State of Washington v. Amanda Marie Torres

FILED
MAY 9, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33933-5-111
Respondent, )
)
v. )
)
AMANDA MARIE TORRES, ) PUBLISHED OPINION
)
Appellant. )
FEARING, C.J. -Are special glass locomotive windows, whose composition must
meet federal railroad regulations, locomotive "operating mechanisms?" We ask this
question in the context of RCW 81.60.080, a fallow statute that criminalizes sabotaging
rolling stock. After declining to entertain Amanda Torres' Fourth Amendment challenge
to her arrest and confession, we hold that locomotive windows are not operating
mechanisms and reverse her conviction for sabotaging rolling stock. We remand for a
new trial on this one charge since Torres also damaged air brakes in addition to windows.
We affirm other convictions for burglary and malicious mischief.
FACTS
This appeal arises from the prosecution of Amanda Torres for entry into a fenced
railroad yard and vandalism to a locomotive inside the yard. This statement of facts
No. 33933-5-III
State v. Torres
comes from the trial and a CrR 3.5 confession hearing. We start with some trial
testimony.
Between runs, the Yakima Central Railroad parks locomotives inside a locked
fence at its Wapato yard. On July 7, 2014, railroad employee Jake Shreves discovered a
ransacked locomotive at the Wapato railroad yard. Shreves found the fence bent to allow
access for an intruder, garbage strewn about the locomotive, four or five broken
windows, and a discharged fire extinguisher. Further investigation revealed shattered
glass tops of air gauges.
The Yakima Central locomotive windows housed strong ballistic bullet proof,
optically transparent glass that must meet federal regulations. The locomotive air gauges
displayed the amount of air applied to engine brakes and measured the air in reserve
tanks. Destroyed air gauges render a train unsafe by restricting the operator from
determining if the brake system contains sufficient air for braking purposes. The law
prohibits the operation of a train that lacks functioning air gauges. At trial, Yakima
Central employee Jack Shreves identified the air gauge as part of the operating
mechanism of the locomotive. Nevertheless, the gauge may work if the only damage is
harm to the glass top. At trial, Shreves recalled no damage to the gauge needles. No
witness identified the locomotive windows as operating mechanisms.
After discovering vandalism at the Yakima Central Railroad yard, Jake Shreves
contacted law enforcement. Yakima County Deputy Sheriff Sergio Reyna responded to
2
No. 33933-5-III
State v. Torres
the scene on July 7 at 8:00 a.m. Reyna reviewed and photographed the damage and
unsuccessfully combed for latent fingerprints. With Deputy Reyna present, Shreves
retrieved from the ground an identification card belonging to appellant Amanda Torres.
Shreves handed the card to Deputy Reyna, who drove to the address listed on the card.
An important question on appeal is whether a confession purportedly spoken by
Amanda Torres to Sheriff Deputy Sergio Reyna should be suppressed. The remainder of
the statement of facts comes from a confession suppression hearing.
At 8:30 a.m., on July 7, Sheriff Deputy Sergio Reyna arrived at the Wapato
address on Amanda Torres' identification card. Torres' aunt owned the house. Deputy
Reyna knocked on the residence front door, a young female answered the knock, Reyna
asked the young lady ifhe could speak to Amanda Torres, and the young female escorted
Reyna to a downstairs bedroom. The identity of the young female and her relationship to
the house looms important in resolving the legality of Deputy Reyna's entry inside the
residence and seizure of Amanda Torres. During the suppression hearing, Torres
identified the female as Isabel Batista, Torres' aunt's daughter-in-law. Torres averred
that Batista was age 13 or 14 on July 7, 2014.
The State presented no testimony to identify the young female who allowed
Sheriff Deputy Sergio Reyna entrance to the Wapato home. Sergio Reyna did not know
the age of the woman, although he recognized her as being "younger." Report of
Proceedings (RP) at 17. Reyna described the youngish woman as being 5'3" or 5'4" in
3
No. 33933-5-III
State v. Torres
height.
A curtain, rather than a door, separated the downstairs bedroom from the
remainder of the basement, so Deputy Sergio Reyna knocked on a wooden stud and
asked to speak to Amanda Torres. A male and female lay on a bed. Torres identified
herself and rose from the bed. Amanda Torres and Sergio Reyna's testimony differs as to
events thereafter.
According to Amanda Torres, she awoke to Deputy Reyna's knocking and his
telling her that he was a sheriff and was looking for Amanda Torres. Torres stumbled out
of bed without shoes. She wore basketball shorts and a tank top, an outfit in which she
slept.
