State Of Washington, V Kellen Markey Linnell ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
March 7, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48071-9-II
Respondent, UNPUBLISHED OPINION
v.
KELLEN M. LINNELL,
Appellant.
BJORGEN, C.J. — Kellen Linnell appeals his convictions for obstruction of a law
enforcement officer and bail jumping. He argues that there is insufficient evidence to support (1)
the obstruction offense’s elements of willfully hindering, delaying, or obstructing a law
enforcement officer and (2) the bail jumping conviction because the State failed to supply the
requisite corroborating evidence to establish his identity. We hold that the record supplies
sufficient evidence to support the two convictions. Accordingly, we affirm.
FACTS
On November 28, 2011, “Occupy Olympia” activists, including Linnell, met with
legislators at the legislative building in Olympia. As evening arrived, police officers encouraged
individuals to leave because the building was closing. Many protestors did not leave, which
escalated their interactions with police officers and ultimately led to some activists being
arrested.
No. 48071-9-II
As Theodore Dehart, a sergeant with the Washington State Patrol, was attempting to
escort activists out of the building, an individual bit Dehart’s arm. While Dehart was bent over
trying to restrain the individual, Linnell jumped onto Dehart’s back. Dehart was wearing a
tactical vest with the word “police” written on it. Report of Proceedings (RP) at 34.
Nearby, Kevin Arras, a lieutenant with the Washington State Patrol, observed Linnell
jump onto Dehart. Arras immediately came to Dehart’s aid and pulled Linnell off of Dehart.
Linnell began to yell and flail his arms. Arras “took him right to the ground, and ended up on his
back.” RP at 113. Arras repeatedly told Linnell to stop flailing, but the thrashing increased.
Linnell started pulling items off Arras’s weapons belt, including his phone. Arras again told him
to stop. Due to Linnell’s movements, Arras felt his gun on his gun belt start to move, prompting
him to perform a “carotid restraint” technique, also known as a choke hold, which made Linnell
“tap out” and submit to Arras. RP at 116-18. Zachary Elmore, a lieutenant with the Washington
State Patrol, observed Arras “holding” and “controlling” Linnell on the ground. RP at 133. At
Arras’s request, Elmore completed the arrest of Linnell.
Linnell appeared in Thurston County Superior Court the next day. The court entered a
conditions of release order under case number 11-1-018486 and set bail at $1,500. The order
bore Linnell’s signature. Linnell posted the $1,500 bail for charges of third degree assault and
obstructing a law enforcement officer. On December 13, 2011, Linnell was arraigned, and the
court entered an order setting dates for an omnibus hearing. The order also stated the following
in bolded text:
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No. 48071-9-II
The defendant is required to be present at all hearings scheduled in this matter
....
FAILURE TO APPEAR WILL RESULT IN A WARRANT BEING ISSUED
FOR YOUR ARREST.
Ex. 9. Linnell signed under the portion of the document stating, “Copy Received by.” Ex.
9.
On July 2, 2012, the court held an omnibus hearing and entered an agreed order of trial
continuance, setting a status hearing1 for November 7, 2012. On that order, the following text
appears:
THE DEFENDANT MUST APPEAR FOR TRIAL AND FOR ALL
SCHEDULED HEARINGS. FAILURE TO APPEAR MAY RESULT IN
ISSUANCE OF AN ARREST WARRANT, FORFEITURE OF BAIL, AND
CRIMINAL PROSECUTION FOR BAIL JUMPING.
Ex. 10-11. The order bore Linnell’s signature.
On November 7, 2012, the court entered an order finding that Linnell had not appeared
for his status hearing scheduled on that date. The court also ordered a bench warrant for his
arrest. About a year and a half later, on May 29, 2014, a deputy sheriff served the bench warrant
and arrested Linnell. He was charged by amended information with third degree assault,
obstructing a law enforcement officer, and bail jumping.
At trial, Dehart, Arras, and Elmore testified about the incident at the legislative building.
In addition, Arras identified Linnell in the courtroom as the individual he pulled off Dehart’s
1
A “status hearing” is for parties to determine whether they are ready to proceed to trial.
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No. 48071-9-II
back and restrained. Elmore identified Linnell in the courtroom as the person whom he arrested
for Arras. Dehart identified Linnell in the courtroom as a person whom Elmore arrested.
