State Of Washington v. Todd K. Walker ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 82059-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
TODD KYLE WALKER,
Appellant.
COBURN, J. — Todd Walker appeals his conviction for felony harassment.
He contends the trial court erred by not dismissing the charge based on
outrageous government conduct, the to-convict instruction omitted an essential
element of the charged crime, and the evidence was insufficient to support the
guilty verdict. We affirm.
BACKGROUND
Facts
The following facts are drawn from the trial court’s findings of fact entered
on Walker’s motion to dismiss. The trial court’s findings are unchallenged and,
thus, are verities on appeal. State v. Bowman, 14 Wn. App. 2d 562, 567, 472
P.3d 332 (2020).
On November 2, 2018, Elma Police Officer Josh Goffena responded to a
call in the City of Elma involving a suspect later identified as Walker. Walker was
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82059-1-I/2
highly intoxicated and had already been detained by other officers at the time of
initial contact by Goffena. Walker was subsequently arrested and placed in the
back of Goffena’s police vehicle. 1 The vehicle had a plastic back seat and a
Plexiglas and metal partition separating the driving area from the passenger
area.
While Goffena was transporting Walker to the Grays Harbor County Jail,
Walker banged his head multiple times against the Plexiglas and metal partition
separating the back seat from the front seat. Goffena verbally told Walker to stop
banging his head against the partition, to no avail. From his vantage point driving
the vehicle, Goffena could not tell the extent of the injuries suffered by Walker.
Goffena pulled to the side of Highway 12 to check on Walker.
As he came around the back of his patrol car to address Walker, Goffena
took hold of his oleoresin capsicum spray (pepper spray). When Goffena opened
the back door, providing access to Walker, Walker stuck his foot out facing
toward Goffena, as if to flee, kick, or block the door from closing.
Walker was bleeding heavily from his head and was not cooperative.
Goffena verbally ordered Walker to get back into the car. The verbal commands
were ineffective as Walker remained postured at the car door. He continued to
be verbally abusive and physically uncooperative. Given Walker’s behavior and
intoxicated state, Goffena had two options. He could do nothing, or he could
engage in some use of force. Higher levels of force included the use of a baton
to leverage, or using his own body to physically force compliance from Walker.
1 Walker was arrested for violating a no-contact order.
2
No. 82059-1-I/3
But these were not good options for Goffena due to the amount of blood and the
close quarters in the back of the patrol vehicle. Therefore, Goffena used the next
available level of force and sprayed pepper spray at Walker after giving him
several warnings that he was about to be sprayed.
Goffena’s decision to use pepper spray had the desired effect in that
Walker ceased beating his head against the partition and ceased causing further
injuries to himself. Goffena drove to the county jail faster than normal, using his
lights and sirens, and Walker was provided medical treatment to abate the
effects of pepper spray as soon as he arrived.
Procedure
The State subsequently charged Walker with felony harassment for
threats he made against Goffena on the way to the county jail. Specifically,
according to Goffena’s later testimony, on the way to the jail after he pepper
sprayed Walker, Goffena saw Walker in the rearview mirror “lift his head up and
look straight into [the] direction of the driver’s seat” and heard him say “five times,
not repetitively, not like super quick . . . , ‘I’m going to find you and I will kill you.’ ”
Before trial, Walker moved to dismiss the felony harassment charge,
arguing that Goffena’s use of pepper spray on Walker constituted outrageous
government conduct that was so shocking as to violate fundamental fairness. He
contended that Goffena’s use of pepper spray “did little to diffuse the situation”
and instead “stoked the fire to what later turned into the alleged harassment
threat.” He also argued that Goffena’s actions “amounted to . . . pouring salt into
an open wound which provoked [Walker]” and constituted excessive force that
3
No. 82059-1-I/4
“directly contributed to [Walker]’s change from argumentative to threatening.”
Thus, he argued, dismissal was warranted.
The trial court denied Walker’s motion, and a jury later found Walker guilty
as charged. Walker appeals.
DISCUSSION
Motion to Dismiss
Walker contends the trial court erred by denying his motion to dismiss.
We disagree.
“A trial court may dismiss the charges against a defendant when the State
is found to have engaged in outrageous misconduct in violation of a defendant’s
due process right to fundamental fairness.” State v. Solomon, 3 Wn. App. 2d
895, 897, 419 P.3d 436 (2018). “A due process claim based on outrageous
conduct requires more than a mere demonstration of flagrant police conduct.”
