                                                                           FILED
                                                                        August 9, 2016
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill


           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 33515-1-111
                    Respondent,              )         (consolidated with
                                             )         33516-0-111)
      V.                                     )
                                             )
CINDY L. MC MEANS,                           )         UNPUBLISHED OPINION
RICKYK. WATLAMET,                            )
                                             )
                    Appellants.              )
                                             )
WILLIAM LAWRENCE,                            )
                                             )
                    Defendant.               )

      KORSMO, J. -Cindy Lou McMeans and Ricky Watlamet both were convicted of

first degree unlawful hunting for killing elk on Ms. McMeans' property during a closed

season. Their appeal raises claims of prosecutorial vindictiveness and instructional error.

We affirm the convictions.

                                         FACTS

      The facts are essentially undisputed. Ms. McMeans owned land in Kittitas County

through which elk made their annual migration. Ms. McMeans contacted the Department

of Fish and Wildlife (DFW) about damage the elk herd routinely did to her property.

After talking with DFW representatives about available programs to address the herd and
No. 33515-1-111; 33516-0-111
State v. McMeans; State v. Watlamet


property damage, she declined to enter into a cooperative agreement with DFW. Instead,

she expressed an interest in contacting the Y akama tribe about harvesting elk.

       She then contacted Ricky Watlamet and asked him for help removing the elk. He

and his son went out to the property and examined the situation, without any intent to kill

the elk, but they were unable to accomplish anything. A few days later, Mr. Watlamet, a

designated hunter for the Y akama Tribe, received a request to provide meat for the

funeral of a tribal elder. He then returned to Ms. McMeans' property where he shot and

harvested four elk.

       In March 2013, neighbors reported to law enforcement that there were numerous

dead animals on Ms. McMeans' property. Police investigated and discovered the partial

remains of four elk. Because the killings occurred outside of elk season, the State

charged Ms. McMeans and Mr. Watlamet with second degree unlawful hunting of big

game. On the same day that charges were filed, the Ellensburg Daily Record published a

letter to the editor written by Ms. McMeans, in which she criticized DFW management of

the elk herd.

       On December 3, 2013, the prosecutor communicated a plea bargain to defense

counsel, indicating that the misdemeanor charges were for the purposes of plea

negotiations and that if the defendant filed any motions, the charges would be refiled in




                                             2
No. 33515-1-III; 33516-0-III
State v. McMeans; State v. Watlamet


superior court. Report of Proceedings (RP) (May 30, 2014) at 23-24. 1 On December 10,

2013, Mr. Watlamet's counsel filed a motion to dismiss the charges. Id. Before

receiving the motion that same day, the prosecutor initiated the following series of e-mail

communications with defense counsel.

       [Prosecutor:] Just an FYI-the elected wants this moved straight to
       Superior Court for felonies if you file any motions.
       [Defense:] Oops. Too late.
       [Prosecutor:] I can give you more time to look at the misdemeanor offer
       before we do any motions, or alternatively I can move it to Superior Court if
       you want to litigate. No sweat off my back either way-just need to know.
       [Defense:] Welcome to the big leagues.

Clerk's Papers (CP) (33516-0-III) at 38. On the 20th the court dismissed all charges at

the prosecutor's request. Felony charges were filed in superior court three months later.

       The defense moved to dismiss the charges, asserting that the initial and refiled

charges were the result of vindictive prosecution and that the defendants' actions were

protected by the constitutional right of free exercise of religion. The trial court denied the

vindictive prosecution motion, but deferred judgment on the First Amendment argument.

Following the trial testimony, the court declined to give an instruction concerning the

religious right defense, but did instruct the jury that a landowner is not guilty of unlawful

hunting when the killing is reasonably necessary for the defense of property.




       1
         This offer was made at the scheduled arraignment. However, no records from
the district court proceedings have been submitted here.

                                              3
No. 33515-1-III; 33516-0-III
State v. McMeans; State v. Watlamet


       The jury rejected the defense and convicted the defendants as charged. They

timely appealed to this court.

                                        ANALYSIS

       This appeal reprises the prosecutorial vindictiveness claim and also asserts that the

trial court erred in declining to instruct on a defense of free exercise of religion. We

address the vindictiveness claim before turning to the instructional error argument.

       Prosecutorial Vindictiveness

       Defendants argue that the decision to refile charges in superior court was the result

of prosecutorial vindictiveness. This argument fails both legally and factually. The

governing state precedent controls our decision.

       Prosecutorial vindictiveness is the filing of increased or more serious charges in

response to a defendant's exercise of a constitutional or procedural right. State v. Korum,

157 Wn.2d 614,627, 141 P.3d 13 (2006). An action is only vindictive if it is designed to

penalize the defendant. 2 Id. This doctrine works as a limited check on the otherwise

broad discretion enjoyed by the prosecuting attorney to file charges. State v. Lewis, 115

Wn.2d 294, 299, 797 P.2d 1141 (1990).