Through the Thurston County Clerk, the State admitted the certified orders and documents
discussed above, eliciting their contents to establish that Linnell had notice of, but ultimately
missed his November 7, 2012 status hearing.
The jury acquitted Linnell on third degree assault, but found him guilty of obstructing a
law enforcement officer and bail jumping. He appeals.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
1. Legal Principles
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the
State, it permits a reasonable juror to find the essential elements of the crime beyond a
reasonable doubt. State v. McPherson, 186 Wash. App. 114, 117, 344 P.3d 1283, review denied,
183 Wash. 2d 1012 (2015). A claim of insufficiency admits the truth of the State’s evidence and all
reasonable inferences that a juror can draw from that evidence. Id. at 117-18. All reasonable
inferences from the evidence must be drawn in favor of the State and interpreted strongly against
the defendant. State v. Miller, 179 Wash. App. 91, 104, 316 P.3d 1143 (2014). Circumstantial
evidence is no less reliable than direct evidence. Id. at 105. 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).
2. Obstruction of a Law Enforcement Officer
Linnell argues that there is insufficient evidence to support the elements of willfully
hindering, delaying, or obstructing a law enforcement officer. We disagree.
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No. 48071-9-II
“A person is guilty of obstructing a law enforcement officer if the person willfully
hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official
powers or duties.” RCW 9A.76.020. “‘Willfully means to purposefully act with knowledge that
this action will hinder, delay, or obstruct a law enforcement officer in the discharge of the
officer’s official duties.’” State v. Ware, 111 Wash. App. 738, 743, 46 P.3d 280 (2002) (quoting
11A WASH. PRACTICE: WASH. PATTERN JURY INSTRUCTIONS: CRIMINAL § 120.02.01 (2d Ed.
1994 & Supp. 1998). Jury instruction 11 defined “willfully” in exactly the same terms. CP at
116. “‘Hinder’ means ‘to make slow or difficult the course or progress of.’” State v. Steen, 164
Wash. App. 789, 798, 265 P.3d 901 (2011) (quoting WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1070 (2002)). “‘Delay’ means ‘to stop, detain, or hinder for a time . . . to cause to
be slower or to occur more slowly than normal.’” Id. (alteration in original) (quoting WEBSTER’S
at 595). “‘Obstruct’ means ‘to be or come in the way of: hinder from passing, action, or
operation.’” Id. (quoting WEBSTER’S at 1559).
In the present case, Linnell was charged with obstructing Arras in the discharge of his
duties, not Dehart. The record reflects that Linnell was attending an event where scuffles
between the police and activists occurred. During one of those incidents, Linnell jumped on the
back of Dehart while he was restraining an individual. Dehart was wearing a tactical vest with
“police” written on it. Arras pulled Linnell off Dehart’s back and took him to the ground.
Linnell flailed and thrashed, and Arras repeatedly told him to stop. Linnell’s resistance caused
Arras’s phone to fall out of his belt and his gun to loosen in its holster. It was not until Arras
employed a choke hold that Linnell submitted to his arrest. From these facts, a reasonable juror
could determine that Linnell purposefully acted with knowledge that his actions would hinder,
delay, or obstruct Arras, a law enforcement officer, in the discharge of his official duties.
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No. 48071-9-II
Linnell argues that because he was struck from behind, taken to the ground, and strangled
all within seconds, his flailing and resistance were consistent with him not purposefully acting
with knowledge to hinder Arras. However, we “defer to the trier of fact on issues of conflicting
testimony, credibility of witnesses, and the persuasiveness of the evidence.” Thomas, 150 Wash. 2d
at 874-75. A reasonable juror could have inferred that Linnell purposefully acted with
knowledge that he was obstructing Arras, a police officer, from (1) the numerous police officers
present during the Occupy Olympia demonstration; (2) Linnell jumping on Dehart, another
police officer, indicating that whoever pulled him off of Dehart’s back was likely also a police
officer; (3) Linnell delaying his arrest by continuing to thrash and flail despite Arras’s repeated
commands to stop; and (4) Linnell touching Arras’s gun belt by grabbing and resisting to the
point where the items fell out or came loose.
