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State v. Dreewes

Court of Appeals of Washington, Division 1

January 29, 2018

THE STATE OF WASHINGTON, Respondent,
v.
JENNIFER CATHRYN DREEWES, Appellant.

          SCHINDLER, J.

         A jury convicted Jennifer Cathryn Dreewes as an accomplice to the crime of burglary in the first degree while armed with a firearm and the crime of assault in the second degree with a deadly weapon of Marty Brewer-Slater. Dreewes asserts insufficient evidence supports the convictions. In the alternative, Dreewes contends the court abused its discretion by admitting Facebook messages and prosecutorial misconduct during closing argument deprived her of a fair trial. Dreewes also challenges imposition of the mandatory victim penalty and DNA[1] fees. We hold sufficient evidence supports the jury conviction as an accomplice of burglary in the first degree while armed with a firearm, the court did not abuse its discretion by admitting the Facebook messages, Dreewes cannot show prosecutorial misconduct or that a curative instruction would not have obviated any prejudicial remark during closing argument, and the court did not err by imposing mandatory fees. Overwhelming evidence supports finding Dreewes guilty as an accomplice of the crime of assault "of another" with a deadly weapon. But under the law of the case doctrine, the to-convict jury instruction required the State to prove assault in the second degree with a deadly weapon of a specific person, Marty Brewer-Slater. Because the evidence does not support finding Dreewes knew she was promoting or facilitating the specific crime of assault of Marty Brewer-Slater, we reverse the conviction. We affirm the conviction as an accomplice of burglary in the first degree but remand to dismiss the conviction as an accomplice of assault in the second degree of Marty Brewer-Slater.

         FACTS

         On January 12, 2014, Jennifer Dreewes called police to report personal property had been stolen from her truck. Marysville Police Officer Michael Buell met with Dreewes at her residence. Dreewes was "very upset." After she "calmed down, " Dreewes told Officer Buell that the property was in her truck that was parked in front of her house. Dreewes identified the stolen property, including a Samsung laptop, an Apple iPhone, personal and business checks, credit cards, and two gold rings-one with a diamond.

         The next day, Dreewes called Detective Belinda Paxton to report one of her stolen credit cards had been used. Dreewes sent Detective Paxton "a screenshot of her bank statement." Detective Paxton tried without success to obtain videotapes from the stores where the stolen credit card had been used.

         Meanwhile, Dreewes went to one of the stores where the credit card had been used. A store employee described "the person who used her card" as "a skinny white crack whore looking girl with pink hair" and a black eye. Dreewes called to give Detective Paxton the description. Dreewes told Detective Paxton that she put the "word out on Facebook® and also through [her] [nephew] and friends, " asking if anyone knew the "[s]kinny, white crackhead with pink hair."

         Michelle Thomas responded to Dreewes' Facebook post. Thomas and Dreewes were friends in high school. In 2014, Thomas was a 39-year-old unemployed single mother of two. Thomas posted a Facebook message telling Dreewes that her boyfriend Don Parrish knew "a whole lot more people" and could help identify the girl.

         On January 15, Thomas posted a Facebook message telling Dreewes she had obtained several photographs of the pink-haired girl and the girl's name was "Ness." Dreewes and Thomas talked by phone six times and exchanged over 90 text messages that day.

         On January 15 or 16, Dreewes gave Detective Paxton the "Facebook® ID[2] of Ness." Dreewes told Detective Paxton that the address in Marysville where "Ness" was staying was 10501 56th Drive Northeast. Dreewes said that a friend of her nephew Kyle Becker "said he saw [Dreewes'] things" at that house. Dreewes also provided the license plate number of an "SUV[3], a Blazer, " parked in the driveway at 10501 56th Drive Northeast and the phone number for Ness.

         Detective Paxton identified "Ness" as "Vanessa Miller" and the registered owner of the license plate for the SUV as Marty Brewer-Slater. Detective Paxton was not able to find any "link between" Ness or Vanessa Miller and Marty Brewer-Slater. Detective Paxton called the telephone number for Ness and left a voice mail message asking Ness to contact the police. Afterward, Dreewes called to tell Detective Paxton she "heard that Ness got a phone call from a detective and was going to run." Detective Paxton told Dreewes the police needed to obtain the necessary information before seeking a warrant.

