                                                                  FILED

                                                             APR 25, 2013

                                                    In the Office of the Clerk of Court 

                                                   WA State Court of Appeals, Division III 


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


. STATE OF WASHINGTON,                       )         No. 30236-9-111
                                             )
                           Respondent,       )
                                             )
        v.                                   )
                                             )         UNPUBLISHED OPINION
ELUTERIO MORFIN-CAMACHO,                     )
                                             )
                           Appellant.        )

      KORSMO, C.J. -    A stolen potato truck burst through the side of a warehouse and

left the scene without providing the information required of a driver involved in an

accident. We conclude the evidence supported the hit and run and other associated

convictions.

                                         FACTS

      The bizarre events of the early hours ofMay 22,2011, allegedly had their genesis

in a motel parking lot. Mr. Eluterio Morfin-Camacho was assisting his girl friend in

moving from one Pasco motel to another when he encountered two strangers in the
No.30236-9-II1
State v. Morfin-Camacho

parking lot of the Motel 6 shortly after midnight. They invited him to    ~~party"   with them

and, after the group drove to the Airport Motel l in two vehicles, he got into their car.

       After driving away from the hotel, one of the men pointed an automatic pistol at

Mr. Morfin-Camacho and ordered him to remove all of his clothing and jewelry. He

complied with the command. The car stopped and he was ordered out. Fearing that he

would be shot, Mr. Morfin-Camacho fled to a nearby warehouse while the two men drove

back toward the Airport Motel. Finding a partially opened roll-up door, he entered and

discovered a potato transport truck and a pair of overalls, but no telephone. While

dressing in the overalls, he heard another vehicle outside. He jumped into the truck,

started it up, and drove out through the door without attempting to open it. The door was

destroyed and the truck sustained damages in excess of $1 ,200.

       Mr. Morfin-Camacho drove the truck away from the scene and stopped at the

Airport Motel. The manager refused to allow him to use the telephone and ordered him

to remove the truck from the parking lot. Mr. Morfin-Camacho moved it to a nearby gas

station and returned to the motel. He borrowed a phone from a stranger and used it to

call another friend rather than the police. He later admitted that he knew he was only

about a mile away from the police station, but he made no effort to contact them.




       I   The Airport Motel was the destination to which his girl friend was moving.

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No. 30236-9-III
State v. Morfin-Camacho

       The motel manager anonymously called the police. They responded and found

Mr. Morfin-Camacho. The officers described him as excited, smelling of intoxicants, and

appearing to have mood swings. He was barefooted and dressed solely in the overalls; he

still had the keys to the truck. He showed officers the warehouse where he had obtained

the potato truck.

       The prosecutor filed charges of second degree burglary, second degree taking a

motor vehicle, second degree malicious mischief, and failure to remain at the scene of an

accident. The case eventually proceeded to bench trial. The case was defended on the

basis of necessity. The trial judge found that Mr. Morfin-Camacho was not a credible

witness, but nonetheless he acquitted him on the burglary count. The court found him

guilty on the three remaining charges.

       The court imposed concurrent terms of 90 days' incarceration for the three

offenses. Mr. Morfin-Camacho then timely appealed to this court.

                                         ANALYSIS

       This appeal challenges the adequacy of the charging document, the sufficiency of

the evidence supporting the three convictions, and the performance of defense counsel for

pursuing a necessity defense instead of a duress defense. 2 We will address the issues in

that order.


       2  Appellant also argues that the CrR 6.1 findings are inadequate, primarily as they
fail to address the mental states at issue. In light of the defense at trial, which admitted
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No. 30236-9-111
State v. Morfin-Camacho

       Charging Document

       Mr. Morfin-Camacho initially argues that the misdemeanor hit-and-run charge was

not adequately stated in the charging document. He did not raise this claim in the trial

court. We agree that the charging document is deficient.

       Settled principles govern review of this claim. A charging document must state

the elements of the alleged crime in order to give the accused an understanding of the

crime charged. "All essential elements of a crime, statutory or otherwise, must be

included in a charging document in order to afford notice to an accused of the nature and

cause of the accusation against him." State v. Kjorsvik, 117 Wn.2d 93,97, 812 P.2d 86

(1991). When challenged for the first time after a verdict has been returned, courts will

liberally construe the document to see if the necessary facts can be found. If not, the

charge will be dismissed without prejudice. Even if the charge is stated, a defendant who

shows prejudice from "inartful" pleading also receives a dismissal of charges without

prejudice. fd. at 105-06.

       Mr. Morfin-Camacho did not challenge the charging document until this appeal.

Thus, the liberal construction standard applies here. fd. RCW 46.52.010(2) governs the

circumstance of an accident resulting in property damage, while RCW 46.52.010(1)



the charges but claimed justification, we do not see that the findings prejudiced the
appeal, so there is no need to remand for a more thorough explanation. State v. Head,
136 Wn.2d 619,624-25,964 P.2d 1187 (1998).