State v. Lively, 130 Wn.2d 1, 20, 921 P.2d 1035 (1996). Instead, the conduct
“must be so shocking that it violates fundamental fairness.” Id. at 19.
Additionally, “[p]ublic policy allows for some . . . violation of criminal laws by the
police in order to detect and eliminate criminal activity.” Id. at 20. Accordingly,
“[d]ismissal is appropriate only in the most egregious of cases, such as where . . .
government agents direct a crime from beginning to end or a crime is fabricated
for the sole purpose of obtaining a conviction and not to protect the public from
criminal behavior.” State v. Athan, 160 Wn.2d 354, 377, 158 P.3d 27 (2007).
“We review a trial court’s order on a motion to dismiss on the basis of
outrageous governmental misconduct ‘under an abuse of discretion standard.’ ”
4
No. 82059-1-I/5
Solomon, 3 Wn. App. 2d at 910 (quoting Athan, 160 Wn.2d at 375). “ ‘Abuse of
discretion requires the trial court’s decision to be manifestly unreasonable or
based on untenable grounds or untenable reasons.’ ” Id. (quoting Athan, 160
Wn.2d at 375-76).
The trial court did not abuse its discretion by denying Walker’s motion to
dismiss. Contrary to Walker’s suggestion that he “could not hurt anyone” given
he was handcuffed in the back seat of Goffena’s police vehicle, the trial court
made an unchallenged finding that Walker “was actively causing self-harm” by
banging his head and face against the partition in the vehicle. It was not
outrageous for Goffena to stop on the side of the road to check on Walker after
he “verbally told [Walker] to stop banging his head against the partition to no
avail.”
It also was not outrageous for Goffena to deploy pepper spray given that,
according to the trial court’s unchallenged findings: (1) when Goffena opened the
back door, Walker “stuck his foot out facing toward [Goffena], as if to flee, kick, or
block the door from closing,” (2) Goffena verbally ordered Walker to get back into
the car but the verbal commands were ineffective as Walker “remained postured
at the car door,” (3) Walker was “bleeding heavily from his head” and Goffena
was not wearing gloves to protect himself from any blood, (4) using a baton or
using his own body to physically force compliance from Walker were not good
options given the amount of blood and the close quarters in the back of Goffena’s
police vehicle, (5) the interaction took place on the side of a highway, and
(6) before using the pepper spray, Goffena gave Walker “several warnings that
5
No. 82059-1-I/6
he was about to be sprayed.” Under these circumstances, Goffena’s actions
were not so shocking as to violate fundamental fairness, and the trial court did
not err by denying Walker’s motion to dismiss.
Walker chiefly relies on Lively to contend that Goffena’s actions
constituted outrageous conduct warranting dismissal. But Lively is
distinguishable on its facts. There, the defendant, Amy Lively, was a recovering
addict who had been attending Alcoholics Anonymous/Narcotics Anonymous
(AA/NA) meetings. Lively, 130 Wn.2d at 6. She was charged with delivery of a
controlled substance after delivering cocaine to undercover officers in
transactions arranged by an informant who had attended the AA/NA meetings,
with the approval of detectives, “to identify repeat drug addicts continuing to sell
illegal drugs.” Id.In reversing Lively’s conviction based on outrageous government conduct,
our Supreme Court observed that “the informant’s attendance at AA/NA meetings
could best be described as ‘trolling for targets’ ” and the informant “did not
infiltrate an ongoing criminal activity, but established a relationship with [Lively]
for the purpose of instigating a crime.” Id. at 22-23. Additionally, the trial court
had found that Lively attended treatment in an effort to eliminate her drug
problem; the informant lived with Lively prior to the cocaine deliveries; Lively
never sought out anyone to sell drugs to and instead it was the informant who
made numerous requests that Lively purchase drugs; after the deliveries, the
informant asked Lively to marry him; and without apparent predisposition, Lively
was induced by the informant to commit the crime of delivery. Id. at 25. The
6
No. 82059-1-I/7
Supreme Court stated that “[t]hese findings clearly support the conclusion that
[Lively]’s reluctance to commit a crime was purposely overcome by the State. Id.The court also determined that the informant’s conduct was “so closely
related to [Lively’s] actions . . . that the informant controlled the criminal activity
from start to finish.” Id. at 26. Specifically, the informant developed a
relationship with Lively that resulted in her becoming emotionally reliant on him;
because of her emotional dependence, Lively agreed to deliver cocaine to the
informant’s “ ‘close friend’ ”; and Lively used the informant’s car to obtain cocaine
at times arranged by the informant. Id.Finally, the Lively court concluded that the government’s conduct
demonstrated “a greater interest in creating crimes to prosecute than in
protecting the public from further criminal behavior,” and given the public policy
preference for addiction treatment and the “life line” that programs like AA/NA
provide to citizens recovering from substance abuse, “[t]he courts of this State
cannot countenance the conduct which occurred in this case.” Id. at 26-27.
