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                                                                                                        D l " l' S I O I II

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                                                                                                 B




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II


STATE OF WASHINGTON,                                                               No. 42546 -7 -II


                                       Respondent,                                  Consolidated)


       V.

                                                                            PUBLISHED OPINION
NICK TAYLOR ARQUETTE,




                                                                                   No. 42974 -8 -II
In re the Personal Restraint Petition of,


NICK TAYLOR ARQUETTE,


                                       Petitioner.




       BJORGEN, J. —            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
No. 42546 -7 -II (Cons. With
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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.

                                                        FACTS
A.      Background


        In March 2009,      Gary   McKee       paid   Robert Tribble $ 140 for a 1970 Datsun truck that,


unknown to McKee, belonged 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.


        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.


        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




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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.

         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 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.

         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.

         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
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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.




            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 you [ take] 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.

                 1
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.




1
  The record on appeal does not contain a copy of Arquette' s signed police statement form and,
instead, only contains testimony paraphrasing the statement. At trial, Longview Police Officer
Meadows provided a similar, but not identical, description of Arquette' s signed statement:
     That a person, [ McKee], came by two or three times. One of the times, I found
            out       why he    was     coming by. He said that he bought a truck off [Tribble], then I
            told       him it   was     not [ Tribble' s] to sell, it was my truck. Then he said he had
            already paid for it, and, in parentheses he says a hundred and forty dollars, and he
            was going to take the truck. Then I told him if you take the truck, I will report the
            truck stolen.

                  Then, on Thursday night, after I got off work and came home, he was here
            to            truck that was his. On Friday evening when I came home from
                     get another

            work my truck was gone, and I filed a police report on my truck.
CP at 127 -28.


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B.     Procedural


       1.   2010 Second Degree Perjury Conviction and First Appeal

       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,2 and the second count was tried to a jury on May 5, 2010.

       At Arquette' s jury trial, McKee testified as stated above. The State also called Doyle

Ash, who testified that he went with McKee and McKee' s brother to Arquette' s home to help

tow away the Datsun. Ash stated that Arquette moved his truck to allow McKee access to the

Datsun without incident. However, on cross examination Ash admitted that he did not clearly

see Arquette on the day he helped to tow the Datsun and that he had been unable to identify

Arquette in a photograph lineup when questioned by police.

       Arquette testified that he had signed the Datsun' s title on March 11, 2009, the day he

received the title from United Finance after making his final payment for the truck. Arquette

stated that he signed the title in anticipation of a pending sale to an individual in Kelso,

Washington. Arquette further stated that he had placed the title on a dresser and that he


suspected that Tribble had taken the title along with some of his other possessions.

       Defense witness Greg Rupert testified that he was at Arquette' s home when two men

showed up and told Arquette that they were going to pick up the Datsun. Rupert stated that he

heard Arquette tell the   men, " I'   ll   call   the   cops   if you take it." CP   at   155.   Defense witness




2 The record does not state the trial court' s reasons for dismissing the first count.
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    Christopher Hawkins testified that he was at Arquette' s home when McKee and McKee' s


    brother came over and demanded possession of the Datsun. Hawkins stated that McKee was


    aggressive and that Arquette told McKee that the truck was not Tribble' s to sell. Hawkins also


    stated that he heard Arquette tell McKee that he would call the cops if McKee hauled the truck


    away. The jury returned a verdict finding Arquette guilty of second degree perjury.

           Arquette appealed his conviction to our court, asserting that " one of the trial court' s jury

    instructions   incorrectly   stated   the law     and   lowered the burden     of proof   for perjury." State v.


    Arquette, 162 Wn. App. 1025, 2011 WL 2464682 at * 1 ( Wash. App. Div 2) .3 His direct appeal
    did not challenge the sufficiency of evidence used to convict him of second degree perjury. On

    June 21, 2011, we affirmed Arquette' s second degree perjury conviction in an unpublished

    decision. Arquette, 162 Wn. App. 1025.

            2. New 2011 First Degree Perjury Bench Trial Conviction and Direct Appeal

            On December 10, 2010, while Arquette' s appeal was still pending, the State filed a new

    charge alleging that Arquette had committed first degree perjury based on his testimony at his

1   2010 trial on the second degree perjury charge. Arquette waived his jury trial right on the new

    perjury charge and agreed to a bench trial. Arquette stipulated that he had

    signed the title to the Datsun and that he had knowingly made the statements contained in his

    2010 trial testimony. After reviewing a video of Arquette' s 2010 trial and hearing arguments




    3 " This court may rely on unpublished opinions as evidence of the facts established in earlier
    proceedings    in the   same case or    in   a   different   case   involving the   same parties."   Martin v.