         Between January 14 and January 23, Dreewes and Thomas exchanged approximately 170 Facebook messages about retrieving the stolen property and bringing the pink-haired girl to Dreewes to "bash in her face" or "use her as a pinata." Thomas did not take the exchanges seriously until Dreewes sent a Facebook message on January 17.

         On January 17, Dreewes sent a Facebook message saying she would pay Thomas and Parrish "$300 for tracking ... down" the girl with the pink hair. At approximately 9:30 p.m.[4] on January 22, Dreewes sent Thomas a Facebook message confirming that "my laptop and stuff is 100% in that house." Dreewes told Thomas she had received $1, 500 from her insurance company for the stolen items and if the police did not know she recovered her property, there would be money to pay Thomas. Dreewes texted Thomas:

If I get my laptop back but not through the cops I don't have to tell my insurance company that just paid me $1500 for it "wink wink".... If you get my laptop back and cops don't know about it I can keep the $1500 and get you some more $$.

         Thomas asked Dreewes to clarify exactly what she wanted Thomas and Parrish to do. Dreewes responded, "I want my shit.... I want her to have 2 black eyes and her to go to jail."[5] Thomas responded, "[W]e can do the shit and black eyes but jail we can't do." Dreewes told Thomas to "nab" Ness and bring her to Dreewes' barn in Arlington. Thomas asked Dreewes how many "people in the house and any weapons." Dreewes told Thomas her nephew Kyle said there would be four to five people in the house at 10501 56th Drive Northeast and "don't go there unless packing."

Recipients Michelle Thomas . . .
Jennifer Dreewes ...
Author Michelle Thomas ...
Sent 2014-01-23 06:04:20 UTC [(January 22, 2014 at 10:04 p.m. PST)]
. . . .
Body how many people in the house and any weapons?
Recipients Michelle Thomas ...
Jennifer Dreewes ...
Author Jennifer Dreewes ...
Sent 2014-01-23 06:05:27 UTC [(January 22, 2014 at 10:05 p.m. PST)]
. . . .
Body Kyle said 4-5 and yes he said don't go there unless packing.[6]

         Dreewes and Thomas exchanged 13 more Facebook messages on January 22. Dreewes and Thomas also talked to each other by phone the morning of January 22 and exchanged 10 text messages between 11:55 a.m. and 11:38 p.m. on January 22.

         At 8:06 a.m. on January 23, Thomas sent Dreewes a Facebook message. Thomas told Dreewes that she and Parrish went to 10501 56th Drive Northeast but no one answered and "all doors were locked along with available windows." Thomas said they would go back to the house later that day.

         Thomas and Parrish returned to 10501 56th Drive Northeast at approximately 1:20 p.m. Parrish carried a semiautomatic rifle under his coat. Thomas carried a pistol and duct tape and zip ties in her backpack.

         Rohen Brewer-Slater and his wife Marty Brewer-Slater had lived at 10501 56th Drive Northeast with their children for approximately 13 years. On January 23 at 1:20 p.m., two children were at school and Rohen and Marty Brewer-Slater were at home with their adult daughter Eenone Johnson-McDonell and her boyfriend James Meline.

         Parrish knocked on the door for approximately 15 minutes. Rohen did not open the door because he did not recognize Parrish or Thomas. Rohen decided to "crack the door open a little bit to ask them what they wanted." Thomas and Parrish asked if "Nessa" was there. Rohen did not recognize the name and told Parrish and Thomas the person they were looking for "w[as]n't in the home." Parrish then "shoved the muzzle of his rifle through the opening and "pushed his way" into the house. Thomas and Parrish pointed their guns at Rohen, demanded "all of the computers and laptops in the home, " and said if Rohen did not "do what they asked that they would kill me." Rohen yelled they had "picked the wrong home" and to "leave immediately." Rohen yelled "for my daughter and anybody in the home to call 911."

         Rohen's daughter Eenone and her boyfriend James heard the shouting. James ran upstairs from the basement. Thomas pointed her gun at Rohen and James. Parrish went downstairs, pointed his rifle at Eenone's face, and told her, "Give me your phone." Parrish took her cell phone and went back upstairs. Meanwhile, Marty came running from the upstairs bedroom carrying bear mace. Rohen grabbed Thomas' pistol and threw it into the fireplace in the next room. Thomas ran out the front door. Parrish hit Rohen in the face with the butt of his rifle. Parrish aimed his rifle at Marty and pulled the trigger. Because the safety was on, the gun did not fire. Marty sprayed Parrish in the face with the bear mace. Rohen, James, and Eenone tried to wrestle the rifle away from Parrish. Parrish dropped the rifle and ran. Rohen chased after Parrish. Rohen and James held Parrish until the police arrived.

