheef argues that the evidence was insufficient to prove that his false statement about his
abduction was material. We disagree.
“The State must prove every essential element of a crime beyond a reasonable doubt for a
conviction to be upheld.” State v. Byrd, 125 Wash. 2d 707, 713, 887 P.2d 396 (1995). To determine
whether sufficient evidence supports a conviction, we view the evidence in the light most favorable
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to the State and determine whether any rational trier of fact could have found the elements of the
crime beyond a reasonable doubt. State v. Homan, 181 Wash. 2d 102, 105, 330 P.3d 182 (2014). A
claim of insufficient evidence admits the truth of the State’s evidence and all reasonable inferences
that can be drawn therefrom. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wash. 2d 634, 638,
618 P.2d 99 (1980). 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 Wash. 2d 821, 874-75, 83
P.3d 970 (2004).
RCW 9A.76.175 proscribes “knowingly mak[ing] a false or misleading material statement
to a public servant.” A material statement is “a written or oral statement reasonably likely to be
relied upon by a public servant in the discharge of his or her official powers or duties.” RCW
9A.76.175; see Clerk’s Papers (CP) at 47 (Instr. 17). To prove that a false statement is material,
the person making the statement must know that the public servant is reasonably likely to rely on
the statement. State v. Godsey, 131 Wash. App. 278, 291, 127 P.3d 11 (2006); 11A WASHINGTON
PRACTICE: WASHINGTON PATTERN JURY INSTRUCTION: CRIMINAL 120.04.01, cmt. at 475 (3d ed.
2008) (WPIC).
Scheef argues that the evidence does not show that Wecker relied on the abduction story,
but RCW 9A.76.175 does not require actual reliance. Godsey, 131 Wash. App. at 291. In Godsey,
the evidence was sufficient to show that the defendant’s denial of his true identity was material
even where the arresting officers knew that he was Ray Godsey. 131 Wash. App. at 291. The
Godsey court held that despite that knowledge, the jury could reasonably infer that the defendant
knew it was “reasonably likely” that the officers would rely on his false information to confirm his
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identity. 131 Wash. App. at 291. Consequently, the evidence was sufficient for the jury to
reasonably infer that the statement was material. Godsey, 131 Wash. App. at 291
When viewed in the light most favorable to the State, the evidence shows that Scheef’s
story about his abduction was material to the investigation of the fire. The fact that Wecker
eventually challenged Scheef’s story does not disallow the reasonable inference that Scheef knew
it was reasonably likely that the deputies would rely on his false statement. We conclude that the
evidence was sufficient to prove that Scheef’s false statement was material, and we affirm his
conviction for making a false statement to a public servant.
II. COMMENT ON THE EVIDENCE
Scheef also argues that the trial court commented on the evidence by making handwritten
notations on two jury instructions. The Washington Constitution explicitly prohibits judicial
comments on the evidence. WASH. CONST. art. IV, § 16; State v. Levy, 156 Wash. 2d 709, 721, 132
P.3d 1076 (2006).
The record shows that the word “maliciously” is circled on the “to convict” instruction for
arson in the second degree, which required a finding that Scheef acted knowingly and maliciously
in causing a fire. CP at 43 (Instr. 7). The record also shows that the word “Guilty” is handwritten
in the margin of the “to convict” instruction for reckless burning in the first degree. CP at 44 (Instr.
8).
The record does not show who made these handwritten notations or otherwise refer to them.
It is Scheef’s burden on appeal to furnish us with a statement of facts sufficient to support his
assignment of error. State v. Holbrook, 66 Wash. 2d 278, 280, 401 P.2d 971 (1965). Because
Scheef’s allegation that the trial court made these notations is based on speculation rather than
fact, we decline to consider it further. See State v. Blight, 89 Wash. 2d 38, 46, 569 P.2d 1129 (1977)
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(reviewing court may not speculate about existence of facts if they are not in the record). If Scheef
has evidence outside the record to support his claim, he may submit it with a personal restraint
petition. State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Bjorgen, A.C.J.
Sutton, J.
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