      2
         Because the essence of vindictiveness is retaliation, the doctrine has not been
applied to the prosecutor's initial decision to file charges. See Korum, 157 Wn.2d at 655-
662 (J.M. Johnson, J., concurring in part). We presume that is why the appellants do not
press their trial court argument that the original district court filing was vindictive.

                                             4
No. 33515-1-III; 33516-0-III
State v. McMeans; State v. Watlamet


       The Sentencing Reform Act of 1981, chapter 9.94A RCW (SRA), was designed to

prevent judicial intrusion into the prosecutorial decision to file, or not file, charges. See

generally DAVID BOERNER, SENTENCING IN WASHINGTON§ 12.24, at 12-47 (1985). To

that end, the SRA provides guidelines for prosecutors that do not constitute an

enforceable right. Id., at 12-46; RCW 9.94A.401. The prosecutor "should file charges

which adequately describe the nature of the defendant's conduct," and should not

overcharge a crime in order to obtain a guilty plea. RCW 9.94A.411(2)(a)(i), (ii).

However, the prosecutor may charge "other offenses" if they will "significantly enhance"

the State's case. RCW 9.94A.411(2)(a)(i)(A).

       This approach is one that encourages plea bargains, with the prosecutor filing what

he or she believes is the appropriate minimum charge. Instead of filing numerous counts

in order to dismiss most, "the initial charges are to be realistic charges which adequately,

but not exhaustively, describe the nature of the defendant's conduct, filed with the

expectation that they will not be reduced unless the circumstances on which they were
           •
based change." 3 Boerner, supra, § 12.20, at 12-34.

       Korum, which controls our decision here, demonstrates the standard SRA

approach to plea bargaining. There the defendant initially was charged with 16 felony



       3
         Washington recognizes a right to plead guilty at arraignment. CrR 4.2; State v.
Martin, 94 Wn.2d 1, 5,614 P.2d 164 (1980). Thus, the filing of charges effectively
constitutes a plea offer.

                                              5
No. 33515-1-III; 33516-0-III
State v. McMeans; State v. Watlamet


counts, but pleaded guilty after extensive negotiations to charges carrying a 20 year

sentence. 157 Wn.2d at 620-621. The defendant subsequently withdrew his guilty plea

due to an error in the plea process. The prosecutor then filed 32 felony charges that

included the original counts and additional charges relating to previously uncharged

offenses. Id. at 621. Upon being convicted on 30 counts and receiving a sentence of

slightly over 100 years, the defendant argued on appeal that he was being punished for

exercising his right to withdraw his guilty plea. Id. at 621-622, 630-631. Our court

concluded that the filing of the additional charges, as promised in the plea bargaining

process, did not establish prosecutorial vindictiveness. Id. at 627-636.

       Similarly here, the defendants' contention that the prosecutor punished them for

bringing motions in district court does not even remotely establish vindictiveness. The

prosecutor filed gross misdemeanor4 charges in district court with notice that the case

would be litigated in superior court as felony offenses if the defendants did not plead

guilty. Even after defense counsel advised the deputy prosecutor that he already had filed

motions, the prosecutor indicated that the plea offer still stood. Defense counsel then

declined the offer with his "big leagues" comment. At no time did the defendants



       4
         Felony first degree unlawful hunting of big game requires proof, as charged in
this instance, that a hunter killed three or more big game animals within a 24 hour period.
RCW 77.15.410(2)(a), (4). Second degree unlawful hunting of big game, a gross
misdemeanor, applies to all hunting of big game in violation of hunting regulations.
RCW 77.15.410(1), (3).

                                             6
No. 33515-1-III; 33516-0-III
State v. McMeans; State v. Watlamet


indicate any desire to plead guilty to any offense. Accordingly, the prosecutor removed

the case to superior court on a charge that more accurately reflected the criminal conduct.

Under the SRA and Korum, this was proper behavior. There was no prosecutorial

vindictiveness.

       Although Korum is dispositive, we also note that the result here is entirely

consistent with United States Supreme Court precedent. Closely on point is the decision

in United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982).

There a defendant, initially charged with misdemeanor offenses arising from an assault

on an officer and successful flight from the scene, declined to plead guilty and demanded

a jury trial. Id. at 370-371. The United States Attorney subsequently obtained a felony

indictment from a grand jury; the defendant ultimately was convicted by a jury of the

felony and one misdemeanor. Id. at 371. The United States Supreme Court concluded

that there was no prosecutorial vindictiveness from the subsequent felony indictment.

       Similar is Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604

(1978). There the defendant rejected an offer of a five year sentence in exchange for his

guilty plea even though he was aware that the prosecutor would seek a habitual criminal

indictment if the defendant declim;d the offer. Id. at 358. A grand jury returned the

habitual offender indictment and a jury subsequently convicted the defendant. Id. at 358-

3 59. The trial court imposed the mandatory sentence of life in prison required by the

habitual offender statute. Id. at 360. Once again, the court concluded that there was no

                                             7
No. 33515-1-III; 33516-0-III
State v. McMeans; State v. Watlamet


prosecutorial vindictiveness, noting that plea bargaining generally benefits both sides to a

criminal prosecution. Id. at 361-363. An offer made to induce a guilty plea does not

constitute vindictiveness. Id. at 364-365.

