Appeal from Cowlitz Superior Court. Docket No: 10-1-01249-1. Date filed: 08/17/2011. Judge signing: Honorable Stephen M Warning.
Jordan B. McCabe, for appellant/petitioner.
Susan I. Baur, Prosecuting Attorney, and Mike Khoa Anh Nguyen and Michelle L. Shaffer, Deputies, for respondent.
AUTHOR: Thomas R. Bjorgen, J. We concur: J. Robin Hunt, P.J., Joel Penoyar, J.
[178 Wn.App. 275] Bjorgen,
¶ 1 Following a bench trial, Nick Taylor Arquette was found guilty of first degree perjury. Arquette appeals his conviction, asserting that (1) sufficient evidence did not support his conviction and (2) his conviction subjected him to double jeopardy. We consolidated Arquette's direct appeal with his personal restraint petition (PRP), in which he argues that (1) sufficient evidence did not support his previous conviction for second degree perjury following a jury trial and (2) his previous appellate counsel was ineffective for failing to challenge the sufficiency of evidence in his previous direct appeal. Holding that the State's corroborating evidence was not inconsistent with Arquette's innocence, we grant Arquette's PRP, reverse his convictions, and remand to the trial court to dismiss both charges with prejudice.
¶ 2 In March 2009, Gary McKee paid Robert Tribble $140 for a 1970 Datsun truck that, unknown to McKee, belonged [178 Wn.App. 276] to Tribble's roommate, Arquette. When Tribble failed to deliver the truck, McKee went to Tribble's home to look for him. There McKee met Arquette, who explained to McKee that he was the owner of the Datsun truck and not Tribble. The parties disagree as to what happened next.
¶ 3 According to McKee, Arquette told him that " he would give me the title ... as soon as I brought [Tribble] there, so he could tell [Tribble] to no longer come to his property." Clerk's Papers (CP) at 57. McKee stated that after he brought Tribble to Arquette's home a couple of days later, Arquette retrieved the Datsun's title from another truck, went into the house to sign it, and then handed the title to him. McKee also stated that because the truck was not in running order, he came back to the house a couple of days later to tow it away. McKee said that Arquette was present on the day he came to tow the Datsun away and that Arquette had to move another truck to provide him access to the Datsun.
¶ 4 In contrast with McKee's account of events, Arquette stated that he did not agree to turn over possession of his Datsun and that McKee became aggressive toward him. Arquette described one occasion where
McKee and McKee's brother came to his house and assaulted one of Arquette's guests. Arquette also described another occasion where McKee came to his house and asked him to move another truck to allow McKee access to the Datsun. Arquette stated that he had refused to move his truck and that he had warned McKee, " [I]f it's off my property, I'm gonna report it stolen." CP at 25. Arquette further stated that he had reported the Datsun stolen the following day when he came home from work and saw that it had been taken.
¶ 5 On March 29, 2009, Arquette called the police to report that a friend had told him the missing Datsun was " somewhere on the 200 ... block of Cypress." CP at 28. Longview police officer Charles Meadows responded to the report and found the Datsun parked in McKee's carport. When Meadows found the Datsun, he noted that the truck [178 Wn.App. 277] was parked in plain sight with the correct license plates attached and that there was no damage to the truck's ignition or locks. Meadows called Arquette to tell him that the Datsun had been located and asked Arquette to pick up the vehicle; Arquette told Meadows that he was unable to pick up the truck and that he would make arrangements to pick it up later.
¶ 6 Later that same day, McKee called the police and asked why an officer had been behind his residence looking at the Datsun. Meadows arranged to speak with McKee in person at McKee's residence. When Meadows told McKee that the Datsun had been reported stolen, McKee became upset and told Meadows that the truck belonged to him. McKee showed Meadows the title to the Datsun, which contained a signature from Arquette appearing to release Arquette's ownership interest in the truck.
¶ 7 That same day, Meadows called Arquette and asked him to come to the Longview Police Department to speak with him. Arquette agreed to meet with Meadows on April 1, but he did not show up on that date. Meadows again called Arquette on April 18 and, after he did not receive an answer, went to Arquette's residence. Meadows asked Arquette about the Datsun's title and Arquette explained that he believed the title had been taken by Tribble, his former roommate.
¶ 8 Meadows asked Arquette to fill out a police statement form and left the form with Arquette. Arquette wrote the following on the form:
[McKee] came by two or three times; one of those times I found out why he came over. He said he bought the truck off [Tribble], and then I told him it wasn't [Tribble's] to sell. Then he said that he paid a hundred and forty bucks for it, and I told him it wasn't for sale and if [he] took it off my property I was go[ing to] report it stolen, and he [sic] came home from work on a Friday, it was gone, so I reported it stolen.
[178 Wn.App. 278] CP at 14. The police form, which Arquette signed, included a provision stating, " I have read the above statement; certify and declare it to be true and correct under the penalty of perjury under the laws of the State of Washington." CP at 127. Arquette left the signed statement in the door of his house, and Meadows retrieved the statement while Arquette was away at work.
B. Procedural History
1. 2010 Second Degree Perjury Conviction and First Appeal
¶ 9 In October 2009, the State charged Arquette with two counts of second degree perjury. The first count related to Arquette's March 27 signed " Longview Police
Department Incident Report" and the second count related to his April 18 signed police statement form. The trial court dismissed the first count, and the second ...