According to Amanda Torres, Deputy Sergio Reyna took her arm and told her to
follow him. Reyna did not allow Torres to completely dress. Torres immediately
deemed herself under arrest since Reyna gave her no choice but to obey him. Reyna
neither told Torres that she was under arrest or not under arrest. Reyna concedes he
possibly grabbed Torres' elbow and escorted her upstairs.
According to Amanda Torres, when the two reached upstairs, Deputy Sergio
Reyna asked Torres if the identification card in his possession was Torres' card. Torres
responded in the affirmative. Reyna next asked where Torres lost the card. Torres did
not respond because of the distraction of Torres' aunt returning home. The aunt asked
the reason for Deputy Reyna being inside the home, inquired about who permitted
4
No. 33933-5-III
State v. Torres
Reyna's entrance, and questioned whether the deputy held a warrant. In response, Reyna
escorted an unshod Torres outside.
According to Sheriff Deputy Sergio Reyna, he sat Amanda Torres in the back of
his patrol car. He then delivered Miranda warnings to Torres and questioned her about
damage to the locomotive. Reyna remained outside the car and spoke to Torres with the
car door open.
According to Sergio Reyna, after he read the Miranda warnings, Amanda Torres
admitted to being present at the railroad yard with friends and conceded that she and her
friends had imbibed strong drink. Torres refused to be a snitch on her friends. Torres did
not expressly admit to damaging the locomotive, but volunteered to take responsibility
for the damage. Torres never cried and never asked for assistance ofa lawyer. Reyna's
patrol car contained a voice recorder, but Reyna chose not to record the conversation.
During the conversation, Amanda Torres' boyfriend walked toward the car with Torres'
shoes in hand. Reyna closed the car door to prevent the boyfriend access to Torres.
According to Amanda Torres, Deputy Sergio Reyna questioned her for ten
minutes as she sat in the patrol car. Reyna stood outside the car, and the two spoke with
the door closed and locked, but the window halfway down. Reyna never read Torres the
Miranda warnings. The deputy spoke to her as if she was guilty.
According to Amanda Torres, Sergio Reyna claimed a videotape showed Torres
damaging the locomotive and asserted that he gathered Torres' fingerprints at the scene.
5
No. 33933-5-III
State v. Torres
Reyna also declared that Torres' identification card lay inside the locomotive. Reyna
asked Torres why she wreaked the damage. Torres responded that she knew not about
any damage to a train. Torres cried and asked for a lawyer. She never confessed to
drinking alcohol or volunteered responsibility for damage to the locomotive. She never
uttered that she wished not to be a snitch.
PROCEDURE
The State of Washington charged Amanda Torres with sabotage of rolling stock,
second degree malicious mischief, and second degree burglary. The trial court conducted
a CrR 3.5 hearing to determine whether to suppress Amanda Torres' purported
inculpatory statements to Yakima Sheriff Deputy Sergio Reyna. During the hearing,
Deputy Reyna and Amanda Torres testified.
After the testimony at the CrR 3.5 hearing, Amanda Torres argued that she
received no Miranda warnings before speaking to Sheriff Deputy Sergio Reyna in the
patrol car. Torres did not assert any violation of her Fourth Amendment rights. After the
hearing, the trial court adjudged Amanda Torres' statements admissible. The court found
Deputy Reyna more credible than Amanda Torres, Reyna provided Miranda warnings,
and Torres spoke voluntarily to Reyna. Our record lacks any written findings of fact
resulting from the CrR 3.5 hearing.
During trial, Amanda Torres testified that, as she lay in bed incompletely asleep,
Sheriff Deputy Sergio Reyna grasped her arm and ushered her to the deputy's patrol car.
6
No. 33933-5-III
State v. Torres
Torres did not know where Reyna found her identification card. Torres denied damaging
the train. She repudiated telling Reyna that she vandalized the train and that she drank
with friends at the rail yard.
Amanda Torres requested a jury instruction defining the term "operating
mechanism" as used in RCW 81.60.080, a term found in the crime of sabotaging rolling
stock. Torres wished to argue that windows do not constitute an "operating mechanism."
The trial court responded:
I think that the term operating mechanism is testimony as to the
gages [sic] being operating mechanism. There's also testimony that the
windows are in a-a necessary part of the locomotive and-and I think you
are right, I don't think the jury's going to decide this case on the basis of
whether the windows are an operating mechanism or not. But-all right,
do you have other exceptions?
RP at 214-15. The court instructed the jury:
A person commits the crime of Sabotaging Rolling Stock when he or
she willfully or maliciously, with intent to injure the owner thereof, in any
manner interferes with any part of the operating mechanism of any
locomotive used or capable of being used by any railroad or railway
company in this state.