    Wilbert, 162 Wn. App. 90, 93 n. 1, 253 P. 3d 108, review denied, 172 Wn.2d 1002, 268 P. 3d 941
    2011) ( citing Island County v. Mackie, 36 Wn. App. 391 n.3, 675 P. 2d 607 ( 1984)).
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from counsel, the trial court found Arquette guilty of first degree perjury. Arquette timely

appealed this first degree bench trial perjury conviction on grounds that sufficient evidence did

not support the conviction and that the conviction constituted double jeopardy.

         3.   PRP Challenge to 2010 Perjury Conviction; Consolidation with Direct Appeal of 2011

Conviction


         On January 17, 2012, Arquette filed a PRP challenging his 2010 second degree jury trial

perjury conviction on the grounds that sufficient evidence did not support the conviction and that

his appellate counsel was ineffective for failing to raise a sufficiency challenge in his direct

appeal. We consolidated Arquette' s PRP with his direct appeal of his new conviction and


remanded to the Cowlitz County Superior Court for entry of findings of fact and conclusions of

law   as required under   CrR 6. 1( d).   The trial court entered its findings and conclusions on July 18,

2012. We now address Arquette' s PRP challenge to his 2010 second degree perjury conviction

and.his direct appeal of his 2011 first degree perjury conviction.

                                                   ANALYSIS


                  I. PRP CHALLENGING 2010 SECOND DEGREE PERJURY CONVICTION


         In his timely consolidated PRP, Arquette contends that sufficient evidence did not

support his 2010 second degree perjury conviction. We agree, grant Arquette' s PRP, and vacate

his second degree perjury conviction. In light of the policy underlying the heightened standard

of proof to support perjury convictions, we hold that to support a perjury conviction the

independent corroborating evidence must be inconsistent with the defendant' s innocence.




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          To obtain relief by means of a PRP, Arquette must establish either ( 1) constitutional error

that caused actual and substantial prejudice to his case or ( 2) nonconstitutional error that caused


a fundamental defect resulting in a complete miscarriage of justice. In re Pers. Restraint of

Cook, 114 Wn.2d 802, 810 -13, 792 P. 2d 506 ( 1990). Here, Arquette alleges a constitutional


error, asserting that the State failed to present sufficient evidence to support his second degree

perjury conviction. See In re Pers. Restraint ofMartinez, 171 Wn.2d 354, 364, 256 P. 3d 277

 2011) ( " A conviction based on insufficient evidence contravenes the due process clause of the


Fourteenth Amendment           and    thus   results   in   unlawful restraint. ") (   citing Jackson v. Virginia, 443

U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 ( 1979); RAP 16. 4( c)( 2)).


           Sufficient evidence exists to support a conviction if any rational trier of fact could find

the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the

light   most   favorable to the State. State       v.   Hosier, 157 Wn.2d 1, 8, 133 P. 3d 936 ( 2006). A


defendant claiming insufficiency of the evidence admits the truth of the State' s evidence and all

inferences that reasonably          can   be drawn from the        evidence.   4 State v. Salinas, 119 Wn.2d 192,




4
    Arquette asserts in his opening brief that " the general rule that a sufficiency challenge admits
the truth of the State' s evidence and all reasonable inferences such that the evidence is viewed in
the light most favorable to the State simply does not apply" in an appeal from a perjury
conviction,     citing State   v.   Olson, 92 Wn. 2d 134, 135 -36, 594 P. 2d 1337 ( 1979). Br. of Appellant
at 18. This is a misstatement of the law that ignores the following language in the Olson
opinion: "     A challenge to the sufficiency of the evidence admits the truth of the opposing party' s
evidence and all inferences which reasonably may be drawn from such evidence, and requires
that the   evidence     be interpreted in the light         most   favorable to that party."    Olson, 92 Wn.2d at
135 -36.
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201, 829 P. 2d 1068 ( 1992).             Circumstantial evidence and direct evidence are equally reliable.

State   v.   Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). We defer to the trier of fact on


issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.

State v. Walton, 64 Wn. App. 410, 415 -16, 824 P. 2d 533 ( 1992).

             RCW 9A.72. 030( 1) provides:


             A person is guilty of perjury in the second degree if, in an examination under oath
             under the terms of a contract of insurance, or with intent to mislead a public
             servant in the performance of his or her duty, he or she makes a materially false
             statement, which he or she knows to be false under an oath required or authorized
             by law.

