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State v. Pinkney

Court of Appeals of Washington, Division 2

February 21, 2018

STATE OF WASHINGTON, Respondent,
v.
GARY PINKNEY, Appellant.

          Bjorgen, C.J.

         Gary Pinkney appeals from his misdemeanor harassment conviction asserting that (1) the State failed to present sufficient evidence in support of the conviction, (2) the prosecutor committed misconduct at closing argument by misstating the law to the jury, and (3) the State failed to support the corpus delicti of the crime with evidence independent of his confession.[1] We affirm.

         FACTS

         On November 7, 2015, Pinkney was living with his ex-wife, Jill Clark-Pinkney, in her home. The two had dissolved their marriage in 2008, but Pinkney had moved into Clark- Pinkney's home in 2013 after he began experiencing issues with his health. In 2014 Clark-Pinkney encouraged Pinkney to move from the house.

         On the morning of November 7, Pinkney and Clark-Pinkney began arguing. Clark-Pinkney asked Pinkney to leave the living room where he had been sleeping on the couch so that she could do some work. Pinkney refused to leave the room. When Pinkney later left the room to let his dog in the house, Clark-Pinkney sat on the couch where he had been sleeping. Pinkney became angry, started cursing at Clark-Pinkney, and went to his bedroom. Pinkney called a Veterans Affairs (VA) crisis hotline.

         After about an hour, Clark-Pinkney believed Pinkney had fallen asleep, and she turned off the lights in his bedroom. Pinkney was still speaking to someone at the VA crisis hotline and yelled, "She just came in here and turned the lights off on me." Verbatim Report of Proceedings (VRP) (May 18, 2016) at 123. Pinkney believed that Clark-Pinkney knew he was still speaking on the phone when she turned off his lights. Clark-Pinkney and Pinkney dispute what happened next.

         According to Clark-Pinkney, she heard Pinkney tell someone on the phone, "I am going to kill her. I am going to kill her." VRP (May 18, 2016) at 125. Pinkney then ran out of his room, screamed at Clark-Pinkney and yelled, "I am going to kill you." VRP (May 18, 2016) at 125. Pinkney also told Clark-Pinkney, "I'm going to punch you in the face. I am going to put my hands around your neck, and this time I am going to kill you." VRP (May 18, 2016) at 127. Clark-Pinkney grabbed her phone, called Pinkney's daughter, and locked herself in a bathroom.

         Pinkney admitted that he had a confrontation with Clark-Pinkney in the kitchen but denied that he had said anything to her. Pinkney stated that he had only clenched his fist near Clark-Pinkney's face and growled at her.

         After receiving a call from the VA crisis hotline operator, Tacoma police officers arrived at the home to perform a welfare check on Pinkney. Pinkney told Officer Leah Mixon that "he was at his wit's end with his ex-wife" and that he "was afraid he might kill her." VRP (May 18, 2016) at 88. After Officer Danilo Bambico spoke with Clark-Pinkney, the officers arrested Pinkney.

         The State charged Pinkney with one count of felony harassment based on a threat to kill. The matter proceeded to a jury trial. At trial, witnesses testified consistently with the facts as stated above. Additionally, Clark-Pinkney and Pinkney both testified about a 1998 incident in which Pinkney had been intoxicated, grabbed Clark-Pinkney by the neck, and threw her to the ground. The trial court instructed the jury on the lesser-included offense of misdemeanor harassment based on a threat of bodily injury.

         On the lesser-included harassment charge, the State argued the following at closing:

If you don't find felony harassment, you are asked to consider the crime of harassment. The only difference, and you can look at the elements, is instead of a threat to kill, was a threat to cause bodily injury. That act alone, where the defendant is in that kitchen with his fist in Ms. Clark-Pinkney's face, is conduct that is a threat that is putting her in fear of physical harm.

RP (May 19, 2016) at 148-49.

         The jury did not reach a verdict regarding the felony harassment charge and returned a verdict finding Pinkney guilty of the lesser-included harassment charge. The jury also returned a special verdict finding that Pinkney and Clark-Pinkney were members of the same family or household ...


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