Clerk's Papers (CP) at 14.
During closing argument, the State mentioned that someone destroyed the gauges
as well as the "special windows." RP at 232-33. Later in the State's argument, the
parties and court interchanged:
7
No. 33933-5-111
State v. Torres
[State]: In any manner interfere with any part of the operating
mechanism. You heard testimony from Mr. Shreves and Mr. Didelius that
the glass of the window are special glass or window. These are glass and
windows that you cannot just go to a Home Depot or a Lowe's to find a
replacement.
[Torres' Attorney]: I'm sorry, I thought the Court ruled that
operating mechanism meant something different from what Counsel's
talking about.
THE COURT: Oh, I didn't rule.
[Torres' Attorney]: Okay. I'm sorry, I misunderstood. Thank you.
RP at 234-35.
Defense counsel, in his closing argument, reasoned that windows were not an
operating mechanism. In rebuttal argument, the prosecutor stressed that the windows
were an operating mechanism.
The jury found Amanda Torres guilty on all three counts: sabotaging rolling stock,
second degree malicious mischief, and second degree burglary. The trial court sentenced
her to 13 days' incarceration for each count, running concurrently. Torres' sentence also
required, as a condition of community custody, that she:
Report no later than the next business day after sentencing or release
from jail to a Washington State approved alcohol/drug assessment facility
for evaluation. Cooperate fully with the facility and immediately enter into
and complete any recommended treat program by the end of supervision.
. . . If a treatment program is not recommended, promptly complete
Alcohol/Drug Information School.
CP at 46. The judgment and sentence imposed $15,471.22 in legal financial obligations,
including $14,671.22 in restitution. The amount of restitution, however, is crossed out
8
No. 33933-5-111
State v. Torres
with an accompanying handwritten message: "To be set at restitution hearing." CP at 46.
At the later hearing, the court ordered Amanda Torres to pay $9,943.01 in restitution.
LAW AND ANALYSIS
Issue 1: Whether Amanda Torres' inculpatory comments to Deputy Sergio Reyna
should have been suppressed because Reyna violated Torres' constitutional right to
privacy by entering the house without a warrant and seizing her?
Answer 1: We refuse to address this question because Torres did not assert Fourth
Amendment rights before the trial court an.d any error is not manifest constitutional error
because we lack a sufficient factual record to address the merits of Torres' argument.
Amanda Torres contends Yakima County Sheriff Deputy Sergio Reyna's
warrantless entry into her home violated her rights under the Fourth Amendment to the
United States Constitution and article I, section 7 of the Washington Constitution. She
argues that under the common authority doctrine the young female's consent did not
legitimize Deputy Reyna's warrantless entry into Torres' home. Torres also argues that
the deputy violated her constitutional right against warrantless seizure when he physically
escorted her from her home and placed her in his patrol car for interrogation. Although
trial counsel did not raise unlawful entry and seizure as a basis for excluding Torres'
statements, she argues the error is reviewable as manifest constitutional error or proves
ineffective assistance of her counsel. Ifwe agreed with Amanda Torres, we would
suppress all evidence gathered after the arrest.
9
No. 33933-5-111
State v. Torres
The State justifies Sheriff Deputy Sergio Reyna's warrantless entry into the
residence on the invitation and consent of the young female. The State also denies that
Deputy Reyna seized Amanda Torres when touching her elbow and escorting her from
her bedroom to his patrol car. The State further asks that we refuse to entertain the
Fourth Amendment argument because of Torres' failure to assert the argument before the
trial court.
As Amanda Torres admits in her brief, she did not raise a Fourth Amendment
challenge below. The trial court held a CrR 3.5 hearing to determine whether to suppress
Torres' statements to Sheriff Deputy Sergio Reyna. Her closing statement at the hearing
focused on whether Reyna read Torres her Miranda rights, not the constitutionality of the
entry into the home and the detainment of Torres.
A party may not generally raise a new argument on appeal that the party did not
present to the trial court. RAP 2.5; In re Det. ofAmbers, 160 Wash. 2d 543, 557 n.6, 158
P.3d 1144 (2007). A party must inform the court of the rules oflaw it wishes the court to
apply and afford the trial court an opportunity to correct any error. Smith v. Shannon,
100 Wash. 2d 26, 3 7, 666 P .2d 3 51 (1983 ). We may decline to consider an issue
inadequately argued below. International Association of Fire Fighters, Local 46 v. City
of Everett, 146 Wash. 2d 29, 36-37, 42 P.3d 1265 (2002).