Accordingly, sufficient evidence supports each element of the obstruction offense.
3. Bail Jumping
Linnell argues that there is insufficient evidence to support the bail jumping conviction
because the State failed to supply sufficient corroborating evidence to establish his identity. We
disagree.
“Any person having been . . . admitted to bail with knowledge of the requirement of a
subsequent personal appearance before any court of this state, . . . and who fails to appear . . .as
required is guilty of bail jumping.” RCW 9A.76.170(1).
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No. 48071-9-II
Here, the trial court admitted a “Conditions of Release” order for a Kellen Linnell,
assigning him the case number 11-1-018486, setting bail at $1500.00, and bearing his signature.
It admitted a surety bond of $1,500 for a Kellen Linnell under the same case number and for
charges related to obstruction of a police officer and third degree assault. Ex. 6. It admitted an
order setting a date for his omnibus hearing under the same case number, which stated the failure
to appear at any hearing would result in his arrest. Ex. 8-9. It admitted an omnibus order under
the same case number that bore a Kellen Linnell’s signature and that stated he would appear for a
status hearing on November 7, 2012. Ex. 10-11. This order also contained a reminder that a
defendant may be charged with bail jumping if any hearing was missed. Ex. 11. Finally, the
State admitted an order under the same case number establishing that a Kellen Linnell missed the
status hearing on November 7, 2012. Ex. 13. These exhibits establish that a Kellen Linnel
assigned case number 11-1-018486 and charged with third degree assault and obstruction of a
police officer missed a status hearing.
Linnell argues that this evidence is insufficient because the State failed to provide
corroborating evidence that the Kellen Linnell in these orders and documents was the same
Kellen Linnell in the courtroom. In State v. Huber, 129 Wash. App. 499, 500-01, 504, 119 P.3d
388 (2005), we reversed Huber’s bail jumping conviction because the State admitted only
exhibits to establish that the Huber charged was the same Huber in the documents. We
observed:
It is axiomatic in criminal trials that the prosecution bears the burden of establishing
beyond a reasonable doubt the identity of the accused as the person who committed
the offense.
....
To sustain this burden when criminal liability depends on the accused’s being the
person to whom a document pertains . . . the State must do more than authenticate
and admit the document; it also must show beyond a reasonable doubt that the
person named therein is the same person on trial. Because in many instances men
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No. 48071-9-II
bear identical names, the State cannot do this by showing identity of names alone.
Rather, it must show, by evidence independent of the record, that the person named
therein is the defendant in the present action.
Id. at 501-02 (footnotes omitted) (quotation marks omitted). Following Huber, Linnell is correct
that the State’s exhibits alone do not supply sufficient evidence to uphold the bail jumping
conviction.
The State argues, however, that because his obstruction charge was tried with bail
jumping, and Dehart, Arras, and Elmore all identified Linnell in the courtroom as the person who
hindered Arras, there was sufficient corroborating evidence to establish that the Kellen Linnell in
the orders and documents was the same as the one in the courtroom. We agree.
In contrast to Huber, the State did more than admit exhibits to establish that an individual
named Kellen Linnell jumped bail. Rather, it provided evidence that officers observed an
individual named Kellen Linnell assaulting and obstructing a police officer on November 28 in
Olympia, and, that a Kellen Linnell who appeared in Thurston County Superior Court the very
next day and shortly thereafter posted bail for assault and obstruction charges. This evidence
supplies a locale and chronological link that the Kellen Linnell who was observed and arrested
on November 28 in Olympia was the same one who appeared in Thurston County Superior Court
the next day on the same charges. Thus, the officers’ identification of Linnell at trial in tandem
with the exhibits supply the requisite evidence to establish that the Kellen Linnell in the
courtroom was the same Kellen Linnell in the orders who had notice of a status hearing on
November 7, 2012, yet missed it.
The State supplied the requisite corroborating evidence that the Kellen Linnell in the
courtroom was the same as the one in the orders and documents who failed to appear. Thus,
sufficient evidence supports his conviction for bail jumping.
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No. 48071-9-II
CONCLUSION
The evidence is sufficient to uphold Linnell’s convictions, and 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.
BJORGEN, C.J.
We concur:
JOHANSON, J.
MELNICK, J.
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