State Of Washington, V. Shane Brown ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON,
No. 80943-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
SHANE MATHEW BROWN,
Appellant.
APPELWICK, J. — Brown appeals from a judgment and sentence for
interfering with domestic violence reporting and violation of a no-contact order.
First, he argues he was denied his right to a unanimous jury. Next, he argues the
court admitted out-of-court statements in violation of his right to confront his
accuser. Further, he argues the court erred in imposing no-contact orders for his
children. Finally, he argues the order of restitution should be vacated. We remand
for reconsideration of the no-contact orders, and otherwise affirm.
FACTS
Paula Goebel and Shane Brown have two minor children together. On
March 2, 2019, Goebel called the 911 emergency system. Goebel told the
operator, “He keeps following me!” and “Help me!” On the call recording, a male
voice can be heard saying, “Give me the phone.”
Responding officers found Goebel and her two children on the sidewalk.
She told police that before fleeing, Brown followed her, pushed her and her child
down, threatened to kill her, and stole her phone. She let them know there was an
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existing no-contact order between her and Brown. Later, medics arrived to treat
Goebel.
Police located Brown a quarter mile away. They handcuffed and searched
him, recovering one phone.
Brown was charged with interfering with the reporting of a crime of domestic
violence, robbery in the second degree, and felony violation of a no-contact order.
At trial, he testified that he was riding the bus that day when he was approached
by his children, and that an argument occurred between him and Goebel. He
exited the bus, returning to the bus stop 20 to 30 minutes later. There, he saw his
family on a bench and claimed Goebel asked to borrow his phone. When he heard
her stating her location and that he was “offending her,” he began telling her to
give him the phone. He said Goebel threw his phone to the ground, which he
retrieved before running away. He denied assaulting Goebel.
Goebel did not testify at trial. The court allowed her out-of-court statements
to be admitted via police body-worn camera footage and a recording of the 911
emergency service system call.
The jury acquitted Brown of robbery in the second degree, but found him
guilty of the other two charges. The court imposed no-contact orders for his
children. Following a restitution hearing, it also ordered him to pay Goebel
restitution for her lost cell phone.
Brown appeals.
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DISCUSSION
First, Brown argues he was denied his right to a unanimous jury. Next, he
argues the court admitted the victim’s statements in violation of his right to confront
his accuser. Third, he argues the court erred in imposing no-contact orders barring
him from any contact with his minor children for five years. Finally, he argues the
order of restitution should be vacated because it was unsupported by substantial
credible evidence.
I. Unanimous Jury
Brown argues the conviction for interfering with domestic violence reporting
violated his right to a unanimous jury. He argues substantial evidence did not
support each of the means of accomplishing the offense.
Criminal defendants have the right to a unanimous jury verdict. W ASH.
CONST. art. I, § 21; State v. Sandholm, 184 Wn.2d 726, 732, 364 P.3d 87 (2015).
In alternative means cases, where the criminal offense can be committed in more
than one way, an expression of jury unanimity is not required provided each
alternative means presented to the jury is supported by sufficient evidence. Id.But, when insufficient evidence supports one or more of the alternative means
presented to the jury, the conviction will not be affirmed. Id. We review the
sufficiency of the evidence de novo. State v. Berg, 181 Wn.2d 857, 867, 337 P.3d
310 (2014).
Interfering with the reporting of a crime of domestic violence is an alternate
means crime. See State v. Nonog, 145 Wn. App. 802, 812-13, 187 P.3d 335(2008), aff’d, 169 Wn.2d 220, 237 P.3d 250 (2010). A person may interfere with
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domestic violence reporting by committing a crime of domestic violence, and
preventing or attempting to prevent the victim from: (1) calling a 911 emergency
communication system, (2) obtaining medical assistance, or (3) making a report to
any law enforcement official. RCW 9A.36.150(a), (b). The jury was instructed on
all three means, so each must be supported by substantial evidence.