RAP 2.5(a) formalizes a fundamental principle of appellate review. The first
sentence of the rule reads:
10
No. 33933-5-III
State v. Torres
(a) Errors Raised for First Time on Review. The appellate court
may refuse to review any claim of error which was not raised in the trial
court.
No procedural principle is more familiar than that a constitutional right, or a right of any
other sort, may be forfeited in criminal cases by the failure to make timely assertion of
the right before a tribunal having jurisdiction to determine it. United States v. Olano, 507
U.S. 725,731,113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakusv. United States, 321
U.S. 414,444, 64 S. Ct. 660, 88 L. Ed. 834 (1944).
Sound reasoning lies behind the requirement that arguments be first asserted at
trial. The prerequisite affords the trial court an opportunity to rule correctly on a matter
before it can be presented on appeal. State v. Strine, 176 Wash. 2d 742, 749, 293 P.3d 1177
(2013). There is great potential for abuse when a party does not raise an issue below
because a party so situated could simply lie back, not allowing the trial court to avoid the
potential prejudice, gamble on the verdict, and then seek a new trial on appeal. State v.
Weber, 159 Wash. 2d 252, 271-72, 149 P.3d 646 (2006); State v. Emery, 174 Wash. 2d 741,
762,278 P.3d 653 (2012). The theory of preservation by timely objection also addresses
several other concerns. The rule serves the goal of judicial economy by enabling trial
courts to correct mistakes and thereby obviate the needless expense of appellate review
and further trials, facilitates appellate review by ensuring that a complete record of the
issues will be available, and prevents adversarial unfairness by ensuring that the
prevailing party is not deprived of victory by claimed errors that he had no opportunity to
11
No. 33933-5-111
State v. Torres
address. State v. Strine, 176 Wash. 2d at 749-50 (2013); see State v. Scott, 110 Wash. 2d 682,
688, 757 P.2d 492 (1988).
Countervailing policies support allowing an argument to be raised for the first time
on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)(3)
allows an appellant to raise for the first time "manifest error affecting a constitutional
right," an exception on which a criminal appellant commonly relies. Constitutional errors
are treated specially under RAP 2.5(a) because they often result in serious injustice to the
accused and may adversely affect public perceptions of the fairness and integrity of
judicial proceedings. State v. Scott, 110 Wash. 2d at 686-87. Prohibiting all constitutional
errors from being raised for the first time on appeal would result in unjust imprisonment.
2A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 2.5 at 218 (8th
ed. 2014).
Amanda Torres' warrantless entry and warrantless seizure issues implicate
constitutional rights. We must, therefore, determine whether her arguments address a
manifest error.
Washington courts and even decisions internally have announced differing
formulations for "manifest error." First, a manifest error is one "truly of constitutional
magnitude." State v. Scott, 110 Wash. 2d at 688 (1988). Second, perhaps perverting the
term "manifest," some decisions emphasize prejudice, not obviousness. The defendant
must identify a constitutional error and show how, in the context of the trial, the alleged
12
No. 33933-5-III
State v. Torres
error actually affected the defendant's rights. It is this showing of actual prejudice that
makes the error "manifest," allowing appellate review. State v. 0 'Hara, 167 Wash. 2d 91,
99, 217 P.3d 756 (2009); State v. Scott, 110 Wash. 2d at 688; State v. Lynn, 67 Wn. App.
339,346, 835 P.2d 251 (1992). A third and important formulation for purposes of this
appeal is the facts necessary to adjudicate the claimed error must be in the record on
appeal. State v. McFarland, 127 Wn.2d 322,333,899 P.2d 1251 (1995); State v. Riley,
121 Wash. 2d 22, 31,846 P.2d 1365 (1993). Ifthe facts necessary to adjudicate the claimed
error are not in the record on appeal, no actual prejudice is shown and the error is not
manifest. State v. Riley, 121 Wash. 2d at 31.
Our record lacks key facts for determining the constitutionality of Deputy Sergio
Reyna's entrance into the Wapato residence. Also, Amanda Torres' version of events
sometimes diverges from Reyna's account of events and no trier of fact has resolved this
inconsistency in stories. The trial court entered no findings of fact relevant to the
question of whether Deputy Reyna violated Torres' Fourth Amendment privileges.
Critical unresolved facts include the identity of the young lady answering the knock on
the front door, the youngish woman's role in the home, Amanda Torres' standing in the
residence, whether Torres and the young lady held equal rights to control the premises or
whether the other girl possessed subordinate rights, the words spoken by Sergio Reyna to
Amanda Torres before escorting Torres from her bedroom, the manner and extent to
which Reyna touched the body of Torres, the degree of force asserted by Reyna in his
13
No. 33933-5-III
State v. Torres
interaction with Torres, and whether a reasonable person would consider herself free to
disobey Reyna's instructions to follow him.
