State v. J.A.V.

501 P.3d 159

STATE of Washington, Respondent,

v.J.A.V., Appellant.

No. 37885-3-III

Court of Appeals of Washington, Division 3.

FILED DECEMBER 23, 2021

Eric J. Nielsen, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.

Gregory Lee Zempel, Kittitas County Prosecuting Attorney, Carole Louise Highland, Kittitas County Prosecuting Attorney's Office, 205 W 5th Ave. Ste. 213, Ellensburg, WA, 98926-2887, for Respondent.

PUBLISHED OPINION

Fearing, J. ¶1 Juvenile J.A.V. challenges his conviction for malicious mischief in the third degree and his manifest injustice disposition. We affirm his conviction, but reverse his disposition.

FACTS

¶2 During the late hours of June 30, J.A.V., while driving a Hummer, retrieved his friend J.B. The two intended to drive to an agriculture tunnel. Unbeknownst to J.A.V., J.B. toted an incendiary device that he fabricated from a soda bottle. J.B. wished to surprise J.A.V. and light the device inside the tunnel. J.B. believed the tunnel to be a safe place for this entertainment because of the lack of debris to catch fire. J.B. secreted the incendiary bottle in the passenger side door. A spray paint can lay at J.B.’s feet on the passenger's side of the Hummer.

¶3 J.A.V. stopped the Hummer outside the agricultural tunnel at the end of Bull Road, near Ellensburg. J.B. handed J.A.V. the spray paint can. J.A.V. walked into the tunnel, while J.B. remained inside the Hummer. J.B. did not see the actions taken by J.A.V. inside the tunnel. J.A.V. did not testify at trial, so we do not know the facts from his vantage point.

¶4 During the darkness of midnight, Ellensburg Police Officer Christian Alviar responded to a complaint of a Hummer being poorly driven on Bull Road outside of Ellensburg. Officer Alviar found the Hummer near an agricultural tunnel on the south end of Bull Road. The public could formerly drive through the tunnel and continue on Bull Road. As Officer Alviar walked toward the Hummer, he saw a young male leave the tunnel and run toward the Hummer's open driver seat. At trial, J.B. identified this young man as J.A.V. Officer Alviar yelled: " ‘Stop, I need to talk to you.’ " Report of Proceedings (RP) at 52. Officer Alviar then noticed a second young male curled, and with his face hidden, in the vehicle's driver seat. This second teenager was J.B.

¶5 J.A.V. entered the Hummer and turned on the vehicle's engine. Ellensburg Officer Christian Alviar repeated his instruction to stop. J.A.V. revved the Hummer engine four times. A worried Alviar called for assistance. Alviar also shouted to the driver to roll down the window. The Hummer instead left northbound on narrow Bull Road at a high rate of speed.

¶6 Officer Christian Alviar returned to his patrol car and chased the Hummer. Alviar did not catch up to the Hummer despite his traveling at 68 miles per hour. Bull Road's speed limit was 35 miles-per-hour.

¶7 Near the Aspen Grove complex, Ellensburg Officer Christian Alviar found the Hummer parked along a road. Both doors of the Hummer were open. J.B. and J.A.V. had fled. Officer Alviar found a Molotov cocktail and a blue bottle of spray paint in the vehicle. Alviar smelled gasoline in the cocktail bottle.

¶8 Officer Christian Alviar and other responding Ellensburg officers failed to locate J.A.V. and J.B., the two occupants of the Hummer. Officer Alviar returned to the agricultural tunnel near Bull Road, at where he initially saw the young man leave and run to the Hummer. Alviar saw spray paint inside the tunnel. He felt and smelled the freshness of the paint.

¶9 Officer Christian Alviar traced the Hummer's registration to a lady who Alviar knew. Officer Alviar also knew J.A.V. to be the lady's son.

¶10 J.A.V.’s criminal history prior to the agriculture tunnel excursion included juvenile convictions for felony harassment, two counts of theft in the third degree, assault in the fourth degree, and three counts of malicious mischief.

PROCEDURE

¶11 The State of Washington charged J.A.V. with possession of an incendiary device, attempting to elude a police vehicle, malicious mischief in the third degree, and taking a motor vehicle without permission in the second degree. The State did not seek, in its information, a manifest injustice disposition or plead any aggravating factors.

¶12 During trial in early October 2020, the State submitted no evidence as to the ownership of the agricultural tunnel. The State also offered no evidence of whether or not J.A.V. possessed permission to paint the tunnel.

¶13 At the close of trial, the juvenile court remarked:

I'm going to make the following findings:

....