Brown argues the evidence did not support the alternative means of “calling
a 911 emergency communication system” or “obtaining medical assistance.” RCW
9A.36.150(b). He notes that Goebel successfully called 911. But, this is irrelevant,
attempt alone is criminalized under the statute. Id. The statute does not
distinguish between placing a call to 911 and continuing to carry on the
communication that was the purpose of that call. Id. And, the call evidenced
Brown’s interference. On the call, scuffling could be heard, as well as Goebel
saying, “‘Leave me alone’” and “‘[S]top following me.’” At trial, Brown admitted he
was the voice at the beginning of the call saying, “‘Give me the phone’” to Goebel.
He testified that, at least initially, she would not give him the phone. He testified
to hearing her on the phone relaying her location and that he was offending her.
The jury also heard statements from Goebel to police that Brown took the phone
and ran away. There was sufficient evidence for it to conclude Brown prevented
or attempted to prevent her from calling 911.
Next, Brown contends Goebel did not attempt to obtain medical assistance
because she did not report her injuries or directly request medical assistance to
the 911 operator. The interference statute contains no such requirement that the
communication be completed. See id. This is not surprising since the interference
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or attempted interference with the communication with 911 may prevent the victim
from doing so.
When officers contacted Goebel, they noted she was crying. The jury heard
Officer Todd Olson describe Goebel holding her hand as he approached. It was
able to observe this on police bodycam footage. It heard Goebel’s statements that
Brown had knocked her to the ground, causing injury. It heard Officer Michael
Drazio describe admitted photographs of injuries to Goebel’s right knee from being
thrown to the ground. The jury was entitled to infer from the evidence that Goebel
was prevented from communicating the injury and a request for medical
assistance. This evidence was sufficient to support Brown’s conviction for
interference by preventing or attempting to prevent a victim from seeking medical
assistance.
We hold that Brown’s right to a unanimous jury was not violated.
II. Confrontation Clause
Next, Brown argues admitting Goebel’s out-of-court statements to police
violated his right to confront his accuser.
The constitutional right of an accused person to confront witnesses against
them bars the use of out-of-court statements as a substitute for live testimony.
Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177(2004); U.S. CONST. amend. VI; CONST. art. I, § 22. The confrontation clause
forbids the use of “testimonial” out-of-court statements at trial unless the defendant
had the opportunity to confront the person who made the statement, and that
person is unavailable to testify. See Crawford, 541 U.S. at 68. We review
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confrontation clause violation claims de novo. State v. Koslowski, 166 Wn.2d 409,
417, 209 P.3d 479 (2009).
Statements are nontestimonial when made in the course of a police
interrogation under circumstances objectively indicating the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. Davis
v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
“In the end, the question is whether, in light of all the circumstances, viewed
objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-
court substitute for trial testimony.’” Ohio v. Clark, 576 U.S. 237, 245, 135 S. Ct.
2173, 192 L. Ed. 2d 306 (2015) (alteration in original) (quoting Michigan v. Bryant,
562 U.S. 344, 358, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011)).
Here, Goebel did not testify at trial. The court admitted Goebel’s statements
to police via body-worn camera footage. It excluded everything beyond the point
when officers started checking on the no-contact order and Goebel’s medical
condition, stating the inquiry transitioned from being nontestimonial and the
emergency began to dissipate.
Brown argues Goebel’s statements to police at the scene that were
admitted were testimonial. He argues they were conducted after the incident had
ended and no ongoing emergency existed.
Upon arrival, officers ask Goebel, “What’s going on?” In her 911 call,
Goebel had not communicated Brown’s criminal history or what threat level he
posed. Brown was still at large. Police did not know Brown’s identity, if he would
arrive again on the scene, or what they would encounter if they located him. Their
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questions largely centered on identifying the assailant, such as his name and
birthdate. Police were then able to run this information through their database to
ascertain “whether they would be encountering a violent felon.” Davis, 547 U.S.
at 827-28 (holding a 911 operator’s effort to identify an assailant was necessary to
enable responding officers to meet an ongoing emergency).
In Bryant, where police arrived on the scene of a shooting by an unknown
suspect, questions about “what had happened” were held to be necessary to allow
the police to “‘assess the situation, the threat to their own safety, and possible
danger to the potential victim.’” Bryant, 562 U.S. at 376 (quoting Davis, 547 U.S.,
at 832).