Resolution of some of the factual questions posed looms important under the
pertinent law. In search and seizure cases involving cohabitants, courts apply the
common authority rule. State v. Morse, 156 Wash. 2d 1, 7, 123 P.3d 832 (2005). This rule
provides the consent of one who possesses common authority over premises or effects is
valid as against the absent, nonconsenting person with whom that authority is shared.
United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974);
State v. Leach, 113 Wash. 2d 735, 738-39, 782 P.2d 1035 (1989). One with equal or lesser
control over premises does not have authority to consent for those who are present and
have equal or greater control. State v. Morse, 156 Wash. 2d at 4-5. A temporary guest does
not have authority to consent to a search of private areas of a host's home while the host
is present. State v. Morse, 156 Wash. 2d at 8.
Whether a law enforcement officer seized a person under the Fourth Amendment
is a mixed question of law and fact. State v. Armenta, 134 Wash. 2d 1, 9,948 P.2d 1280
(1997). What the police said and did and what the defendant said and did are questions
of fact. State v. Howerton, 187 Wn. App. 357,364,348 P.3d 781, review denied, 184
Wash. 2d 1011, 360 P.3d 818 (2015). A warrantless seizure is presumed unconstitutional
under the Fourth Amendment. State v. Acrey, 148 Wash. 2d 738, 746, 64 P.3d 594 (2003).
A seizure occurs when, in view of all the circumstances surrounding the incident, a
14
No. 33933-5-111
State v. Torres
reasonable person would have believed that he was not free to leave. State v. Young, 135
Wash. 2d 498, 510, 957 P .2d 681 (1998).
We note that the broad authority granted under RAP 12.2 and case law allows this
court to remand to the trial court for an evidentiary hearing and factual findings if
necessary to resolve an issue on appeal. State v. Brown, 30 Wn. App. 344,633 P.2d 1351
(1981), overruled on other grounds by State v. Commodore, 38 Wn. App. 244,684 P.2d
1364 (1984); State v. Mitchell, 2 Wn. App. 943,472 P.2d 629 (1970), overruled on other
grounds in State v. Braithwaite, 92 Wn.2d 624,600 P.2d 1260 (1979), which in tum was
overruled by State v. Hennings, 100 Wash. 2d 379, 670 P.2d 256 (1983). Nevertheless, the
State in Brown or Mitchell did not question the presence of manifest constitutional error
because of a failure to assert a contention before the respective trial courts. We do not
consider ourselves free to remand for an additional hearing on an issue not argued below
when the defendant fails to show manifest constitutional error because of an insufficient
record. Amanda Torres' filing of a personal restraint petition would better serve
adjudication of her Fourth Amendment rights.
Amanda Torres also argues that her trial counsel was ineffective for failure to seek
suppression of any confession on Fourth Amendment grounds. A claim of ineffective
assistance of counsel requires a showing that ( 1) counsel's performance was deficient,
and (2) the deficient performance prejudiced the defendant. State v. Thomas, 109 Wash. 2d
222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's
15
No. 33933-5-III
State v. Torres
performance falls below an objective standard of reasonableness. State v. Stenson, 132
Wn.2d 668,705,940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S. Ct. 1193, 140
L. Ed. 2d 323 (1998). This court presumes that counsel was effective. Strickland v.
Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
McFarland, 127 Wash. 2d at 335.
We decline to address whether Amanda Torres' trial counsel violated the standard
of care because we can decide the appeal based on the failure to show prejudice. If one
prong of the test fails, we need not address the remaining prong. State v. Hendrickson,
129 Wash. 2d 61, 78, 917 P.2d 563 (1996). Prejudice occurs when, but for the deficient
performance, the outcome would have differed. In re Pers. Restraint ofPirtle, 136
Wn.2d 467,487,965 P.2d 593 (1998); McFarland, 127 Wash. 2d at 337. In order to
establish actual prejudice, Torres must show that the trial court likely would have granted
a motion to suppress her confession based on an unlawful entry into the home and seizure
of her person. State v. Hamilton, 179 Wash. App. 870, 882, 320 P.3d 142 (2014). As
analyzed previously, we lack sufficient facts to determine whether the trial court would
have granted a motion to suppress.
Issue 2: Did the trial court err in refusing to instruct the jury that windows were
not part of the operating mechanism of the locomotive?
Answer 2: Yes.
