State of Washington v. Eluterio Morfin-Camacho ( 2013 )

FILED
APR 25, 2013
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. 30236-9-111
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
ELUTERIO MORFIN-CAMACHO, )
)
Appellant. )
KORSMO, C.J. - A stolen potato truck burst through the side of a warehouse and
left the scene without providing the information required of a driver involved in an
accident. We conclude the evidence supported the hit and run and other associated
convictions.
FACTS
The bizarre events of the early hours ofMay 22,2011, allegedly had their genesis
in a motel parking lot. Mr. Eluterio Morfin-Camacho was assisting his girl friend in
moving from one Pasco motel to another when he encountered two strangers in the
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State v. Morfin-Camacho
parking lot of the Motel 6 shortly after midnight. They invited him to ~~party" with them
and, after the group drove to the Airport Motel l in two vehicles, he got into their car.
After driving away from the hotel, one of the men pointed an automatic pistol at
Mr. Morfin-Camacho and ordered him to remove all of his clothing and jewelry. He
complied with the command. The car stopped and he was ordered out. Fearing that he
would be shot, Mr. Morfin-Camacho fled to a nearby warehouse while the two men drove
back toward the Airport Motel. Finding a partially opened roll-up door, he entered and
discovered a potato transport truck and a pair of overalls, but no telephone. While
dressing in the overalls, he heard another vehicle outside. He jumped into the truck,
started it up, and drove out through the door without attempting to open it. The door was
destroyed and the truck sustained damages in excess of $1 ,200.
Mr. Morfin-Camacho drove the truck away from the scene and stopped at the
Airport Motel. The manager refused to allow him to use the telephone and ordered him
to remove the truck from the parking lot. Mr. Morfin-Camacho moved it to a nearby gas
station and returned to the motel. He borrowed a phone from a stranger and used it to
call another friend rather than the police. He later admitted that he knew he was only
about a mile away from the police station, but he made no effort to contact them.
I The Airport Motel was the destination to which his girl friend was moving.
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The motel manager anonymously called the police. They responded and found
Mr. Morfin-Camacho. The officers described him as excited, smelling of intoxicants, and
appearing to have mood swings. He was barefooted and dressed solely in the overalls; he
still had the keys to the truck. He showed officers the warehouse where he had obtained
the potato truck.
The prosecutor filed charges of second degree burglary, second degree taking a
motor vehicle, second degree malicious mischief, and failure to remain at the scene of an
accident. The case eventually proceeded to bench trial. The case was defended on the
basis of necessity. The trial judge found that Mr. Morfin-Camacho was not a credible
witness, but nonetheless he acquitted him on the burglary count. The court found him
guilty on the three remaining charges.
The court imposed concurrent terms of 90 days' incarceration for the three
offenses. Mr. Morfin-Camacho then timely appealed to this court.
ANALYSIS
This appeal challenges the adequacy of the charging document, the sufficiency of
the evidence supporting the three convictions, and the performance of defense counsel for
pursuing a necessity defense instead of a duress defense. 2 We will address the issues in
that order.
2 Appellant also argues that the CrR 6.1 findings are inadequate, primarily as they
fail to address the mental states at issue. In light of the defense at trial, which admitted
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Charging Document
Mr. Morfin-Camacho initially argues that the misdemeanor hit-and-run charge was
not adequately stated in the charging document. He did not raise this claim in the trial
court. We agree that the charging document is deficient.
Settled principles govern review of this claim. A charging document must state
the elements of the alleged crime in order to give the accused an understanding of the
crime charged. "All essential elements of a crime, statutory or otherwise, must be
included in a charging document in order to afford notice to an accused of the nature and
cause of the accusation against him." State v. Kjorsvik, 117 Wn.2d 93,97, 812 P.2d 86(1991). When challenged for the first time after a verdict has been returned, courts will
liberally construe the document to see if the necessary facts can be found. If not, the
charge will be dismissed without prejudice. Even if the charge is stated, a defendant who
shows prejudice from "inartful" pleading also receives a dismissal of charges without
prejudice. fd. at 105-06.
Mr. Morfin-Camacho did not challenge the charging document until this appeal.
Thus, the liberal construction standard applies here. fd. RCW 46.52.010(2) governs the
circumstance of an accident resulting in property damage, while RCW 46.52.010(1)
the charges but claimed justification, we do not see that the findings prejudiced the
appeal, so there is no need to remand for a more thorough explanation. State v. Head,
136 Wn.2d 619,624-25,964 P.2d 1187 (1998).
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defines an operator's duties when striking an unattended vehicle. 3 The duties set forth in
RCW 46.52.010(2) are:
The driver of any vehicle involved in an accident resulting only in damage
to property fixed or placed upon or adjacent to any public highway shall
take reasonable steps to locate and notify the owner or person in charge of
such property of such fact and of the name and address of the operator and
owner of the vehicle striking such property, or shall leave in a conspicuous
place upon the property struck a written notice, giving the name and
address of the operator and of the owner ofthe vehicle so striking the
property, and such person shall further make report of such accident as in
the case of other accidents upon the public highways of this state.
