                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      December 29, 2015



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                               No. 46516-7-II

                               Respondent,

        v.

 JUSTIN SCOTT FESSEL,                                        UNPUBLISHED OPINION

                               Appellant.

       JOHANSON, C.J. — Justin Fessel appeals his convictions for two counts of bail jumping

and the resulting sentences. Fessel argues that the State’s evidence is insufficient to support his

bail jump convictions. We agree and reverse his convictions with prejudice.

                                             FACTS

       In February 2013, the State charged Fessel with possession of a controlled substance. On

February 14, he pleaded guilty and signed the court’s order that he return to court on March 12 for

sentencing. Fessel did not appear on March 12, and the State charged him with bail jumping.

Fessel appeared in court on March 13. Fessel explained to the trial court that a car accident on

March 12 prevented his appearance in court that day. The court ordered Fessel to return on March

21 for sentencing. Fessel signed the order, acknowledging that he had to appear on March 21, but

he failed to appear. The State charged him with a second count of bail jumping.

       At trial, the State introduced five exhibits and presented testimony of three witnesses.

Exhibit 1 was a February 2013 memorandum of disposition signed by Fessel that ordered him to

return to court on March 12. The memorandum contains a check-line indicating “[t]he defendant

shall be released from custody today on the above-captioned case(s) only,” but this provision was
No. 46516-7-II


not checked. Ex. 1. Exhibits 2, 3, and 5 are certified copies of clerk’s minute entries for March

12, 13, and 21, respectively. Each noted Fessel was not in custody. Exhibit 2 and 5 noted that

Fessel did not appear and a warrant was authorized for him. Exhibit 4 was a scheduling order from

March 13 signed by Fessel ordering him to return to court on March 21.

       Each of the bail jumping to-convict instructions required the following elements to be

proved by the State beyond a reasonable doubt:

               (1) That on or about [March 12 and March 21, 2013], the defendant failed
       to appear before a court;
               (2) That the defendant had been convicted of Possession of a Controlled
       Substance;
               (3) That the defendant had been released by court order with knowledge of
       the requirement of a subsequent personal appearance before that court; and
               (4) That any of these acts occurred in the State of Washington.

Clerk’s Papers at 33-34 (emphasis added). Neither Fessel nor the State objected to these jury

instructions, numbers 8 and 9.

       The jury convicted Fessel of both counts of bail jumping. Fessel timely appeals.

                                   SUFFICIENCY OF EVIDENCE

       Fessel argues that the State did not present sufficient evidence to sustain his bail jumping

convictions because no evidence showed Fessel was released by court order, a required element

under the jury instructions which became the law of this case. The State counters that its evidence

was sufficient because after pleading guilty, Fessel was ordered to return to court for sentencing,

creating an implied release by court order. We agree with Fessel.

                                      A. LAW OF THE CASE

       Jury instructions that neither party objects to become the law of the case and delineate the

State’s proof requirements. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998) (citing


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No. 46516-7-II


State v. Hames, 74 Wn.2d 721, 725, 446 P.2d 344 (1968)). Neither Fessel nor the State objected

to the “to-convict” instructions. Here, the “to-convict” instructions required the State to prove that

the defendant had been released by court order with knowledge of the requirement of a subsequent

personal appearance before that court.

       Because neither party objected to these instructions, they are the law of the case and

delineated the State’s proof requirements. Hickman, 135 Wn.2d at 102.

                     B. INSUFFICIENT EVIDENCE SUPPORTS THE CONVICTIONS

       Under the due process clause, the State is required to prove all necessary elements of a

crime charged beyond a reasonable doubt. U.S. CONST. amend. XIV, § 1; In re Winship, 397 U.S.

358, 362-65, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Colquitt, 133 Wn. App. 789, 796,

137 P.3d 892 (2006). The evidence must be viewed in the light most favorable to the State when

determining whether there is sufficient evidence to support a conviction. State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992). The evidence is deemed sufficient where “any rational

trier of fact could have found guilt beyond a reasonable doubt.” Salinas, 119 Wn.2d at 201.

       An appellant challenging the sufficiency of the evidence “‘admits the truth of the State’s

evidence’” and all reasonable inferences therefrom are drawn in favor of the State. State v.

Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004) (quoting Salinas, 119 Wn.2d at 201). Further,

direct evidence and circumstantial evidence are equally reliable. State v. Delmarter, 94 Wn.2d

634, 638, 618 P.2d 99 (1980). We may not substitute our judgment for the jury’s by reweighing

the credibility of witnesses or importance of the evidence. See generally State v. Green, 94 Wn.2d

216, 221, 616 P.2d 628 (1980).




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No. 46516-7-II


       The State introduced five exhibits. Exhibit 1 was a February 14, 2013 memorandum of

disposition signed by Fessel and ordering him to return to court on March 12. The memorandum

contains a check-line indicating “[t]he defendant shall be released from custody today on the

above-captioned case(s) only,” but this provision was not checked. Ex. 1. Exhibits 2, 3, and 5 are

all certified copies of clerk’s minute entries for March 12, 13, and 21, respectively. Each noted

Fessel was not in custody. Exhibit 2 and 5 noted that Fessel did not appear and a warrant was

authorized for him. Exhibit 4 was a scheduling order from March 13 signed by Fessel and ordering

him to return to court on March 21. While exhibits 1 and 4 show that Fessel knew of his obligation

to return to court on the noted dates, none of the exhibits say that Fessel was released by court

order and the line providing for release in exhibit 1 remained unchecked.

       The State’s presentation of witness testimony similarly could not show a court order

releasing Fessel for either count of bail jumping. Clark County Clerk Nancy Campbell testified

regarding the contents of the exhibits and confirmed each was a true and accurate copy. Prosecutor

Erin Culver testified that Fessel’s sentencing was set over to allow him to address child care needs

and confirmed Fessel signed and was given a copy of exhibit 1 showing he had a hearing scheduled

March 21. Finally, Fessel’s former attorney, Jeffrey Riback, testified that Fessel was given a copy

of exhibit 1 and failed to appear on March 12 and March 21.

       The State argues that because its evidence shows that Fessel pleaded guilty to possession

of a controlled substance, that the trial court issued warrants for his arrest, and that Fessel was

ordered to return to court for sentencing, his ability to remain free before sentencing was granted

by the court and depended on his written promise to return. The State argues that this evidence




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No. 46516-7-II


was sufficient because it shows Fessel was under the court’s jurisdiction and “impliedly under

release by court order.” Br. of Resp’t at 4.

        According to the State, it is a reasonable inference that if one is ordered to come back to

court with criminal consequences for failure to do so then one is “released by the court.” The State

cites no authority that an inference of an “implied release” is sufficient evidence of “release by

court order.” We disagree with the State’s argument. The evidence is deemed sufficient where

“any rational trier of fact could have found guilt beyond a reasonable doubt.” Salinas, 119 Wn.2d

at 201. Here, the State’s evidence that the court ordered Fessel to return and issued warrants for

him following missed court appearances was insufficient for a rational jury to find Fessel was

released by court order.

        We reverse the bail jumping convictions for insufficient evidence and remand to the trial

court to dismiss the charges with prejudice.

        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.



                                                     JOHANSON, C.J.
 We concur:



 WORSWICK, J.




 MAXA, J.


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