In the instant case, the record does not reflect anything near the level of
purposeful instigation by the State that was present in Lively. The trial court’s
findings do not support a conclusion that Goffena pepper sprayed Walker to
instigate threats from Walker; that Walker was reluctant to make threats—much
less that his reluctance was purposely overcome by Goffena’s actions; or that
Goffena effectively controlled Walker’s criminal activity from start to finish. And
although Walker attempts to analogize his case to Lively by arguing that he
“would not have reacted the way he did” if Goffena had not sprayed him with
7
No. 82059-1-I/8
pepper spray, we find his attempt unconvincing. Walker’s reliance on Lively is
misplaced. Cf. id. at 21 (“Each case must be resolved on its own unique set of
facts.”).
To-Convict Instruction
Walker argues that reversal is required because the to-convict instruction
omitted an essential element of the crime, i.e., that Walker had the present and
future ability to carry out his threat. We disagree.
Walker’s argument raises an issue of statutory interpretation, which we
review de novo. State v. Boyle, 183 Wn. App. 1, 10, 335 P.3d 954 (2014).
“When construing a statute, we primarily seek to ascertain and carry out the
legislature’s intent.” Id. at 10-11. “Statutory interpretation begins with the
statute’s plain meaning, which we discern from the ordinary meaning of its
language in the context of the whole statute, related statutory provisions, and the
statutory scheme as a whole.” Id. at 11. “If the statute’s meaning is
unambiguous, our inquiry ends [t]here.” Id.
RCW 9A.46.020 provides, in relevant part, “A person is guilty of
harassment if . . . [w]ithout lawful authority, the person knowingly threatens . . .
[t]o cause bodily injury immediately or in the future to the person threatened . . .
and . . . [t]he person by words or conduct places the person threatened in
reasonable fear that the threat will be carried out.” The crime of harassment is
ordinarily a gross misdemeanor; however, it is elevated to a felony if the
defendant “harasses a criminal justice participant who is performing his or her
official duties at the time the threat is made.” RCW 9A.46.020(2)(b)(iii). For
8
No. 82059-1-I/9
purposes of felony harassment of a criminal justice participant, the statute
specifies that “the fear from the threat must be a fear that a reasonable criminal
justice participant would have under all the circumstances,” and “[t]hreatening
words do not constitute harassment if it is apparent to the criminal justice
participant that the person does not have the present and future ability to carry
out the threat.” RCW 9A.46.020(2)(b).
Walker contends that this final sentence of RCW 9A.46.020(2)(b) means
that threatening words constitute harassment only if Walker had the present and
future ability to carry out his threat. We rejected this argument in Boyle, and we
do so again today.
As we explained in Boyle, the final sentence of section (2)(b) of the statute
is phrased as an exception; it is not an element. Boyle, 183 Wn. App. at 11.
Consistent with the statute’s requirements that the threat place the person
threatened “in reasonable fear that the threat will be carried out” and that the fear
“be a fear that a reasonable criminal justice participant would have under all the
circumstances,” RCW 9A.46.020(1)(b), (2)(b), the statute also specifies, as we
explained in Boyle, “that threatening words are not harassment if it is apparent to
the criminal justice participant that (1) the speaker does not have the present
ability to carry out the threat and (2) the speaker does not have the future ability
to carry out the threat.” 183 Wn. App. at 11.
Walker essentially asks us to take an exception and read it inversely to
suggest the legislature intended the mirror opposite to be the mandatory
minimum requirement. We decline to do so. Cf. Wash. Fed. v. Gentry, 179 Wn.