The final charging document filed in this case alleged in count 1 that
the said Eluterio Camacho in the County of Franklin, State of Washington,
on or about March 22, 2011, then and there, while driving a motor vehicle,
with knowledge that an accident occurred, was involved in an accident
resulting in property damage to an unattended vehicle or other property,
failed to immediately stop his vehicle at the scene of the accident or as
close thereto as possible, and locate or attempt to locate, and notify the
operator or owner or person in charge of the damaged property of his name
and address, or failed to leave in a conspicuous place upon the damaged
property a written notice containing his name and address~
Clerk's Papers at 28.
The statute requires a driver involved in an accident that causes damage to
property adjacent to a public highway to (1) take reasonable steps to notify the property
owner or to leave a note with his identifying information, and (2) to make a report ofthe
accident. The charging document, however, does not mention the reporting requirement.
3 Prior to amendment by Laws of2003, ch. 53, § 241, the statute treated
unattended vehicles and other property the same for purposes of this statute.
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Even giving the charging document the liberal construction required by the belated
challenge, it is deficient on the accident reporting element. A driver's duties are two-fold
after an accident-notify the property owner (by one of two methods) and file an accident
report. The charging document here does not state that second duty and there is no way
to infer that element from the other charging language. 4 It did not adequately notify Mr.
Morfin-Camacho of all of the elements of the offense.
Accordingly, the charge of failure to stop in count I is reversed without prejudice.
Sufficiency o/the Evidence
Mr. Morfin-Camacho challenges the sufficiency of the evidence to support all
three convictions, arguing that the State failed to prove that he had not properly reported
the accident and that his actions were justified, thus negating the mental elements of the
other two counts. We disagree.
The sufficiency of the evidence to support a verdict also is reviewed according to
long-settled principles. The reviewing court does not weigh the evidence or sift through
competing testimony. Instead, the focus is whether there is sufficient evidence to support
the determination that each element ofthe crime was proved beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2181, 61 L. Ed. 2d 560 (1979); State v.
4We agree with appellant that there is significant extraneous language in the
charging document, which appears to have combined the requirements of RCW
46.52.020(1) and (2), but we disagree that he was prejudiced by its inclusion.
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Green, 94 Wn.2d 216, 221-22,616 P.2d 628 (1980). The reviewing court will consider
the evidence in a light most favorable to the prosecution. Green, 94 Wn.2d at 221-22.
Failure to Stop. Appellant contends that the State did not establish that the
warehouse was adjacent to a public highway or that he failed in his reporting duties. The
evidence did establish those elements of the crime.
As noted previously, RCW 46.52.010(2) requires the State to prove that the
defendant damaged "property fixed or placed upon or adjacent to any public highway."
There was evidence in the record to support this element. Officer Anthony Aceves
described the location as "on 4th" and that if you traveled on 4th, "you'll run right into
it." Report of Proceedings (July 13,2011) at 14. Exhibit 2 is a photo showing the
warehouse; the street is visible nearby.5 Viewing the evidence most favorably to the
prosecution, the warehouse was "adjacent" to a "public highway."
The reporting element was also established. Mr. Morfin-Camacho did not leave a
note at the scene, nor did he communicate with the building owner and identifY himself
as the person who drove through the warehouse. He likewise did not file an accident
report. Merely talking to police does not satisfY these two requirements of the statute.
5 Indeed, Mr. Morfin-Camacho's justification for taking the truck and driving
through the door (instead of opening it) was that he heard a vehicle right outside the
warehouse. That explanation itself suggests the building was adjacent to a public
highway.
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Viewed in a light most favorable to the prosecution, the evidence supported the
conviction.
Taking a Motor Vehicle and Malicious Mischief Appellant also contends that, in
light of his desperate situation, the record does not support that he acted culpably. His
view of the incident ignores the standards that govern this court's review.
A person commits second degree taking a motor vehicle when, without
permission, he "intentionally ... drives away any ... motor vehicle" belonging to
another person. RCW 9A.56.075(1). Second degree malicious mischief is committed
when a person "knowingly and maliciously [c]auses physical damage to the property of
another in an amount exceeding seven hundred fifty dollars." RCW 9A.48.080(l)(a).
Mr. Morfin-Camacho contends that he did not have the requisite mental state
because he was acting to save himself rather than to take or destroy the property of
another. This argument fails on two accounts. First, the trial court expressly found Mr.
