State of Washington v. Ryan Andrew Barone ( 2019 )

FILED
JANUARY 24, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35916-6-III
Respondent, )
)
v. )
)
RYAN ANDREW BARONE, ) UNPUBLISHED OPINION
)
Appellant. )
)
SIDDOWAY, J. — Ryan Andrew Barone appeals his conviction of second degree
malicious mischief, challenging the sufficiency of the evidence. He also assigns error to
the trial court’s imposition of a $200 filing fee. We conclude that the evidence is
sufficient to support the jury’s verdict, and affirm. But we remand to strike the $200
filing fee.
No. 35916-6-III
State v. Barone
FACTS
On the afternoon of February 3, 2018, Whitman County police received 911 calls
reporting that a vehicle was speeding and passing other vehicles on the right shoulder of
the road and in the lane of oncoming traffic. An officer located the vehicle, which pulled
over soon after. The driver, Mr. Barone, was arrested for suspicion of driving under the
influence of an intoxicant. Due to Mr. Barone’s angry demeanor, the officer denied his
request to go to a bathroom. Mr. Barone then urinated in the patrol car while he was
being driven to jail.
At the jail, a corrections officer first placed Mr. Barone in the “wet cell,” the jail’s
term for the booking cell that contains a sink and toilet. Mr. Barone was angry and
uncooperative. He removed all of his urine-stained clothes, but refused to put on a jail-
issued jumpsuit. An officer served Mr. Barone a meal of a chili hot dog, salad, and two
juice cups. Almost immediately, Mr. Barone threw the food, dishes, and plastic-ware
into the toilet and tried to flush them down. As a consequence, he was moved to the “dry
cell,” which had no sink or toilet. Mr. Barone then proceeded to urinate on the floor of
the “dry cell.” Officers reported that he acted erratically, running and jumping at the cell
camera. As a result of his actions, which created a biohazard, the jail’s only two booking
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State v. Barone
cells had to be decontaminated before anyone else could be placed there. By midnight
that night, both cells had been adequately cleaned.
The State charged Mr. Barone with malicious mischief in the second degree, as
follows:
(1) A person is guilty of malicious mischief in the second degree if he or
she knowingly and maliciously:
....
(b) Creates a substantial risk of interruption or impairment of service
rendered to the public, by physically damaging or tampering with an
emergency vehicle or property of the state, a political subdivision thereof,
or a public utility or mode of public transportation, power, or
communication.
RCW 9A.48.080(1)(b). At the jury trial, the State presented the testimony of the
Whitman County corrections officers; the defense rested without presenting testimony.
The jury found Mr. Barone guilty as charged.
SUFFICIENCY OF THE EVIDENCE
Mr. Barone contends the evidence is insufficient to support the jury’s verdict that
he committed second degree malicious mischief. He argues that the evidence fails to
show that he knowingly and maliciously created a substantial risk of interruption or
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No. 35916-6-III
State v. Barone
impairment of a service rendered to the public. In particular, he asserts that his behavior
was not knowing or malicious and did not substantially interrupt the use of the jail cells.
When the sufficiency of the evidence to support a conviction is challenged, we ask
whether, after viewing the evidence in the light most favorable to the State, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. State v. Cardenas-Flores, 189 Wash. 2d 243, 273, 401 P.3d 19 (2017). We give
deference to the trier of fact, who resolves conflicts in testimony and evaluates the
credibility if the witnesses. State v. Young, 158 Wash. App. 707, 722, 243 P.3d 172 (2010).
Mr. Barone first contends the State failed to present sufficient evidence that he
acted maliciously. “Maliciousness may be inferred from an act wrongfully done without
just cause or excuse.” State v. Hernandez, 120 Wash. App. 389, 391, 85 P.3d 398 (2004)
(citing RCW 9A.04.110(12)). Mr. Barone’s act of throwing his dinner, dishes, and
plastic ware into the toilet and flushing was wrongful and without just cause or excuse.
The jury was entitled to infer that he acted maliciously.
Citing Hernandez, Mr. Barone next contends that the State failed to prove that he
interrupted or impaired a public service by forcing the staff to clean the holding cells. In
Hernandez, 120 Wash. App. at 392, this court held that the defendant’s act of spitting four
times in a patrol car did not constitute knowing and malicious tampering that created a
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State v. Barone
substantial risk of interrupting or impairing service to the public. Hernanez is
distinguishable because simply spitting four times in a patrol car creates little risk that
police services will be impaired or interrupted. See State v. Turner, 167 Wash. App. 871,
877, 275 P.3d 356 (2012). Under RCW 9A.48.080(1)(b), the State is required to prove
that Mr. Barone created a “substantial risk” of interruption or impairment, not that he
actually interrupted or impaired a service rendered to the public. Turner, 167 Wash. App.
at 877. By plugging the toilet of one holding cell and urinating on the floor of the only
other holding cell, Mr. Barone created a substantial risk that that the lodging of prisoners
in those cells would be interrupted for a period of time.
Viewing the evidence in the light most favorable to the State, we hold that the
prosecution presented sufficient evidence for a rational juror to conclude beyond a
reasonable doubt that Mr. Barone knowingly and maliciously tampered with the holding
cells and thereby created a substantial risk of interruption or impairment of service to the
public. RCW 9A.48.080(1)(b).
FILING FEE
Mr. Barone filed a supplemental brief challenging the trial court’s imposition of a
criminal filing fee. At the time he was sentenced, this fee was mandatory. Former RCW
36.18.020(2)(b) (2015). A legislative enactment effective June 7, 2018, amended RCW
36.18.020(2)(b) to prohibit imposition of the $200 criminal filing fee on indigent
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No. 35916-6-111
State v. Barone
defendants. This amendment applies prospectively to cases pending on appeal. State v.
Ramirez, 191 Wash. 2d 732, 745-49, 426 P.3d 714 (2018). That includes Mr. Barone's
case. The trial court found Mr. Barone indigent and he has filed with this court a report
of continued indigency. As a result, we direct the trial court to strike the filing fee.
CONCLUSION
The sentence is remanded to strike the criminal filing fee. Otherwise, the
judgment and sentence is affirmed.
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.
?>M~ .~-
oway,J.
WE CONCUR:
Lawrence-Berrey, C.J.
Pennell, J.
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