State of Washington v. Kirt Anthony Mcpherson

FILED

JAN 9, 2014

In the Office of the Clerk of Court

W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON, )
) No.30805-7-III
Respondent, )
)
v. )
)
KIRT ANTHONY MCPHERSON, ) UNPUBLISHED OPINION
)
Appellant. )

KORSMO, C.J. This appeal challenges the sufficiency ofthe evidence to support

three ofKirt McPherson's six convictions from an incident occurring January 27,2012,

and also the sentence imposed by the court. We reverse one conviction and remand for

resentencing.

FACTS

A jury convicted Mr. McPherson of six counts: second degree malicious mischief,

reckless driving, and four counts of second degree assault with a deadly weapon. This

appeal challenges the malicious mischief conviction and two of the assault counts.

Mr. McPherson's girl friend, Ms. Tuck, was friends with Ms. Demintieff. Tuck

brought her daughter, T.M., to play with Ms. Demintieffs daughter. McPherson later
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State v. McPherson

picked up T.M. and brought her home, but Tuck spent the night at Ms. Demintieff's

house. McPherson picked her up the following morning.

Around 4:20 pm that afternoon, Ms. Tuck called Ms. Demintieff and requested a

ride. Ms. Demintieffput her two children in her boyfriend's truck and went to pick up

Ms. Tuck. When she arrived at Mt. Adams highway and Ladiges Lane, Ms. Tuck was

standing in the snow on the side of the road next to a fence. Kirt McPherson was there in

his truck.

Mr. McPherson was stopped initially, but then he drove toward Ms. Demintieff,

turning onto a road. Ms. Demintieff indicated that by the way he turned, he seemed

angry. Ms. Demintieff continued driving past Ms. Tuck to allow Ms. Tuck more time to

walk. Ms. Demintieffthen went back to the intersection ofMt. Adams and Ladiges, and

waited. Ms. Demintieff saw Ms. Tuck, much where she was before, screaming and

appearing terrified. Mr. McPherson was revving the motor of his truck. He again drove

toward Ms. Demintieff a ways and then stopped 20 to 25 feet away from her truck. Ms.

Demintieff testified that her son had become upset. After Mr. McPherson stopped, he

again began to rev his motor, and yelled at Ms. Demintieff, though she couldn't hear

what he said. At that point he drove at Ms. Demintieff's truck "fairly fast" and hit the

front driver's side of her truck, then backed up and yelled at her to "get the hell out of

there." Demintieff left.

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The impact damaged the late model Ford F250 truck Ms. Demintieffwas driving.

There was a dent in the front driver's side fender, the front driver's side tire was

damaged, the bumper was shoved over, and the tie rod was bent. The truck was never

repaired, but rather sold "as-is." No testimony concerning the cost of repairs or of the

diminution of value to the truck was presented to the jury. The State argued that the jury

could infer from its own experience that the amount of damage was over $750.

After receiving a standard range sentence, Mr. McPherson timely appealed to this

court.

ANALYSIS

The sole issues we will address involve Mr. McPherson's challenges to the

sufficiency ofthe evidence of the malicious mischief charge and the two counts involving

Ms. Demintieffs children. 1 We reverse the former count and affirm the latter.

Well settled case authority governs review of this issue. A reviewing court does

not weigh evidence or sift through competing testimony. Instead, the question presented

is whether there is sufficient evidence to support the jury's determination that each

element ofthe crime was proven beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216,

I Mr. McPherson also presents two sentencing arguments; the State concedes error
on both matters. As resentencing is required by our decision, we do not need to further
address those claims, although we note that RCW 9.94A.530(2) will govern the scope of
the sentencing hearing. See State v. Tewee, _ Wn. App._, 309 P.3d 791 (2013).

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221-22,616 P.2d 628 (1980). The reviewing court will consider the evidence in a light

most favorable to the prosecution. Id.

Malicious Mischief As charged here, to establish second degree malicious

mischief the State was required to prove that Mr. McPherson knowingly and maliciously

caused physical damage in an amount exceeding seven hundred fifty dollars ($750) to the

property of another. It is conceded that no evidence of valuation was presented to the

jury. Instead, the case was argued to the jury on the notion that the damages described

were sufficient for the jury in its collective experience to conclude were in excess of the

statutory limits. The jury was also instructed on the included offense of third degree

malicious mischief for which the State was not required to prove any damage value. The

jury did not reach that instruction because it found Mr. McPherson guilty on the greater

offense.