Viewed objectively, the primary purpose of police questioning in the
beginning of the contact was to meet an ongoing emergency. The admittance of
Goebel’s statements did not violate Brown’s Sixth Amendment right to confront his
accuser.
III. No-Contact Orders
Brown asserts the trial court erred by imposing no-contact orders for his
children without analyzing on the record the need for such orders and considering
less restrictive alternatives.
This court reviews the imposition of sentencing conditions for an abuse of
discretion. In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374, 229 P.3d 686(2010). Applying the wrong legal standard is an abuse of discretion. State v. Lord,
161 Wn.2d 276, 284, 165 P.3d 1251 (2007).
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Parents have a fundamental liberty interest in the care, custody, and control
of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982). Sentencing conditions that interfere with fundamental rights
must be reasonably necessary to achieve a compelling state interest. State v.
Ancira, 107 Wn. App. 650, 654, 27 P.3d 1246 (2001). The State concedes that
the trial court did not apply the correct legal standard in issuing the no-contact
orders. Its concession is well taken.
We remand to the sentencing court for reconsideration of the terms of the
no-contact orders.
IV. Restitution
Finally, Brown argues the order of restitution was not supported by
substantial, credible evidence. The order of restitution shall be based on easily
ascertainable damages for injury to or loss of property, actual expenses incurred
for treatment for injury to persons, and lost wages resulting from injury. RCW
9.94A.753(3). Trial courts are granted broad powers of restitution by the
legislature. State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007). Restitution
is permitted for losses that are causally connected to the crime. State v. Griffith,
164 Wn.2d 960, 965-66, 195 P.3d 506 (2008). Generally, losses are causally
connected if, but for the charged crime, the victim would not have incurred the loss.
Id. at 966. Evidence supporting restitution is sufficient if it affords a reasonable
basis for estimating loss and does not subject the trier of fact to mere speculation
or conjecture. State v. Fleming, 75 Wn. App. 270, 274-75, 877 P.2d 243 (1994),
overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct.
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2546, 165 L. Ed. 2d 466 (2006). A trial court’s restitution order will not be disturbed
on appeal absent an abuse of discretion. State v. Deskins, 180 Wn.2d 68, 77, 322
P.3d 780 (2014).
The court ordered Brown to pay restitution to Goebel in the amount of
$132.59 for her cell phone. In its order, the court,
noted the [d]efendant’s objection, i.e.[,] that the jury acquitted the
[d]efendant of the property-related offense in Count 1 (Robbery).
However, the [c]ourt overruled the objection and concluded that
based on the evidence presented at trial, there was a causal
connection between the [d]efendant’s conduct and the
disappearance of the victim’s cell phone.
That the jury acquitted Brown of robbery does not foreclose the possibility
that there was a causal connection between the loss of Goebel’s phone and the
crimes for which Brown was convicted. The jury instructions for robbery required
it to find not only that Brown took Goebel’s phone, but that he took it “against her
will with use or threatened use of immediate force, violence, or fear of injury.”
Regardless of the jury’s reasons for acquittal on robbery, the relevant question is
whether sufficient evidence demonstrated that but for Brown’s crimes of conviction,
Goebel would not have incurred the loss of her phone. See Griffith, 164 Wn.2d at
966.
The 911 call is evidence she was in possession of a phone. In her victim
impact statement, Goebel said that he “stole [her] phone and ran off.” This
matched her statements on police video admitted at trial that Goebel had taken
her phone. The jury verdict necessarily supports that he interfered with the call.
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There was sufficient evidence to conclude that Goebel’s phone was gone as a
result of Brown’s interference.
The amount of restitution was also reasonably inferred from the evidence.
Goebel signed a victim loss statement indicating her “LG G Stylo-8 GB (Boost
Mobile)” cell phone was still unrecovered property. The restitution amount came
from the State’s documentation from an online retailer showing the same phone
model valued at $194.99 and offered for a sale price of $132.59. The court did not
abuse its discretion in awarding restitution for the loss of Goebel’s phone.
We remand for reconsideration of the no-contact orders, and otherwise
affirm.
WE CONCUR:
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