                                                                                                   FILED
                                                                                            COUtRT, OF APPEALS
                                                                                                 DIVISION11

                                                                                          2015 FEB 18   AM 9 20
    IN THE COURT OF APPEALS OF THE STATE OF WASTIT                                                            G T ON

                                                                                           BY
                                               DIVISION II

STATE OF WASHINGTON,                                                         No. 45253 -7 -II


                                    Appellant,


          v.



KEELAN BERNICE PREDMORE,                                                    Consolidated with


                                    Respondent,
 STATE OF WASHINGTON,                                                        No. 45256 -1 - II


                                    Appellant,


          v.



 MICHAEL FREDRICK PREDMORE,                                            UNPUBLISHED OPINION


                                    Respondent.


        SUTTON, J. —      The State appeals the trial court' s order granting Keelan Bernice Predmore

and Michael Fredrick Predmore' s CrR 7. 4( a)( 3) motions to arrest judgment after a jury convicted

each of   them   of malicious mischief      in the first degree'   of a rental   house.   The State argues that


there was sufficient evidence that the Predmores maliciously caused more than $5, 000 in damage

to the rental house in retaliation for being evicted and that this damage occurred during the charged

time   period.     Because the evidence did not establish that Keelan and Michael Predmore


individually     caused   more   than $   5, 000 in damage to another' s property and the jury was not

instructed on accomplice liability, we affirm the trial court.




 RCW 9A. 48. 070( 1)(      a).
Consolidated Nos. 45253 -7 -II and 45256 -1 - II



                                                      FACTS


                                                 I. BACKGROUND


         In February 2010, Keelan and Michael2 rented a three bedroom house from Seth Walter on

a month -to -month lease. Walter conducted a walk -through with the Predmores when they signed

the lease and no damages to the house were noted at that time. The Predmores lived in the house

with their son and daughter.


         Walter soon started to have trouble collecting the rent from the Predmores. In April 2012,

the Predmores     stopped   paying     rent, and   Walter   started eviction proceedings.     Walter served the


eviction papers   in late April   or   early   May. He obtained the judgment evicting the Predmores on

May 16.

         Walter went to the house on May 24, after he had learned that the Predmores had vacated

the house. Upon entering the house, he observed significant damage throughout the house. There

were holes in several walls and in the kitchen cabinets, some the size of a baseball or a fist; nail

polish had been thrown on the carpet; the refrigerator had several dents in it; the kitchen island had


been damaged; the stair railing had been pulled out of the wall; and there was graffiti on the

downstairs bathroom      wall.    Walter had not noticed any of this damage when he had last been in

the home two months earlier to check on an appliance, and the Predmores had not reported any

problems with the    house'   s condition.     Walter     spent $   13, 700 to repair the damage.




2 Because Keelan and Michael Predmore share a last name, we refer to them by their first names
to   avoid confusion.   We intend      no   disrespect.
Consolidated Nos. 45253 -7 -II and 45256 -1 - II




                                                 II. PROCEDURE


          The State charged Keelan and Michael separately with malicious mischief in the first

degree.      Each of their charging informations alleged that they committed the offense as

accomplices.3

                                      A. Testimony and Jury Instructions

          Walter testified for the State as described above. Two deputies who had been to the house


prior to May 24, one of whom also responded to house on May 25 after Walter reported the

damage, also testified for the State.


          The deputy who responded to the house on May 25, Pierce County Deputy Sheriff Sheldon

W. Lessard, testified       about   the damage to the house     he   observed   that   day. That testimony was

consistent with Walter' s testimony. Deputy Lessard also testified that he had been at the house on
                                                    4
May    17   with   Deputy   Dennis D. Miller, Jr.       During the May 17 contact, Deputy Lessard entered

the house and spoke with Michael in the dining room area. He observed Michael taking the legs

off of the dining room table; Michael explained that he was disassembling the table because the

family had    been    evicted and were     moving.      At that time, Deputy Lessard observed some of the

same   damage he      observed on    May   25.   But he did not personally see Michael or Keelan damage

the house. Although Deputy Lessard testified that Michael seemed agitated because the deputies




3 Before trial, the trial court denied the Predmores' pretrial Knapstad motions to dismiss for lack
of evidence. State v. Knapstad, 107 Wn.2d 346, 729 P. 2d 48 ( 1986).


4 The record does not show why the deputies were at the house or why they spoke Michael or
Keelan.




                                                           3
Consolidated Nos. 45253 -7 -II and 45256 -1 - II



were at the house on May 17, he testified that Michael did not seem to be concerned about the

damage to the house.


       Deputy Milller testified that when he was at the house on May 17, he spoke to Keelan in

an upstairs bedroom. While in the house, he also could see the stairway, the upstairs hallway, the

kitchen, the living area, and the dining area. Although he observed holes in the walls as he " went

upstairs and then to the left down the hallway" to the bedroom, he did not recall seeing any other

damage. Verbatim Report of Proceedings ( VRP) at 78. He did not personally observe Keelan or

Michael damage the house.5

        The Predmores' s sole witness was Roger McElroy, a building material salesperson.