Under the malicious mischief statute, "damages" includes both "its ordinary

meaning" as well as "any diminution in the value of any property as a consequence of an

act." RCW 9A.48.010(1)(b). Although we share the jury's view that the described

damages undoubtedly exceeded $750, we believe that the State was still required to

present evidence of valuation. It could have been in the form of damage repair estimates

from a body shop or insurance adjustor, or it could have been evidence showing the

diminution in value such as the sale price of the truck "as is" compared with the book

value of the truck without the damages.

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Our case law confirms that valuation cannot be established by speculation. The

value damaged by the malicious act "is a true element" of malicious mischief "that must

be proved beyond a reasonable doubt." State v. Timothy K., 107 Wn. App. 784, 789, 27

P.3d 1263 (2001). Proof of value typically comes in the form of testimony from

witnesses. State v. Claybourne, 14 Wn. App. 314, 541 P.2d 1230 (1975). While a stolen

(or damaged) item has evidentiary value to the jury, it does so only as a foundation for

the proof of its valuation. Id. at 315-16 (citing State v. Cohen, 143 Wash. 464, 255 P.

910 (1927)). The Claybourne court also recognized:

Nor, in the absence of any proof of value, could the jury be permitted to
speculate on this point merely from the appearance of the articles.

Id. at 315 (citing United States v. Wilson, 284 F. 2d 407 (4th Cir. 1960)).

In other words, while evidence may establish what or how badly an item was

damaged, the valuation of that damage is a separate item of proof. There needed to be

some proof of how much the value of the truck was diminished by the injuries inflicted

on it, or evidence of what repairing the damage would have cost. RCW 9A.48.010(1)(b).

Because that was not done here, the jury could only have speculated on the amount it

would have taken to fix the truck. The evidence was insufficient to support the valuation

element of the second degree malicious mischief charge.

When the evidence is insufficient to support a crime, but is sufficient to support a

conviction for a lesser degree crime, an appellate court may direct the trial court to enter

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judgment on the lesser offense. In re Pers. Restraint ofHeidari, 174 Wn.2d 288,292,

274 P.3d 366 (2012). It may do so only if the jury was instructed on the lesser offense

and the jury's verdict necessarily established each element of the lesser crime. Id. at 292

96. That is the situation here. The jury was instructed on the lesser offense of third

degree malicious mischief for which no value needed to be proven. Timothy K., 107 Wn.

App. at 790 n.5. The jury did conclude that Mr. McPherson knowingly and maliciously

damaged the property of another. Thus, the crime of third degree malicious mischief was

established.

We reverse the conviction for second degree malicious mischief and remand for

resentencing on the lesser degree offense of third degree malicious mischief.

Assault Convictions. Mr. McPherson also challenges the two second degree

assault convictions involving Ms. Demintieffs children, arguing that his intent to injure

her cannot be transferred to the children. We believe this argument is misdirected.

As charged here, the prosecution was required to prove that Mr. McPherson

assaulted each of the victims with a deadly weapon-his truck. Assault was defined for

the jury as an attempted battery or the intentional inflection of apprehension and fear of

bodily injury.2 The jury also was instructed that a person acts "intentionally when acting

with the objective or purpose to accomplish a result which constitutes a crime.,,3

2 Instruction 12; Clerk's Papers (CP) at 85.

3 Instruction 13; CP at 86.

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Mr. McPherson argues that because he did not know the children were in the truck

when he attacked, he could not be guilty of assaulting them because he only intended to

assault Ms. Demintieff and that intent could not be transferred to her children. Whether

or not Mr. McPherson. knew the children were in the truck was a question for the jury to

decide. If Ms. Demintieffs son could see and hear Mr. McPherson before the ramming

to the extent that he was upset, the jury could likewise conclude that Mr. McPherson

could see the children. The evidence does not suggest that there was a reason Mr.

McPherson could not see the children. It was sufficient to allow the jury to consider the

issue.

This was not a case of transferred intent. Mr. McPherson attacked the truck with

the intent to injure its occupants. That was the act he intentionally undertook knowing

that it would constitute a crime. That intent applied to each of the named victims without

need to transfer a specific intent from one undisputed victim to the others. If the jury

believed that he did not know the children were in the truck, then it would have acquitted

him of attempted battery. The evidence supports the jury's determination that Mr.

McPherson intentionally assaulted the children in the truck he was ramming.

Accordingly, the evidence did support the jury's assault verdicts.

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Affirmed in part, reversed in part, and remanded for resentencing.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

, Kor mo, C.J.

WE CONCUR:

Brown, J.