16
No. 33933-5-III
State v. Torres
Amanda Torres contends that the trial court erred in denying her request for a
clarifying instruction that locomotive windows do not qualify as part of the operating
mechanism of a locomotive under RCW 81.60.080(1). She also argues that the
prosecutor committed misconduct by misleading the jury to believe windows constitute
operating mechanisms. The State responds that the trial court committed no error
because the trial court provided sufficient instructions. According to the State, windows
qualify as an operating mechanism since the train cannot legally operate without the
window mechanisms. Amanda Torres' assignment of error concerns only one of her
three convictions, sabotaging rolling stock.
Amanda Torres' assignment of error raises a legal question of statutory
construction. We must decide as a matter oflaw whether a jury may convict one for
sabotaging rolling stock if one shatters locomotive windows.
RCW 81.60.080(1) criminalizes sabotaging rolling stock. The statute declares:
Any person or persons who shall willfully or maliciously, with intent
to injure or deprive the owner thereof, take, steal, remove, change, add to,
alter, or in any manner interfere with any journal bearing, brass, waste,
packing, triple valve, pressure cock, brake, air hose, or any other part of the
operating mechanism of any locomotive, engine, tender, coach, car,
caboose, or motor car used or capable of being used by any railroad or
railway company in this state, is guilty of a class C felony, and upon
conviction thereof shall be punished by imprisonment in a state correctional
facility for not more than five years, or by a fine not exceeding one
thousand dollars, or by both such fine and imprisonment.
17
No. 33933-5-III
State v. Torres
(Emphasis added.) We must decide whether ballistic windows fall within the category of
"operating mechanisms" within the meaning of the statute. This court faces a novel issue
involving an obscure criminal statute never before cited in a court opinion. We
compliment the State for unearthing the archaeological find catalogued in a title other
than Titles 9 or 9A RCW. We cannot find guidance in foreign law because no other state
criminalizes "sabotaging rolling stock." No criminal case discusses the definition of a
train's or locomotive's "operating mechanism." So we go boldly forward where no man
or woman has gone before.
Amanda Torres wishes this court to interpret "operating mechanism" to mean
locomotive parts that make the train move, or, with braking features, slow down and stop.
The State interprets "operating mechanism" to mean any portion of a train that, when
damaged, prevents the owner from operating the train in compliance with federal
regulations. After dissecting and magnifying RCW 81.60.080(1 ), we agree with Amanda
Torres that windows, as a matter of law, are not operating mechanisms. Therefore, the
trial court should have instructed the jury that the jury could not consider windows as
operating mechanisms. We doubt that a prosecutor engages in misconduct when he or
she argues an interpretation of a statute consistent with a trial court ruling. Nevertheless,
because we vacate the conviction on inadequate jury instructions, we do not address
whether the prosecution engaged in misconduct when arguing that windows are operating
mechanisms.
18
No. 33933-5-III
State v. Torres
The court's duty in statutory interpretation is to discern and implement the
legislature's intent. Lowy v. PeaceHealth, 174 Wash. 2d 769, 779, 280 P.3d 1078 (2012).
In so doing, we rely on many tested, commonsensical, and intelligent principles to divine
the meaning of the statute, principles employed when interpreting other important and
even sacred texts. We rely on legislative history, a lay dictionary, a technical railroad
.dictionary, other words in the statute, and the whole of the statute.
The Washington Legislature adopted RCW 81.60.080 in 1941. S.B. 201, 27th
Leg., Reg. Sess. (Wash. 1941 ). The proposed bill initially read: "Any person or persons
who shall willfully or maliciously, with intent to injure or deprive the owner thereof,
take, steal, remove, change, add to, alter, or in any manner interfere with any journal
bearing, brass, waste, packing, triple valve, pressure cock, brake, air hose or any other
part or attachment . ... " (Emphasis added.) During the legislative process, the Senate
Standing Committee recommended substituting the language "any other part of the
operating mechanism" in lieu of "any other part or attachment." SENATE JOURNAL, 27th
Leg., Reg. Sess., at 213 (Wash. 1941). The Washington Senate incorporated the
recommended amendment and the bill became law with the new "operating mechanism"
language. S.B. 201, 27th Leg., Reg. Sess. (Wash. 1941). With this history, we know that
the legislature did not intend the statute to apply broadly to any locomotive part or
attachment.
19
No. 33933-5-III
State v. Torres
To determine the meaning of a two-word phrase, such as "operating mechanism,"
this court may examine the dictionary definition of each individual word. State v. Kintz,
169 Wn.2d 537,548,238 P.3d 470 (2010). The dictionary defines "operating" as
engaged in some form of operation. WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY 15 81 ( 1993 ). The same dictionary defines "mechanism" as a piece of
machinery, a structure of working parts functioning together to produce an effect.