McElroy testified that on February 9, 2012, he met with Michael at the rental house to look at

several damaged items, specifically, five interior doors, a cabinet door, and the end panel of the

kitchen island. McElroy did not know when these items had been damaged. He also testified that

he did not observe any other damage to the house, but he stated that he was not looking for any

additional damage and Michael did not ask him to examine anything elsewhere in the house.

        After the parties rested, they discussed the jury instructions with the trial court. The State' s

proposed to- convict instructions ( one for each defendant) required the jury to find that each

defendant or an accomplice caused more than $5, 000 of damage to the property. The Predmores

objected to the accomplice liability language in the to- convict instructions. The trial court struck




5 After the State rested, the Predmores renewed their motions to dismiss, arguing that the State had
not presented any evidence that either of them had caused the damage. The trial court denied these
motions.




                                                    4
Consolidated Nos. 45253 -7 -II and 45256 -1 - II




the accomplice language, finding that there was no evidence supporting an accomplice liability

theory. 6       The trial court' s to- convict instructions required the jury to find that each defendant

caused physical           damage exceeding $ 5,      000 " on or about the period between the 17th day of May

and   the 24th     day    of   May,   2012 ";   these instructions did not mention accomplice liability. Clerk' s

Papers ( CP)        at   75, 76.      The jury found Keelan and Michael guilty of first degree malicious

mischief.


                                            B. Motions to Arrest Judgments


           Following the verdict, the Predmores filed motions to arrest the judgments under CrR

7. 4( a)( 3),   arguing that the evidence was insufficient to prove that ( 1) the damages occurred on or

about    May      17th   through May 24th, 2012; ( 2) either party was present when the damage occurred;

 3)   either    party    individually   caused    the damage; ( 4)   either party caused the damage with malicious

intent; or (5) any damage either party individually caused resulted in over $5, 000 in damages. The

trial court granted the motions and entered written findings of fact and conclusions of law for each

of the Predmores.


            In its conclusions of law, the trial court noted that it had not instructed the jury on

accomplice         liability " because there was no evidence presented that either party acted as an

accomplice        to the   crime of malicious mischief        in the first degree."   CP at 104 ( Conclusion of Law


 CL) 3), 218 ( CL 3).           It found, inter alia, that although the State had proved that the Predmores had


motive and opportunity to cause the damage, this was insufficient to prove the individual charges

against them because the State had failed to present any evidence that either of the Predmores



6 The State does not appeal this ruling.


                                                               5
Consolidated Nos. 45253 -7 -II and 45256 -1 - II




individually        acted   to   cause    the   more   than $ 5, 000 in    damage to the      residence.   The trial court


arrested the judgments and dismissed the charges with prejudice. The State appeals.

                                                             ANALYSIS


             The State argues that the trial court improperly arrested the judgments because there was

sufficient evidence         to   support   the   jury' s   verdicts.   We disagree.


                                                    I. STANDARD OF REVIEW


             CrR 7. 4( a)( 3) allows a defendant to move to arrest judgment for "insufficiency of the proof

of a material element of            the   crime."      In ruling on a motion for arrest of judgment, the trial court

may not weigh the evidence; instead, it may only test or examine the sufficiency the evidence.

State   v.   Randecker, 79 Wn.2d 512, 517, 487 P. 2d 1295 ( 1971);                    State v. Hampton, 100 Wn. App.

152, 157, 996 P. 2d 1094 ( 2000), reversed on other grounds, 143 Wn.2d 789, 24 P. 3d 1035 ( 2001).


The evidence presented in a criminal trial is legally sufficient to convict if any rational trier of fact,

viewing the evidence in the light most favorable to the State, could have found the essential

elements       of the    charged crime          beyond     a reasonable   doubt. State v. Longshore, 141 Wn.2d 414,


420 -21, 5 P. 3d 1256 ( 2000).              When reviewing a trial court' s decision on a motion for arrest of

judgment, we engage in the same sufficiency inquiry as the trial court. Longshore, 141 Wn.2d at

420.


  II. No EVIDENCE THAT EACH DEFENDANT INDIVIDUALLY CAUSED OVER $ 5, 000 IN DAMAGES

             The State argues that the trial court erred when it determined that there was insufficient

evidence each defendant caused the relevant damages because there was circumstantial evidence


that the Predmores caused the damages and there was no evidence that anyone ( either the couple' s


children       or   a   stranger)   caused       the damages.          The State   contends   that the evidence that the
Consolidated Nos. 45253 -7 -II and 45256 -1 - II



Predmores had motive, means, and opportunity to damage the house was sufficient to establish

they caused the damages because the Predmores' conduct was inconsistent with innocence or

manifested consciousness of guilt and the circumstances did not support an innocent explanation.


