Appeal from Whitman Superior Court. Docket No: 12-1-00206-6. Judge signing: Honorable John David Frazier. Judgment or order under review. Date filed: 03/22/2013.
Will M. Ferguson (of Libey & Ensley PLLC ), for appellant.
Denis P. Tracy, Prosecuting Attorney, for respondent.
Concurring: Robert E. Lawrence-Berrey, Laurel H. Siddoway.
[184 Wn.App. 794] Stephen M. Brown,
[¶1] Darin Richard Barry appeals his convictions for two counts of malicious mischief in the third degree and one count of malicious mischief in the second degree. Mr. Barry contends the trial court erred in (1) denying his motion to dismiss for discovery violations under CrR 4.7(h)(7)(i) and CrR 8.3(b), (2) denying his motion to dismiss the count III third degree malicious mischief conviction without due consideration of his request for compromise under chapter 10.22 RCW, and (3) admitting certain evidence he claims is irrelevant and prejudicial. We affirm his convictions on counts I and II for malicious mischief in the second and third degree, and remand for the trial court to consider Mr. Barry's compromise request for count III.
[¶2] In August 2012, Mr. Barry damaged three different properties by spray painting threatening language on various items and breaking a window and doors. Because his own house had been burglarized, he justified his vandalism as seeking to " put the fear" into those he believed had committed the crime. Report of Proceedings (RP) at 56, 84. Mr. Barry admitted his vandalism when confronted by officers. With Mr. Barry's consent, his confession was recorded in two parts on two different compact discs (CDs). [184 Wn.App. 795] The officers' narrative report stated the confession was recorded and summarized. Mr.
Barry was charged with one count of malicious mischief in the second degree, a felony, and two counts of malicious mischief in the third degree, a gross misdemeanor.
[¶3] Mr. Barry's two-day trial started February 20, 2013. In December 2012, Mr. Barry's attorney demanded discovery, including any recorded statements Mr. Barry had made. The narrative report and the CD of the first part of Mr. Barry's confession were sent to Mr. Barry on December 5, 2012. Mr. Barry's property damage admissions were not included. Because of a State mistake, the second CD containing Mr. Barry's confession was not provided to Mr. Barry until February 15, 2013 at 8:45 a.m.
[¶4] The discovery delivered to Mr. Barry in December 2012 included five photographs of items spray painted with the letters " KKK" (Ku Klux Klan), a business card from Eric Heise, and Mr. Heise's estimate of the cost to remove the spray paint from damaged property. The State did not disclose its witness list until 4:35 p.m. on February 19, 2013. The witness list indicated Mr. Heise and Sandy Trump would testify on the extent of damage to property and the cost to repair. Prior criminal ...