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1401 (1993). These broad
definitions suggest a locomotive's operating mechanisms work together to accomplish
the purpose of the locomotive, to propel and stop movement of the train. Even if a
window is a mechanism, a window is not used to operate a train. Even if a window is
necessary for the safe operation of a train, it is not used to run a train. The locomotive
may still move if one removes its windows.
The parts of a train catalogued in RCW 81.60.080 are: "journal bearing, brass,
waste, packing, triple valve, pressure cock, brake, air hose, or any other part of the
operating mechanism of any locomotive." A classic rule of statutory construction,
expressio unius est exclusio alterius, is Latin for when a statute specifically designates the
things on which it operates, there is an inference that the legislature intended all
omissions. State v. LG Electronics, Inc., 186 Wash. 2d 1, 9,375 P.3d 636 (2016). Thus, we
must assume that the legislature meant to exclude portions of the locomotive covered
under RCW 81.60.080. Under the principle ofnoscitur a sociis, the meaning of words
20
No. 33933-5-III
State v. Torres
may be indicated or controlled by those with which they are associated. State v. Jackson,
137 Wn.2d 712,729,976 P.2d 1229 (1999); In re Marriage ofTahat, 182 Wash. App. 655,
671,334 P.3d 1131 (2014). Thus, an operating mechanism within the meaning of the
statute should echo the nature of the discrete portions of the locomotive enumerated.
Terms used in the statute for train parts are unique to railroading and may also be
unique to the date of the statute's adoption. When a technical term is used in its technical
field, the term should be given its technical meaning by using a technical rather than a
general purpose dictionary to resolve the term's definition. Tingey v. Haisch, 159 Wash. 2d
652, 658, 152 P.3d 1020 (2007). A Google search for locomotive terms brings one first
to the American Railway Association's Locomotive Cyclopedia of American Practice
(6th ed. 1922). Amanda Torres also discovered this cyclopedia of terms. In her brief, she
lists the definitions of terms, listed in RCW 81.60.080, as found in the cyclopedia.
We note, as Amanda Torres observes, that all of the terms named in RCW
81.60.080 involve a moving mechanism that facilitates train movement or stopping. The
cyclopedia awkwardly defines a "journal bearing" as a "block of metal, usually some
kind of Brass or Bronze, which see, in contact with a journal, on which the load rests. In
locomotive building the term when unqualified means an engine or truck axle journal
bearing." Locomotive Cyclopedia ofAmerican Practice at 56. A "journal" is "[t]hat part
of an axle or shaft on which the journal bearing or brass rests." Locomotive Cyclopedia
of American Practice at 56. "Brass" means an "alloy of copper and zinc, commonly used
21
No. 33933-5-III
State v. Torres
to designate a journal bearing." Locomotive Cyclopedia ofAmerican Practice at 23.
"Waste" is defined as "[t]he spoiled bobbins of cotton or woolen mills, used for wiping
machinery and for JOURNAL PACKING." Locomotive Cyclopedia ofAmerican Practice at
96. "Packing" is a "device or arrangement for making a steam-tight fitting on the piston
rod and valve stem where they pass through their stuffing boxes on cylinder and steam
chest, respectively. Also used on air pump piston rods and throttle rods." Locomotive
Cyclopedia ofAmerican Practice at 64. "Journal packing" is "[w]aste, wool or other
fibrous material saturated with oil or grease, with which a journal box is filled to lubricate
the journal." Locomotive Cyclopedia ofAmerican Practice at 57. A "triple valve" is an
"air brake.~, Locomotive Cyclopedia ofAmerican Practice at 91. The cyclopedia does
not define a "pressure cock" but defines a "cock" as "rotary valve." Locomotive
Cyclopedia ofAmerican Practice at 29. Thus, a "pressure cock" should be a "pressure
valve." An "air hose" is an "air brake hose," which is "[f]lexible tubes made of alternate
layers of rubber and canvas or metal." Locomotive Cyclopedia ofAmerican Practice at
11. All of these parts are critical to the movement of the locomotive.
The State criticizes 21st century use of a 1922 cyclopedia of locomotive terms.
Nevertheless, to discern the intent of an early 20th century legislature, we best use a 1922
cyclopedia. When consulting a dictionary, a court should use a dictionary in use at the
time ofthe enactment. Sanfordv. MemberWorks, Inc., 625 F.3d 550,559 (9th Cir.
2010); State v. Leslie, 204 Or. App. 715, 719, 132 P.3d 37 (2006): Asbury v. Lombardi,
22
No. 33933-5-III
State v. Torres
846 S.W.2d 196, 201 (Mo. 1993) (en bane). Also, the State presents no contravening
definitions of the terms used in RCW 81.60.080.