         Thomas called Dreewes at 1:49 p.m. Thomas was screaming and crying. She told Dreewes that "everything went wrong.... [W]e ... went into the house, ... they had gotten my gun. They . . . had Don." Dreewes told Thomas to go to Dreewes' mother's house but [j]ust don't tell her mom why" Thomas was there and Dreewes "would be there soon." Dreewes told Thomas to "delete all the messages off [her] phone ... [o]f any sorts of conversations that her and I had." Thomas decided to contact the police.

         Detective Craig Bartl interviewed Thomas and Parrish. Detective Bartl obtained a search warrant for Thomas' cell phone records. Detective Bartl contacted Detective Paxton after learning Dreewes was involved. Detective Paxton called Dreewes. Dreewes agreed to give a recorded statement to the police.

         The interview began at 8:15 p.m. on January 23. Dreewes denied asking Thomas to retrieve the stolen property. Dreewes said her nephew Kyle Becker told her a friend of his saw the pink-haired girl at a "drug house" with Dreewes' laptop and other stolen property. Dreewes said her husband drove to the house "to get the house number." Dreewes told the police she deleted all text messages with Thomas. Dreewes said she "didn't text that much with her. Most everything is on Facebook."

         Detective Bartl obtained a warrant for the Facebook records. Facebook produced a 25-page printout of the Facebook messages between Dreewes and Thomas between January 14 and January 23, 2014.

         The State charged Dreewes as an accomplice to the crime of burglary in the first degree while armed with a firearm and the crime of assault in the second degree with a deadly weapon of Marty Brewer-Slater. The information identifies Don Raymond Parrish and Michelle Joan Thomas as codefendants.

         The affidavit of probable cause states Parrish and Thomas agreed to retrieve Dreewes' stolen property. Dreewes "told them that her stolen credit card, laptop, and phone were inside the residence and provided them with the address." Parrish admitted he was armed with a " 'big gun'" and Thomas with a " 'small gun'" and they forced their way into the house. The affidavit states Thomas gave Detective Bartl a recorded statement.

Thomas provided a recorded statement after being advised again of her constitutional rights. Thomas stated that she and her boyfriend Parrish drove to the victims' residence to help Jennifer Dreewes recover a laptop, phone, and credit card stolen from Dreewes during a vehicle prowl. Thomas stated that Dreewes offered her $300 to get the stolen items back. Thomas said she sent Dreewes a text message upon arriving at the residence that said "in the neighborhood" in addition to other text messages sent earlier in the day. Thomas said Dreewes provided information about Vanessa and that Dreewes kept telling her that she needed the laptop.
Thomas stated that they were looking for a girl named Ness or Vanessa. Thomas said they parked their vehicle around the corner from the house and walked to the house. Parrish was armed with the rifle connected to a harness hidden under his brown zip up jacket. Thomas was armed with the little chrome handgun with a pearl handle. Thomas stated that after knocking on the door, it was eventually opened by the male homeowner who told them that there was no one with the name of Ness at the residence. Thomas stated that she told Parrish "let's go."

         A number of witnesses testified at trial, including the detectives, a firearms expert, Michelle Thomas, Rohen Brewer-Slater, and Marty Brewer-Slater. The court admitted into evidence over 60 exhibits, including Facebook and phone records, the 911 call, the videotaped interview with Dreewes, and a videotaped demonstration of a detective firing the pistol and the semiautomatic rifle.

         Michelle Thomas testified that she communicated with Dreewes through Facebook messages, cell phone calls, and text messaging. Dreewes described the girl that stole property from her truck on Facebook as a "[s]kinny, white crackhead with pink hair" and asked if anyone knew her. Thomas "obtained a partial name and some pictures and ... sent them" to Dreewes.

         Thomas testified that at first, she and Dreewes talked about "giving [the pink-haired girl] a black eye and ... hurting her, " but "we were just joking around. Ha-ha, making light of the deal. Figuring that the detectives or whoever was on the case would finally eventually get it." But after Dreewes "offered $300 for us to find her and get her belongings back, that's when I was, like, Oh, wow, she's serious about it." Thomas said that as a single mother of two, she would do "[w]hatever I had to do" for the money.