9No. 82059-1-I/10
App. 470, 483-84, 319 P.3d 823 (2014) (“We . . . decline to add the inverse to the
statute when the Legislature did not expressly do so. . . . [Such a reading] is
grounded in a logical fallacy. ‘The proposition that ‘A implies B’ is not the
equivalent of ‘non-A implies non-B,’ and neither proposition follows logically from
the other.’ ” (quoting Crouse-Hinds Co. v. InterNorth, Inc., 634 F.2d 690, 703
n.20 (2d Cir. 1980))). Instead, we conclude, as we did in Boyle, that the
interpretation Walker advances is inconsistent with the plain meaning of RCW
9A.46.020.
In short, the plain meaning of RCW 9A.46.020 does not, as Walker
asserts, require the State to prove that Walker had the present and future ability
to carry out his threats. The court’s to-convict instruction correctly stated the
law, 2 and thus, reversal is not required.
2 The court instructed the jury as follows:
To convict the Defendant of the crime of Felony Harassment,
each of the following elements of the crime must be proved beyond
a reasonable doubt:
(1) That on or about November 2, 2018, the Defendant
knowingly threatened to cause bodily injury immediately
or in the future to Josh Goffena;
(2) That Josh Goffena was a criminal justice participant who
was performing his official duties at the time the threat
was made;
(3) That the words or conduct of the Defendant placed Josh
Goffena in reasonable fear that the threat would be
carried out;
(4) That the fear from the threat was a fear that a reasonable
criminal justice participant would have under all the
circumstances;
(5) That the Defendant acted without lawful authority; and
(6) That this act occurred in the State of Washington.
10
No. 82059-1-I/11
Walker disagrees and argues that the rule of lenity requires us to construe
RCW 9A.46.020 in his favor. Under the rule of lenity, we strictly construe a
criminal statute in favor of the defendant when the statute is “susceptible to more
than one reasonable, but irreconcilable, interpretation.” State v. Oakley, 117 Wn.
App. 730, 734, 72 P.3d 1114 (2003). The rule of lenity does not apply here,
where, for reasons already discussed, Walker’s proffered interpretation of RCW
9A.46.020 is not reasonable. Therefore, Walker’s argument is unpersuasive.
Walker next contends that our decision in Boyle was misguided because it
relied on the “absurd results” canon of statutory construction, under which “we
‘will avoid [a] literal reading of a statute which would result in unlikely, absurd, or
strained consequences.’ ” Five Corners Family Farmers v. State, 173 Wn.2d
296, 311, 268 P.3d 892 (2011) (alteration in original) (quoting Fraternal Order of
Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148
Wn.2d 224, 239, 59 P.3d 655 (2002)). But in Boyle, we merely observed, after
explaining that the interpretation now being proffered by Walker was inconsistent
with the statute’s plain meaning, that the proffered interpretation would also
produce absurd results. See 183 Wn. App. at 11-12. Our analysis did not and
does not rest on the absurd results canon. Thus, Walker’s contention fails.
If you find from the evidence that each of these elements
has been proved beyond a reasonable doubt, then it will be your
duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you
have a reasonable doubt as to any one of these elements, then it
will be your duty to return a verdict of not guilty.
11
No. 82059-1-I/12
Sufficiency of the Evidence
Walker argues that the evidence was insufficient to support the jury’s
guilty verdict. We disagree.
To satisfy the Fourteenth Amendment’s due process guarantee, the State
“bears the burden of proving every element of every crime beyond a reasonable
doubt.” State v. Chacon, 192 Wn.2d 545, 549, 431 P.3d 477 (2018); U.S. CONST.
amend. XIV. When a defendant challenges the sufficiency of the evidence
presented to meet this burden, “he or she admits the truth of all of the State’s
evidence.” State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).
“In such cases, appellate courts view the evidence in the light most favorable to
the State, drawing reasonable inferences in the State’s favor.” Id. at 265-66.
“Evidence is sufficient to support a guilty verdict if any rational trier of fact,
viewing the evidence in the light most favorable to the State, could find the
elements of the charged crime beyond a reasonable doubt.” Id. at 265.
Here, Walker’s sufficiency argument relies entirely on his assertion that
the State was required to prove that Walker had the present and future ability to
carry out his threats against Goffena. But as discussed, the State was not
required to so prove. Furthermore, having reviewed the trial transcript, we
conclude that the evidence, viewed in the light most favorable to the State, was
sufficient to find the elements of felony harassment satisfied beyond a
12
No. 82059-1-I/13
reasonable doubt. We affirm.
WE CONCUR:
13