             The requirements of proof in perjury cases are the strictest known to law, outside of

treason.       State   v.   Olson, 92 Wn.2d 134, 136, 594 P. 2d 1337 ( 1979).                   In addition to the above


elements, the State must present:


                     1. the testimony of at least one credible witness which is positive and
             directly contradictory of the defendant' s oath; and
                     2. another such direct witness or independent evidence of corroborating
             circumstances of such a character as clearly to turn the scale and overcome the
             oath of the defendant and the legal presumption of his innocence.


Olson, 92 Wn.2d             at   136 ( emphasis     added).     The direct testimony required to support a perjury

conviction " must come ` from someone in a position to know of his or her own experience that

the   facts   sworn    to   by    defendant   are   false. "'   State v. Singh, 167 Wn. App. 971, 976, 275 P. 3d

1156 ( 2012) ( quoting Nessman                v.   Sumpter, 27 Wn.       App.   18, 24, 615 P. 2d 522 ( 1980)).   The


unique heightened standard of proof to support perjury convictions " reflects the underlying

policy in Anglo- American jurisprudence of encouraging witnesses to testify freely without fear

of reprisals."     Nessman, 27 Wn.            App.     at   23 -24 ( citing 7 J. WIGMORE, EVIDENCE, §§ 2032 at 324,


2041 at 361 ( 1978)).



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       In asserting that the State failed to meet its burden to prove second degree perjury,

Arquette does not contend that the State failed to present evidence in support of the essential


elements of the charge as set forth in RCW 9A.72. 030. Instead, Arquette argues that the State


failed to meet its heightened burden of proof for a perjury conviction by failing to present the

testimony of two credible direct witnesses or a credible direct witness and sufficient

corroborating evidence.


       In response, the State first asserts that it met its burden by presenting the testimony of a

direct witness, McKee, and a second direct witness, Ash. In his testimony, McKee stated that

Arquette agreed to turn over possession of the Datsun, gave him the signed title, and assisted him


in removing the Datsun from Arquette' s property. McKee' s testimony thus directly contradicted

Arquette' s signed statement to the police that his Datsun had been stolen. Accordingly, the State

met its evidentiary burden of presenting " the testimony of at least one credible witness which is

positive and   directly   contradictory   of   the defendant'   s oath."   Olson, 92 Wn.2d at 136.


       However, nothing contained in Ash' s testimony directly contradicted Arquette' s signed

police statement and, thus, is insufficient to sustain Arquette' s second degree perjury conviction.

Although Ash testified consistently with McKee, he was unable to positively identify Arquette as

the person present at Ash' s home when McKee took possession of the Datsun pickup truck.

Moreover, Ash had no direct knowledge of the circumstances surrounding the conflict over




  Although Arquette appears to concede in his PRP that the State presented sufficient evidence of
one credible witness in the form of McKee' s testimony, his supplemental brief addressing the
trial court' s findings and conclusions asserts that McKee' s testimony did " not constitute the
requisite ` directly contradictory testimony. "' See PRP at 7; Suppl. Br. of Appellant at 5.

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ownership      of   the Datsun        and,    thus,   was not "`   in   a position   to know   of   his ...   own experience




that the   facts    sworn   to   by [ Arquette         were]   false. "'     See Singh, 167 Wn. App. at 976 ( quoting

Nessman, 27 Wn.            App.   at   24).    Because Ash' s direct testimony was insufficient to support the

State' s heightened burden of proof in a second degree perjury conviction, we turn to whether the

State presented sufficient " independent evidence of corroborating circumstances of such a

character as clearly to turn the scale and overcome [ Arquette' s oath] and the legal presumption

of   his innocence."        Olson, 92 Wn.2d at 136.


           At the outset of our analysis, we note that there is scant Washington law discussing the

standard by which corroborating evidence may support a perjury conviction. More to the point,

there is no Washington case that squarely addresses whether such independent corroborating

evidence must merely support the direct witness' s testimony in any manner or whether such

evidence must also be inconsistent with the innocence of the defendant.

           In State v. Rutledge, our Supreme Court noted that such corroborating evidence " need not

equal   in   weight   the   testimony         of a second witness."           37 Wash. 523, 527, 79 P. 1123 ( 1905). The


corroborating        evidence,        though, "`      must be clear and positive and so strong that, with the

evidence of the witness who testifies directly to be the falsity of the defendant' s testimony, it will

convince     the    jury   beyond      a reasonable       doubt. "'     Rutledge, 37 Wash. at 527 ( quoting H.C.

