State Of Washington, Resp-cross App v. Jason C. Schwiesow, App-cross Resp ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 73624-8-1
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JASON CARL SCHWIESOW,
Appellant. FILED: October 10, 2016
Trickey, J. — Jason Schwiesow appeals his conviction for interferencewith
the reporting of domestic violence. He argues that, because Angelica Zumbroich
was not holding her cell phone or dialing 911 when Schwiesow destroyed it, the
State did not present sufficient evidence to show that he prevented or attempted
to prevent Zumbroich from reaching emergency services. Because the State's
evidence at trial established that Schwiesow prevented Zumbroich from contacting
emergency services by destroying her phone, we affirm.
FACTS
On October 4, 2014, Schwiesow and Zumbroich ended their relationship
and Schwiesow moved out of their shared house. On October 10, 2014,
Schwiesow returned to the house to retrieve several of his belongings while
Zumbroich was at work. Zumbroich joined him at the house to make sure that
Schwiesow did not damage any of her property.
When Schwiesow and Zumbroich met at the house, they argued and
Schwiesow quickly became violent. During the attack, Schwiesow pushed
Zumbroich to the ground and her cell phone fell out of her purse. Schwiesow
grabbed Zumbroich around her neck and repeatedly punched her in the head.
No. 73624-8-1 / 2
Zumbroich reached for her cell phone to call 911. Schwiesow saw Zumbroich
reaching for the cell phone, grabbed it, and threw it against a wall; the cell phone
broke into pieces. While Schwiesow was distracted with the cell phone, Zumbroich
ran to her neighbors' house and immediately asked them to call 911.
Schwiesow was charged with second degree assault and interfering with
the reporting of domestic violence. The jury convicted him on both counts. He
appeals only his conviction for interfering with the reporting of domestic violence.
ANALYSIS
Sufficiency of the Evidence
Schwiesow argues that there was insufficient evidence that he prevented
Zumbroich from contacting emergency services to support his conviction for
interfering with the reporting of domestic violence under RCW 9A.36.150. We
disagree.
Evidence is sufficient to sustain a conviction if, after viewing the evidence
in the light most favorable to the State, any rational trier offact could have found
the essential elements of the offense beyond a reasonable doubt. State v. Green.
94 Wash. 2d 216, 221-222, 616 P.2d 628 (1980). "A claim of insufficiency admits the
truth of the State's evidence and all inferences that reasonably can be drawn
therefrom." State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
Here, the State charged Schwiesow with interfering with the reporting of
domestic violence. It had to prove that Schwiesow committed a crime of domestic
violence, as defined in RCW 10.99.020, and "[p]revent[ed] or attempted] to
prevent the victim of or a witness to that domestic violence crime from calling a
No. 73624-8-1 / 3
911 emergency communication system, obtaining medical assistance, or making
a report to any law enforcement official." RCW 9A.36.150(1)(a), (b).
Washington courts have held that a range of actions constitute preventing
or attempting to prevent the reporting of domestic violence. See, e.g.. State v.
Clowes, 104 Wash. App. 935, 939, 18 P.3d 596 (2001) (defendant disconnected the
victim's phone during an argument and blocked her attempts to leave),
disapproved of on other grounds by State v. Nonoq, 169 Wash. 2d 220, 223, 237 P.3d
250 (2010) (defendant grabbed victim's cell phone from her hand while she was
attempting to call the police and destroyed it by throwing it against a wall); Statev.
Laramie, 141 Wash. App. 332, 336, 169 P.3d 859 (2007) (defendant grabbed a
phone away from victim when she tried to call 911 and threatened to "get her"
when he got out).
Schwiesow argues that the statute requires the victim to be in the process
of contacting emergency services when the prevention or attempt to prevent
occurs to support a conviction. He argues that, because Zumbroich had not yet
begun to call 911 when he destroyed the cell phone, he did not prevent her from
contacting emergency services within the meaning of the statute. He cites no
authority for this position. We decline to adopt such a narrow reading of the statute.
Here, the State established that Zumbroich was reaching for the cell phone
in response to Schwiesow repeatedly hitting her.1 Zumbroich testified at trial that
1 The parties dispute whether the evidence at trial established that Zumbroich was holding
the cell phone when Schwiesow grabbed it and destroyed it. This is irrelevant because
neither the statute nor Washington case law require the victim to have physical control of
the means of communicating or to be presently using the means of communication to
contact emergency services when the defendant acts.
No. 73624-8-1 / 4
she was "trying to get the phone to call 911" when Schwiesow destroyed it.2
Following Schwiesow's destruction of the cell phone, Zumbroich escaped from the
house and immediately contacted 911.
Viewing this evidence in a light most favorable to the State, a rational trier
of fact could find beyond a reasonable doubt that, by grabbing Zumbroich's cell
phone and destroying it, Schwiesow prevented Zumbroich from calling a 911
emergency communication system, obtaining medical assistance, or making a
report to any law enforcement official, thereby satisfying the essential element of
the crime at issue. Therefore, we find that Schwiesow's actions prevented
Zumbroich from contacting emergency services in violation of RCW 9A.36.150.
We affirm the judgment and sentence.
T^c^gy,^s
WE CONCUR:
CD
Cp
2Report or Proceedings (May 11, 2015) at 49. £o
4