       The initial decision to file gross misdemeanor offenses in district court did not

thereby set a ceiling on potential criminal liability. The prosecutor was free to refile

charges in superior court once the defendants declined to plead guilty. The trial court

correctly concluded that there was no prosecutorial vindictiveness at work.

       First Amendment Defense Instruction

       Defendants 5 sought a jury instruction that would have provided a defense to the

charges if they proved, by a preponderance of the evidence, that ( 1) they were exercising

a sincerely held religious belief and (2) governmental action was a.substantial burden on

that belief. 6 CP (33516-0-III) at 117. The trial court declined to give the instruction,

determining that no evidence had been presented to support the second element of the

defense. RP (May 29, 2015) at 7-8. Once again, we agree with the trial court.




       5
         Although only Mr. Watlamet alleged that he was practicing his religion when he
killed the elk, Ms. McMeans also would have benefited from the instruction since the
case against her was predicated on accomplice liability.
       6
       The instruction also provided the defense could be overcome if the State showed
a compelling interest in restricting the exercise of religion and used the least restrictive
means of accomplishing that purpose. CP (33516-0-III) at 117.

                                              8
No. 33515-1-III; 33516-0-III
State v. McMeans; State v. Watlamet


       Individuals are entitled to constitutional protections against government actions

that burden sincerely held religious beliefs. U.S. CONST. art. I, § 11. To establish

constitutional protection for religious practices, a party must first prove "that their

religious convictions are sincere and central to their beliefs." Backlund v. Bd. of

Comm 'rs of King County Hosp. Dist. 2, 106 Wn.2d 632, 639, 724 P.2d 981 (1986). Next,

the party must show that the challenged action constitutes a burden on the free exercise of

religion. Munns v. Martin, 131 Wn.2d 192, 200, 930 P .2d 318 ( 1997). A facially neutral,

even-handedly enforced statute may still violate article I, § 11 if it indirectly burdens the

exercise of religion. Id. Finally, a challenged action that constitutes a burden may

nonetheless be justified where it is narrowly tailored to serve a compelling governmental

interest. Id.

       Long settled standards govern our review of this ruling. Jury instructions are

sufficient if they correctly state the law, are not misleading, and allow the parties to argue

their respective theories of the case. State v. Dana, 73 Wn.2d 533, 536-537, 439 P.2d 403

(1968). The trial court also is granted broad discretion in determining the wording and

number of jury instructions. Petersen v. State, 100 Wn.2d 421,440, 671 P.2d 230 (1983).

Discretion is abused when it is exercised on untenable grounds or for untenable reasons.

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971). A criminal

defendant has a right to have the jury instructed on a defense that is supported by

substantial evidence. State v. Powell, 150 Wn. App. 139, 154, 206 P .3d 703 (2009).

                                               9
No. 33515-1-III; 33516-0-III
State v. McMeans; State v. Watlamet


       Here, however, appellants did not produce any evidence that the governmental

action in question-limiting tribal hunting rights to open, public 7 lands-substantially

burdened the free exercise of religion. The defense presented substantial evidence that

Mr. Watlamet had sincere religious beliefs and that he used the elk meat for religious

purposes. However, he did not provide any evidence that the McMeans property was the

only available location to obtain the elk meat. In fact, the record shows that Mr.

Watlamet could lawfully hunt elk on State land, Federal land, tribal land, or any open and

unclaimed land. 8 The record also indicates that at the time in question there were

numerous elk on the reservation as well as elk on state land adjacent to the McMeans

property. Mr. Watlamet could have hunted these elk without running afoul of any

regulation. He presented no evidence that either these particular elk or this particular

place were necessary, preferable, or even convenient, nor has he presented any evidence

that hunting the lawfully available elk was in any way burdensome.

       In sum, the defense presented no evidence that the hunting regulations at issue

burdened any religious practices. Accepting the defense argument would allow



       7
       The 1855 Treaty with the Yakama Tribe permits hunting on "open and
unclaimed lands," but does not extend to hunting on privately owned lands. See State v.
Chambers, 81 Wn.2d 929, 934-936, 506 P.2d 311 (1973).
      8
         In their reply, the appellants assert that submission of this information is
inappropriate because a treaty based defense to the crime was not litigated. However,
this information was presented below (see CP at 120-127) and was relevant to whether
Mr. Watlamet's religious exercise was burdened.

                                             10
No. 33515-1-III; 33516-0-III
State v. McMeans; State v. Watlamet


individuals to choose to violate a neutral law in the course of religious exercise when the

law did not burden religious practices.

       The trial court did not err in concluding that the proposed instruction lacked

evidentiary support. Because there was no basis for instructing the jury on the defense,

the court correctly declined to give the instruction.

       The convictions are affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:


  d?dhw.7
       Siddoway, J.
                             ,[t.
       Lawrence-Berrey, A.C.
                                    j




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