         RCW 9A.48. 070( 1) provides in part:


         A person is guilty of malicious mischief in the first degree if he or she knowingly
         and maliciously:


          a) Causes physical damage to the property of another in an amount exceeding five
         thousand dollars[.]


There was no accomplice liability instruction, and none of the parties argued that either defendant

was guilty as an accomplice. Thus, the State had to prove that each of the Predmores committed

the offense as a principle, which required it to prove that each had individually caused more than

 5, 000 of physical damage to Walter' s property.

         Even if we assume, without deciding, that there was sufficient evidence that Keelan and

Michael individually caused damage to the house, the State presented no evidence from which the

jury   could   have   attributed   any   portion of   the total damages to any individual defendant.     If the to-


convict instructions had allowed the jury to convict the Predmores as accomplices rather than

requiring the    jury   to find that Keelan      and    Michael had   individually   caused more   than $ 5, 000 in


damages, the State'       s   argument     might   have    some   merit.   But, even though the evidence was




7 The State asserts that .the graffiti in the bathroom could be contributed to Michael because it
referenced the author' s male genitalia and that the damage to the carpet could be contributed to
Keelan because the damage                 by nail polish. Even assuming that the jury could have
                                     was caused

made these same attributions, the record does not show that the damage to the bathroom containing
the graffiti or the cost of the carpet exceeded $ 5, 000.




                                                             7
Consolidated Nos. 45253 -7 -II and 45256 -1 - II



sufficient     to   show     that the   aggregate       damages far       exceeded $     5, 000, it was not sufficient to show


that any individual person had caused more than $5, 000 in damage. 8
             Citing several cases, the State contends that there was sufficient circumstantial evidence to

support the jury' s verdict, particularly because this is the type " clandestine destruction" that will
                                                    9
not
      likely result     in direct   evidence.           Br.   of   Appellant   at   14 ( emphasis   omitted).   But, as discussed


above, even presuming that there was sufficient evidence to support a finding that both Michael

and Keelan caused the damage, there was no evidence, either direct or circumstantial, that would


have assisted the jury in determining how much damage Michael and Keelan caused individually.

None of the cases the State cites address circumstances where the jury had to apportion damages

between two potential principles in a crime, so they are not helpful here.

             The State had to prove that each of the Predmores committed the offense as a principal,

which required it to prove that each had individually caused more than $5, 000 of physical damage

to Walter'      s   property. Although the State               presented evidence of more            than $ 10, 000   in aggregate




8 The State argues that the trial court erred by weighing the evidence of causation. This argument
is not well taken because the record contains no evidence of who caused what amount of damage,
so there was no evidence for the trial court to weigh as to this element.

9
    The State       cites   United States      v.   Schlesinger, 438 F. Supp. 2d 76 ( E. D. N.Y, 2006); State v. Mace,
97 Wn.2d 840, 843, 650 P. 2d 217 ( 1982);                          State v. Young, 87 Wn.2d 129, 137, 550 P. 2d 1 ( 1976);
State   v.   Johnsen, 76 Wn.2d 755, 758, 458 P. 3d 887 ( 1969); State v. Despain, 152 Wash. 488, 489-
91, 278 P. 173 ( 1929); State             v.   Nichols, 143 Wash. 221, 228, 255 P. 89 ( 1927); State v. We, 138
Wn.  App. 716, 729,             158 P. 3d 1238 ( 2007),               review   denied, 163 Wn.2d 1008 ( 2008) ( the State
incorrectly identifies                                  State v. Clark, 78 Wn. App. 471, 475 -80,
                                this case as State v. White Eagle);
898 P. 2d 854,  review          denied, 128 Wn.2d 1004 ( 1995);
                                                      State v. Pennewell, 23 Wn. App. 777, 782,
589 P. 2d 748, review denied, 92 Wn.2d 1036 ( 1979) ; Thompson v. State, 262 Ga. App. 17, 585
S. E. 2d 125 ( 2003); Warren v. State, 475 So. 2d 1027 ( Fla. App. 1 Dist., 1985); Bustamante v.
State, 557 N.E.2d 1313, 1320 ( Ind., 1990); Com. v. Roman, 43 Mass. App. Ct. 733, 686 N.E.2d
218 ( 1997), aff'd, 427 Mass. 1006, 694 N.E. 2d 860 ( 1998).
Consolidated Nos. 45253 -7 -II and 45256 -1 - 1I



damages to the house, there was no evidence tying any specific damage to any specific person and

there was no way the jury could attribute a specific amount of damage to either Michael or Keelan

individually, so the evidence does not support the convictions. Accordingly we hold that the trial

court   did   not   err in granting the   motions   to   arrest   judgment     and   dismissing   both   charges.   We


affirm.




          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.



                                                                94w41M
                                                                  Sutton, J.
We concur:




                                                            9