UNDERHILL, CRIMINAL EVIDENCE § 468); 7 WHARTON' S CRIMINAL EVIDENCE § 387 ( 9th ed.).


Additionally, in State           v.   Buchanan,        our   Supreme Court held, " Admissions             and contradictory

statements of the defendant, even though not made under oath, are sufficient, given in


corroboration of the single witness to satisfy the quantum of evidence required to support a

conviction of       perjury."         79 Wn.2d 740, 745, 489 P. 2d 744 ( 1971) (               citing United States v


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Goldberg,     290 F. 2d 729, 733, 744 ( 2d Cir. 1961);             People v. Sagehorn, 140 Cal. App.2d 138, 294

P. 2d 1062 ( 1956); 70 C. J. S. PERJURY § 70c( 3),            at   541 ( 1951); 41 Am. JUR. PERJURY § 69, at 38


 1942)).    With sparse Washington case law on the issue, we examine also several federal cases


addressing the nature of independent corroborating evidence to support a perjury conviction.

         In United States v. Neff, 212 F.2d 297, 306 -07 ( 3d Cir. 1954), the Third Circuit Court of

Appeals noted,


         To sustain a conviction for perjury the evidence must be strong, clear, convincing
         and direct. Where the government seeks to establish perjury by the testimony of

         one witness and cor[ r] oborating evidence, the latter must be independent of the
         former and inconsistent with the innocence of the defendant.


 Internal footnotes      omitted.)   Citing to Neff, the Fifth Circuit Court of Appeals has similarly held

that   independent corroborating       evidence     in   support of a    perjury   conviction must       be "` inconsistent


with   the innocence     of   the defendant. "'   Paternostro v. United States, 311 F. 2d 298, 308 ( 5th Cir.


1962),   abrogated on other grounds by Brogan v. United States, 522 U.S. 398, 118 S. Ct. 805,

139 L. Ed. 2d 830 ( 1998). In United States              v.   Buckner, 118 F. 2d 468, 469 ( 2d Cir. 1941), the


Second Circuit Court of Appeals also endorsed the requirement that independent corroborating

evidence be inconsistent with the defendant' s innocence to support a perjury conviction, but has

since clarified



           the ...   rule requiring that the independent corroborating evidence be ` inconsistent
           with the innocence of the defendant' to mean no more than that such evidence
           must tend to substantiate that part of the testimony of the principal prosecution
           witness which is material in showing that the statement made by the accused
           under oath was false.


United States v. Weiner, 479 F. 2d 923, 927 -28 ( 2d Cir. 1973).


           The remaining federal circuit courts addressing this issue are split on the nature of the

required     corroborating     evidence   to   support a   perjury    conviction.   See,   e. g.,   United States v.


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Erhardt, 381 F.2d 173, 174 ( 6th Cir. 1967) ( " This              court has held that to support a perjury

conviction the testimony of a single witness must be corroborated by circumstances inconsistent

with   the innocence   of   the   accused. ");   Arena v. United States, 226 F.2d 227, 236 ( 9th Cir. 1955)


  It is sufficient if the corroborating evidence tends to establish the defendant' s guilt and if such

evidence together with the direct evidence is ` inconsistent with the innocence of the


defendant. "'); Brightman         v.   United States, 3 86 F. 2d 695 ( 1 st Cir. 1967) (    adopting test in Arena).

         Following Neff and cases in accord with Neff,we hold that when the State relies on

independent corroborating evidence together with the testimony of a direct witness to support a

perjury conviction, such corroborating evidence must be inconsistent with the defendant' s

innocence. To hold otherwise would risk sustaining a perjury conviction merely upon the

testimony of a single witness, uncorroborated by any other witness' s testimony or by evidence of

circumstances inconsistent with the defendant' s innocence. Such a result diminishes the


heightened standard of proof required for a perjury conviction and contravenes the well-

established. rule that " the uncorroborated oath of one witness is not enough to establish the falsity

of the testimony of the accused" in a prosecution for perjury. Hammer v. United States 271 U.S.

620, 626, 46 S. Ct. 603, 70 L. Ed. 1118 ( 1926).