[J.A.V.’s companion, J.B.] says there was a can of blue spray paint that's sitting in the car, and then when he gets in he kind of kicks it so he knows it's right there by his feet. That means it's been—it's in the vehicle before he even gets in.

There is wet spray paint in the tunnel. The officer sees somebody running from the tunnel, get in the driver's seat—which again, it's more likely, since it's his family's vehicle, and he would have been the one that had the best access to the keys it's much more likely that—it's corroborating evidence, I think, that—[J.A.V.] is the one who was actually in the tunnel with the spray paint.

Can is—got recent blue on it, it's been recently fired. I think it's beyond a reasonable doubt that—that [J.A.V.] wrote, painted or drew inscription, figure or mark of any type on a public or private building or structure owned by another person without express permission of the owner—Anyway, it appears there was no—no testimony about the cost of it, so it would have to be third degree. And that it happened in the state of Washington.

So I think he's been proven guilty beyond a reasonable doubt of the malicious mischief in the third degree.

RP at 234, 247-48.

¶14 The juvenile court found J.A.V. guilty of malicious mischief in the third degree and guilty of taking a motor vehicle without permission in the second degree. The court found J.A.V. not guilty of possession of an incendiary device, as the State failed to prove beyond a reasonable doubt that J.A.V. knew his companion J.B. had brought the Molotov cocktail into the car. The juvenile court also found J.A.V. not guilty of attempting to elude a police vehicle.

¶15 Juvenile Probation Counselor Mayra Chavez prepared a predisposition report for J.A.V. In the report, Chavez related J.A.V.’s criminal history and failure to comply with prior disposition orders. In her conclusion, Chavez wrote:

On October 27, 2020 it was my recommendation that [J.A.V.] remain in our community and be given one last opportunity to participate in identified services. Unfortunately, due to [J.A.V.’s] alleged crimes on the night of October 28, 2020, I'm not willing to advocate for him at this time[.] This has been a very difficult decision but due to [J.A.V.’s] ongoing actions he is a threat to the community and himself. [J.A.V.] has been working with our office since March 18, 2019 and no progress has been made. Things have progressively gotten worse to the point that [J.A.V.] has accumulated 3 points at the age of 13[.] He is pending two additional felonies currently[.] While in a secured facility, [J.A.V.] will be able to remain sober, participate consistently in school, mental health, and chemical dependency treatment.

Clerk's Papers at 44. The alleged crimes on the night of October 28 occurred after J.A.V.’s malicious mischief trial concluded on October 15, 2020.

¶16 At the disposition hearing, the juvenile court indicated it had read the predisposition report. Mayra Chavez testified and summarized J.A.V.’s criminal history prior to his malicious mischief conviction and averred that he had two felony charges pending. Chavez declared:

It was my intention to advocate for [J.A.V.] one last time and give him the opportunity to remain in our community. But given this pending matter from October 28th I cannot advocate for him today.

RP at 263-64.

¶17 During the disposition hearing, the State mentioned J.A.V.’s earlier criminal history and that he was in pretrial detention facing two new felony charges. The prosecutor maintained that J.A.V.’s recent criminal history justified an upward manifest injustice disposition.

¶18 During the disposition hearing, the juvenile court applied two aggravating factors supporting a manifest injustice disposition:

(1) J.A.V. had "a recent criminal history" and repeatedly failed to comply with conditions of a recent dispositional order and diversion agreement; and (2) J.A.V. led a criminal enterprise, which included several persons. The court based its finding of J.A.V.’s leadership on the facts that J.A.V. drove the Hummer and entered the agricultural tunnel.

¶19 During the disposition hearing, the juvenile court commented:

Now, you have—some extremely serious matters that involve firearms, which, frankly, involve, you know, the possibility of—violent behavior.

But that's not before me and you haven't been found guilty of that. The only thing that I can say about that is that I have found probable cause, and that you were released on conditions from—after your trial, and—and here you are back, you know, sitting in detention again. It's just not a good sign. It's just a revolving door for you. You get out, and very soon you're sneaking out in the middle of the night—

RP at 271. The court added:

The other cause is a whole ‘nother ball game. It's a whole ‘nother thing. I don't know whether you'll be found guilty of it or not. And I don't know what will happen to you as a sentencing thing. But—it's a different type of charge.

RP at 272. The court imposed twenty weeks’ confinement.

LAW AND ANALYSIS

¶20 On appeal, J.A.V. contends that insufficient evidence supported his conviction for malicious mischief. He also contends that the juvenile court violated his due process rights when imposing a manifest injustice disposition.

I. Sufficiency of Evidence

¶21 When arguing that insufficient evidence supported his conviction for malicious...