We ascertain the legislature's intent using the plain meaning imparted by the text
of the provision and that of any related provisions. Department ofEcology v. Campbell
& Gwinn, LLC, 146 Wash. 2d 1, 11-12, 43 P.3d 4 (2002). So we focus briefly on the verbs
used in RCW 81.60.080. The statute punishes persons who "take, steal, remove, change,
add to, alter, or in any manner interfere with any journal bearing, brass, waste, packing,
triple valve, pressure cock, brake, air hose, or any other part of the operating mechanism
of any locomotive." The statute does not focus on damage to the locomotive but with
removal or altering a part so as to interfere with an operating mechanism. These verbs
suggest that the legislature sought to prohibit vandalism that impedes movement of the
train.
The State argues that the legislature intended "operating mechanisms" in
RCW 81.60.080 to refer to parts needed to operate the train in a legal manner so as to
benefit the owner. We find no hint in the statute that suggests the legislature meant legal
operation of the locomotive. We are unsure if the federal regulations that the State cites
existed in 1941 when the Washington Legislature enacted the criminal statute. We do not
know all of the parts of the train now required by federal regulations to be present. We
worry that an extensive list of such compulsory parts would in effect render vandalism to
23
No. 33933-5-III
State v. Torres
any part of the train a violation of the statute, when the legislature did not wish such a
broad interpretation.
Due process requires that jury instructions (1) allow the parties to argue all
theories of their respective cases supported by sufficient evidence, (2) fully instruct the
jury on the defense theory, (3) inform the jury ofthe applicable law, and (4) give the jury
discretion to decide questions of fact. State v. Koch, 157 Wash. App. 20, 33,237 P.3d 287
(2010). In determining whether a trial was fair and whether the defendant suffered
prejudice, the court should look to the trial irregularity and determine whether it may
have influenced the jury. State v. Davenport, 100 Wash. 2d 757, 762, 675 P.2d 1213
(1984).
Amanda Torres requested a jury instruction to fully inform the jury of the
applicable law. The windows and pressure gauges were the only damaged parts of the
train that the State argued as operating mechanisms. As windows are not operating
mechanisms, the trial court's failure to properly instruct the jury likely misled the jury in
a manner prejudicial to Torres. Thus, we reverse Torres' conviction for sabotage of
rolling stock.
The State presented testimony of damage to the glass tops of air gauges. One
witness testified that an air gauge is an operating mechanism. The testimony was unclear
as to whether the damage precluded the functioning of the gauge and the operation of the
train. Nevertheless, the jury could have found that, based on the testimony, Amanda
24
No. 33933-5-III
State v. Torres
Torres changed or interfered in an operating mechanism by reason of vandalizing the
gauge. Therefore, we remand for a new trial with proper jury instructions.
Issue 3: Whether the trial court erred when sentencing Amanda Torres?
Answer 3: We need not answer this question because we remand for other reasons
and a new sentencing hearing will be needed.
Amanda Torres requests a remand to the trial court for clarification that the
sentence's community custody condition and any recommended treatment must be
limited to alcohol and not include drug assessment or treatment. Although the State
concedes no error, the State, in the interest of judicial economy, agrees that the most
expeditious method to address this question is to remand this to the trial court for
clarification. Since we remand for resentencing anyway, we direct the court to clarify the
community custody condition.
Amanda Torres requests this court remand for correction of the judgment and
sentence to reflect the correct amount of legal financial obligations. Torres' judgment
and sentence, entered at the sentencing hearing, lists a total of $15,471.22 in financial
obligations, including $14,671.22 in restitution. Nevertheless, the trial court did not
determine restitution at sentencing, but rather set a later restitution hearing. The
subsequent hearing resulted in an order for $9,943.01 in restitution. The $15,471.22
judgment thus needs correction. The State agrees that the judgment and sentence requires
correction.
25
No. 33933-5-III
State v. Torres
Since Amanda Torres prevails in part on appeal, we deny the State an award of
costs on appeal.
CONCLUSIONS
We decline to address Amanda Torres' Fourth Amendment challenges to the entry
of her home and her seizure because of a lack of manifest constitutional error. Therefore,
we affirm Torres' convictions for second degree malicious mischief and second degree
burglary. Because of misleading jury instructions, we reverse Torres' conviction for
sabotage of rolling stock and remand for a new trial on this charge. At the completion of
proceedings regarding the sabotage charge, the trial court shall resentence Torres in light
of instructions in this opinion.
WE CONCUR:
di~% ~-
Siddoway, J. Lawrence-Berrey, J.
j
26