         Having determined that corroborating evidence must be inconsistent with the innocence

of the defendant to support a perjury conviction, we turn to evidence presented in this case. The

State argues that the following facts were sufficient to meet the independent corroborating

evidence standard: (    1) McKee'         s possession of   the    signed   title to the Datsun, ( 2)   the manner in


which    the Datsun   was stored        in McKee'   s carport, (   3) McKee' s inquiry to the police asking why

an officer was looking at the Datsun, and ( 4) Arquette' s conduct in failing to retrieve the Datsun


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after Meadows informed him that it had been located. Although this evidence corroborated


McKee' s testimony that Arquette freely turned over possession of the Datsun to him, it was also

not inconsistent with Arquette' s innocence and is thus insufficient to support his second degree


perjury conviction.


       The statement upon which the State relied to prosecute Arquette for second degree


perjury provided:


        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 you 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.


CP at 14. The manner in which the Datsun was stored and McKee' s inquiry into why the police

were looking at the vehicle do tend to show that McKee believed he rightfully had possession of

the truck. However, this evidence was also consistent with Arquette' s police statement, in which

he stated that McKee believed he had purchased the vehicle from Tribble despite Arquette' s


claims that the truck belonged to him. Similarly, evidence related to the signed vehicle title was

not inconsistent. with Arquette' s innocence because he maintained that he had previously signed

the title in anticipation of a sale to someone else and that the title had been taken from his room,


likely by Tribble. Finally, evidence of Arquette' s failure to immediately retrieve the vehicle was

also not inconsistent with his innocence because the evidence at trial showed that the vehicle was


not in running order and would be a burden to retrieve given Arquette' s work schedule and the

relatively low value of the vehicle. Because the State' s corroborating evidence was not

inconsistent with Arquette' s innocence, it was insufficient to support his second degree perjury

conviction. Accordingly, we grant Arquette' s PRP; vacate his 2010 second degree perjury

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conviction, and remand to the trial court to dismiss the 2009 second degree perjury charge with
             6
prejudice.




                 H. DIRECT APPEAL OF 2011 FIRST DEGREE PERJURY CONVICTION


         Next, Arquette contends that sufficient evidence does not support his 2011 conviction for


first degree perjury. For the reasons stated in our above analysis, we agree and vacate his first

degree perjury conviction as well.

         The basis for the State' s charges against Arquette for first degree perjury arose from the

following sworn testimony at his first trial, to which Arquette stipulated at his second trial that he

had knowingly made:

          Defense     counsel]:   Did you read through [ the stolen vehicle waiver] before you
         signed it?
          Arquette] : Yeah.
          Defense   counsel]:     And you signed it?
          Arquette]:    Yeah.
          Defense   counsel]:     Freely and voluntarily?
          Arquette] : Yeah.
          Defense   counsel]:  Why.is that?
          Arquette]:    Because my truck was stolen.

CP at 13 - 14.


         RCW 9A. 72. 020( 1)      provides, "   A person is guilty of perjury in the first degree if in any

official proceeding he or she makes a materially false statement which he or she knows to be

false   under an oath required or authorized       by   law." As was required to support a conviction for


second degree perjury, to support a first degree perjury conviction the State must also have

presented:




6 Because we hold that sufficient evidence did not support Arquette' s second degree perjury
conviction, we need not address his ineffective assistance of appellate counsel claim for failing
to raise the sufficiency issue in his direct appeal.
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               1. the testimony of at least one credible witness which is positive and
       directly contradictory of the defendant' s oath; and
               2. another such direct witness or independent evidence of corroborating
       circumstances of such a character as clearly to turn the scale and overcome the
       oath of the defendant and the legal presumption of his innocence.

Olson, 92 Wn.2d at 136.


       The State argues that the same evidence it cited in support of Arquette' s second degree


perjury conviction supports his first degree perjury conviction, specifically the direct testimony

of McKee and Ash or, in the alternative, McKee' s direct testimony together with corroborating

evidence showing that the Datsun had not been stolen. As we explained above, Ash' s testimony

was insufficient to meet the standard required to support a perjury conviction because he was not

in a position to know whether Arquette' s sworn testimony that his truck had been stolen was

false. See Singh, 27 Wn. App. at 976. As also explained, the State' s corroborating evidence was

insufficient to meet the standard required to support a perjury conviction because it was not

inconsistent with Arquette' s innocence. Accordingly, we reverse Arquette' s first degree perjury

conviction.7

        We grant Arquette' s PRP, reverse both his 2010 second degree perjury conviction and the

2011 first degree perjury conviction, and remand to the trial court to dismiss both charges with




7 Because we reverse Arquette' s first degree perjury conviction for lack of sufficient evidence,
we need not address his double jeopardy argument.

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No. 42546 -7 -II (Cons. With
 No. 42974 -8 -II)

prejudice.




                                BT      RGEN
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                                    J




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