Morfin-Camacho was not credible and that his story made no sense. 6 This court has to
defer to that finding and cannot engage in its own credibility determination. Quinn v.
Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009).
6Despite knowing that the robbers had driven back toward the motel where he had
been abducted, Mr. Morfin-Camacho returned there and then made no effort to contact
police. The trier of fact understandably did not credit the story.
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Second, this argument stands appellate review on its head. We look at the
evidence in the light most favorable to the prosecution. Viewed in the proper manner, the
evidence easily supported the verdicts. The appellant admittedly drove off with the truck
for the purpose of getting away from the warehouse. It was intentionally taken.
Similarly, he knowingly drove through the warehouse door rather than attempt to open it,
and the resulting damage to the door and the truck easily exceeded the $750 statutory
limit. Without considering his professed reasoning for doing so, the evidence still amply
supported the conviction.
The evidence was sufficient to support all three convictions~
Effective Assistance o/Counsel
Mr. Morfin-Camacho also argues that his counsel erred by pursuing a necessity
defense instead of a duress defense. This was a matter of tactics, but counsel also
pursued the proper defense under the evidence. Mr. Morfin-Camacho also was not
prejudiced by the choice of defenses.
As with the other issues presented in this appeal, the standards of review of a
claim of ineffective assistance of counsel are well understood. The Sixth Amendment
guaranty of the right to counsel requires that an attorney perform to the standards of the
profession. Counsel's failure to live up to those standards will require a new trial when
the client has been prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322,
334-35, 899 P .2d 1251 (1995). In evaluating ineffectiveness claims, courts must be
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highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for
finding error. Stricklandv. Washington, 466 U.S. 668, 689-91,104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). To prevail on a claim of ineffective assistance, the defendant must show
both that his counsel erred and that the error was so significant, in light of the entire trial
record, that it deprived him of a fair trial. Id. at 690-92.
Necessity is a common law defense that excuses criminal conduct when pressure
brought on "by forces of nature" leads to a criminal act that avoids a greater harm. State
v. Gal/egos, 73 Wn. App. 644, 651, 871 P.2d 621 (1994); State v. Turner, 42 Wn. App.
242,247, 711 P.2d 353 (1985); State v. Diana, 24 Wn. App. 908, 604 P.2d 1312 (1979).
In contrast, duress is a statutory defense. The legislature has provided in relevant part
that duress exists when
[t]he actor participated in the crime under compulsion by another who by
threat or use of force created an apprehension in the mind of the actor that
in case of refusal he or she or another would be liable to immediate death or
immediate grievous bodily injury.
RCW 9A.l6.060(1)(a).
Appellant argues that the necessity defense did not apply in this circumstance
because it was the actions of the two robbers, not a "force of nature," that compelled his
criminal actions. There is some support for this argument. See Gal/egos, 73 Wn. App.
644 (friend's need of aid did not support necessity defense); Diana, 24 Wn. App. 908(medical necessity for marijuana use because of disease). However, Division Two of this
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court has concluded that a necessity defense is available when the defendant has been
threatened with criminal violence. State v. Niemczyk, 31 Wn. App. 803, 644 P.2d 759(1982) (escape from prison to avoid sexual assault). We need not resolve this split of
authority here because the trial court did consider the necessity defense. It rejected the
defense because the defendant's story was not credible; it did not find the defense
unavailable as a matter of law.
By the plain terms of the duress statute, the defense was not available to Mr.
Morfin-Camacho. Duress applies when another person coerces the defendant into
committing the crime by threatened use of force if the person refuses to participate. It
does not apply to crimes committed to avoid another person's threatened criminal
activity. In other words, duress is a defense if one is forced by another to commit the
crime in question; it is not a defense to a crime committed out of fear of injury by
another. See Turner, 42 Wn. App. 242 (duress proper instead of necessity when
defendant forced to deliver drugs to prison to avoid assaults against her husband and
son); Niemczyk, 31 Wn. App. 803 (duress not available in escape from prison to avoid
sexual assault).
Duress was not available under these facts. Defense counsel therefore was not
ineffective for failing to use that defense. Moreover, even if the duress defense had been
available here, counsel cannot be faulted for instead choosing to use the necessity defense
since Niemczyk suggested it was available. Thus, this strategic decision is beyond
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challenge per Strickland. Finally, even if the necessity defense had been improperly
presented, Mr. Morfin-Camacho cannot establish prejudice because the trial court
nonetheless considered the defense.
For all of the stated reasons, appellant has not borne his burden of establishing that
counsel performed deficiently.
Affirmed in part; reversed in part.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but ifwill be filed for public record pursuant to RCW
2.06.040.
orsmo, C.J.
WE CONCUR:
Kulik,1.
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