         Dreewes told Thomas her nephew Kyle was "absolutely positive that her belongings were in the house" across the street from the Marysville Pilchuck High School. Thomas testified that she told Dreewes, "We need to know exactly what you want done, because once we get there, ... you cannot change your plans." Dreewes gave Thomas the address of the house and said, "My nephew says my laptop and stuff is 100% in that house." Thomas confirmed whether "all she wanted was her stuff back." Dreewes told Thomas she "wants her stuff, and she wanted [the pink-haired girl] to have two black eyes and to go to jail." Dreewes told Thomas to retrieve her belongings, give the girl "[b]lack eyes[, ] and bring her to my barn" in Arlington.

          Thomas asked Dreewes to confirm the address and "wanted to know how many people were in the home" and "if there was any sort of weapons."

I had to ask her where the location was. We needed the address. We wanted to know how many people were in the home, if there was any sort of weapons, before we attempted to go to the home.
Q Why was it important to know if - the number of people in the home and whether or not there were any weapons in the home before you attempted to go to the home?
A We needed to know how many people were in the home so we know how many people we were going up against to see if it was even worth going in. Because if there was too many, we were going to call it off.
Weapons, we would just bring our own.
Q If there were weapons there, you would bring your own?
A Yep.

         Dreewes confirmed the address was 10501 56th Drive Northeast and told Thomas that "there was four to five people in the house, and that we should not go unless we had weapons."

         Thomas took a handgun and a backpack with duct tape and zip ties to use to bring the pink-haired girl to Dreewes' barn. Parrish was armed with a semiautomatic rifle. Before reaching the house, Thomas sent a text to Dreewes telling her "it was a huge neighborhood, and there were tons of people around." Dreewes "told us to [j]ust nab her and run."

         Thomas testified that when a man answered the door, he told them, "Nobody's here by that name." When he starts to shut the door, Parrish "pushes the door back open." Thomas testified she and Parrish went inside with their "guns drawn" and shut the door. Thomas said that after the man knocked the gun out of her hand, she opened the door and "took off running." Thomas called Dreewes. Dreewes "told me to go to her mom's house and hide out" but "[j]ust don't tell her mom why I was sitting there and waiting and that she would be there soon." Dreewes told Thomas to "delete all messages ... [o]f any sorts of conversations that her and I had."

         On cross-examination, Thomas said she pleaded guilty to burglary in the first degree and assault in the second degree with a firearm and "agreed to testify .. . truthfully" at trial. Thomas testified that in January 2014, she was using illegal drugs and during some of the conversations with Dreewes, she was "intoxicated on illegal drugs."

         The Sprint records showed that between January 14 and January 23, Dreewes and Thomas exchanged 183 cell phone calls and text messages.[7] The Sprint records also showed that approximately an hour before Thomas and Parrish used guns to force their way into the Brewer-Slater home at 1:20 p.m. on January 23, Thomas called Dreewes, and that Dreewes sent a text message to Thomas at 1:46 p.m.

         Without objection, a detective read portions of a printout of text messages between Thomas and Parrish to the jury. At approximately 2:00 p.m. on January 22, Thomas tells Parrish she has the address and "[t]ake the gun with you."

Michelle responds [to Parrish].... If you want the address, I... have it. Take the gun with you.
Mr. Parrish responds back within a minute, Give to me.
And then Michelle sends out, couple minutes later, ... 56th Drive East Marysville, older Durango in the driveway. There are four to five people inside, all are packing....
Then Mr. Parrish responds a couple minutes later, Where did you ... get info from? Reliable?
Michelle responds, Yes. Jen's nephew was there.
Mr. Parrish responds, couple minutes later, 500 still on the table?
And response back to that is, $300 .... If police don't find out she got it back, she'll throw in extra.

         By stipulation, the court also admitted a recording of a jail telephone conversation between Dreewes and an unidentified male. During the call, Dreewes asks the unidentified male to access her Facebook account and delete all messages with Thomas.

         Rohen Brewer-Slater testified that he works in the aerospace industry. Rohen said that in January 2014, the family invited a homeless girl to spend the night at the house. Rohen ...


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