Argued September 17, 2013.
[Copyrighted Material Omitted]
Appeal from Skagit County Superior Court. 09-1-01042-0. Honorable Dave Needy.
Nancy P. Collins (of Washington Appellate Project ), for petitioner.
Richard A. Weyrich, Prosecuting Attorney, and Erik Pedersen, Deputy, for respondent.
AUTHOR: Justice Charles K. Wiggins. WE CONCUR: Chief Justice Barbara A. Madsen, result only, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Debra L. Stephens, Justice Steven C. Gonzá lez, Justice Sheryl Gordon McCloud.
[179 Wn.2d 832] ¶ 1 Phillip Garcia Jr. challenges his convictions for kidnapping in the first degree, burglary in the second degree, and criminal trespass in the first degree. He argues that that there is insufficient evidence to support each of the alternative means of kidnapping presented to the jury, that the trial court violated his confrontation rights by limiting his cross-examination of an adverse witness, that the trial court erroneously admitted evidence of a prior crime of dishonesty, and that
the prosecutor incorrectly defined " burglary" during closing arguments.
¶ 2 We reverse Garcia's convictions for kidnapping in the first degree because there is insufficient evidence to support each of the alternative means of kidnapping presented to the jury. We reverse his conviction for burglary in the second degree because of prejudicial trial error. We affirm his conviction for criminal trespass in the first degree because the errors were not prejudicial as to that conviction.
¶ 3 On June 6, 2010, Garcia was convicted of burglary in the second degree, criminal trespass in the first degree, and kidnapping in the first degree with a deadly weapon enhancement. The convictions were based on the following testimony:
¶ 4 In the early morning of December 24, 2009, Garcia was cut off by three cars while driving near Sedro-Woolley. He heard two gunshots coming from the cars. Believing that the people in the cars were chasing him, he tried to escape. In the process, he hit a railway track, and the car became [179 Wn.2d 833] stuck. Garcia abandoned the car and a passenger on the tracks and ran. Eventually, he made it to a nearby Valero gas station. He testified that he thought the gas station would be open and that he could ask for help. However, the gas station's doors were locked. After trying to kick the doors open, Garcia picked up a cinder block and broke the glass door. Surveillance cameras showed him entering the store, turning around, and walking out, without going near the cash register or causing other property damage inside. Garcia testified that he walked out of the gas station after hearing an alarm because he had outstanding warrants and did not want to go to jail.
¶ 5 After leaving the gas station, he tried knocking on the door of a nearby house. The occupant would not open the door but spoke with him briefly through the door. Garcia told her that he needed help and that people were trying to kill him. When the occupant told him that she would call 911 but would not open the door, Garcia left.
¶ 6 He next ran to a mobile home park where Juliana Wilkins happened to be asleep on the sofa of her late father's home. Garcia saw the television on and entered the trailer through an unlocked door. It was 3:55 a.m. when Garcia tapped Wilkins on her upper thigh to wake her up. She had never seen Garcia before these events.
¶ 7 Garcia remained with Wilkins in the mobile home for around two hours. She testified that during that time he " was extremely agitated," on " an adrenaline rush, very jumpy and out of breath." She also testified that his " behavior was very unpredictable."
¶ 8 The timeline of what happened inside the mobile home is not clear. There was testimony that Garcia sat in a chair five or six feet away from where Wilkins sat on the couch and the two talked. He explained his situation to Wilkins and asked her to give him a ride. She declined. He also made numerous telephone calls, trying to find someone else to pick him up. At some point during the two hours, Garcia grabbed a knife from the kitchen. He briefly held the [179 Wn.2d 834] knife two feet away from Wilkins. Otherwise, he kept the knife in his pocket. At trial, he explained that the knife was to protect himself and Wilkins from the people Garcia believed were after him.
¶ 9 During their conversations, they talked about their families, and Wilkins gave him advice. She told him that she had 10 children and hoped to go home to them. She testified that she desired to keep the situation calm, while Garcia testified that he felt like Wilkins was helping him and tagging along.
¶ 10 At one point, Garcia decided to leave without having found a ride. Wilkins walked him to the door and gave him a necklace with religious significance. Garcia, however, returned within moments. Eventually, he was able to find a friend who agreed to pick him up. This friend talked with Wilkins on the phone to get directions. As Garcia was leaving, he offered to give Wilkins back the necklace. She declined and hugged Garcia.
¶ 11 Wilkins testified that she was very, very terrified during the event. She believed
that she might be killed, and her fear did not decline while Garcia was in the residence.
¶ 12 Before trial, the State filed a motion in limine to have all statements made by Garcia to others excluded as hearsay. The prosecutor argued that they were being offered to prove the truth of the matter asserted, and argued at multiple times that Garcia was trying to get the statements into evidence without taking the stand. Defense counsel countered that the statements were necessary to give a complete picture of what happened in the mobile home and were important for determining Garcia's intent. The judge did not make a firm ruling as to the statements but said he would consider them objection by objection.
¶ 13 During trial, the court allowed the jury to know that Garcia had previously been convicted of felonies of dishonesty. The prosecutor used statements in a police report to establish that a previous burglary conviction involved intent [179 Wn.2d 835] to commit theft. During the prosecutor's closing argument, he told the jury that Garcia was guilty of burglary in the second degree if he intended to commit malicious mischief while throwing a cinder block into the Valero gas station.
¶ 14 Following the jury trial, Garcia was sentenced to 173 months of confinement. The Court of Appeals affirmed the convictions.
¶ 15 Garcia's kidnapping in the first degree and burglary in the second degree convictions are reversed and remanded for a new trial consistent with this opinion. The kidnapping conviction is reversed because there is insufficient evidence to support each of the three alternative means presented to the jury. The Court of Appeals also misinterpreted and misapplied the statutory elements of kidnapping in the first degree. The burglary conviction is reversed ...