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No. 30236-9-111
State v. Morfin-Camacho

defines an operator's duties when striking an unattended vehicle. 3 The duties set forth in

RCW 46.52.010(2) are:

       The driver of any vehicle involved in an accident resulting only in damage
       to property fixed or placed upon or adjacent to any public highway shall
       take reasonable steps to locate and notify the owner or person in charge of
       such property of such fact and of the name and address of the operator and
       owner of the vehicle striking such property, or shall leave in a conspicuous
       place upon the property struck a written notice, giving the name and
       address of the operator and of the owner ofthe vehicle so striking the
       property, and such person shall further make report of such accident as in
       the case of other accidents upon the public highways of this state.

       The final charging document filed in this case alleged in count 1 that

      the said Eluterio Camacho in the County of Franklin, State of Washington,
      on or about March 22, 2011, then and there, while driving a motor vehicle,
      with knowledge that an accident occurred, was involved in an accident
      resulting in property damage to an unattended vehicle or other property,
      failed to immediately stop his vehicle at the scene of the accident or as
      close thereto as possible, and locate or attempt to locate, and notify the
      operator or owner or person in charge of the damaged property of his name
      and address, or failed to leave in a conspicuous place upon the damaged
      property a written notice containing his name and address~

Clerk's Papers at 28.

       The statute requires a driver involved in an accident that causes damage to

property adjacent to a public highway to (1) take reasonable steps to notify the property

owner or to leave a note with his identifying information, and (2) to make a report ofthe

accident. The charging document, however, does not mention the reporting requirement.


       3 Prior to amendment by Laws of2003, ch. 53, § 241, the statute treated
unattended vehicles and other property the same for purposes of this statute.
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No. 30236-9-III
State v. Morfin-Camacho

       Even giving the charging document the liberal construction required by the belated

challenge, it is deficient on the accident reporting element. A driver's duties are two-fold

after an accident-notify the property owner (by one of two methods) and file an accident

report. The charging document here does not state that second duty and there is no way

to infer that element from the other charging language. 4 It did not adequately notify Mr.

Morfin-Camacho of all of the elements of the offense.

       Accordingly, the charge of failure to stop in count I is reversed without prejudice.

       Sufficiency o/the Evidence

       Mr. Morfin-Camacho challenges the sufficiency of the evidence to support all

three convictions, arguing that the State failed to prove that he had not properly reported

the accident and that his actions were justified, thus negating the mental elements of the

other two counts. We disagree.

       The sufficiency of the evidence to support a verdict also is reviewed according to

long-settled principles. The reviewing court does not weigh the evidence or sift through

competing testimony. Instead, the focus is whether there is sufficient evidence to support

the determination that each element ofthe crime was proved beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2181, 61 L. Ed. 2d 560 (1979); State v.



       4We agree with appellant that there is significant extraneous language in the
charging document, which appears to have combined the requirements of RCW
46.52.020(1) and (2), but we disagree that he was prejudiced by its inclusion.

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No. 30236-9-111
State v. Morfin-Camacho

Green, 94 Wn.2d 216, 221-22,616 P.2d 628 (1980). The reviewing court will consider

the evidence in a light most favorable to the prosecution. Green, 94 Wn.2d at 221-22.

       Failure to Stop. Appellant contends that the State did not establish that the

warehouse was adjacent to a public highway or that he failed in his reporting duties. The

evidence did establish those elements of the crime.

       As noted previously, RCW 46.52.010(2) requires the State to prove that the

defendant damaged "property fixed or placed upon or adjacent to any public highway."

There was evidence in the record to support this element. Officer Anthony Aceves

described the location as "on 4th" and that if you traveled on 4th, "you'll run right into

it." Report of Proceedings (July 13,2011) at 14. Exhibit 2 is a photo showing the

warehouse; the street is visible nearby.5 Viewing the evidence most favorably to the

prosecution, the warehouse was "adjacent" to a "public highway."

       The reporting element was also established. Mr. Morfin-Camacho did not leave a

note at the scene, nor did he communicate with the building owner and identifY himself

as the person who drove through the warehouse. He likewise did not file an accident

report. Merely talking to police does not satisfY these two requirements of the statute.




      5 Indeed, Mr. Morfin-Camacho's justification for taking the truck and driving
through the door (instead of opening it) was that he heard a vehicle right outside the
warehouse. That explanation itself suggests the building was adjacent to a public
highway.

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No. 30236-9-111
State v. Morfin-Camacho

Viewed in a light most favorable to the prosecution, the evidence supported the

conviction.

       Taking a Motor Vehicle and Malicious Mischief Appellant also contends that, in

light of his desperate situation, the record does not support that he acted culpably. His

view of the incident ignores the standards that govern this court's review.

       A person commits second degree taking a motor vehicle when, without

permission, he "intentionally ... drives away any ... motor vehicle" belonging to

another person. RCW 9A.56.075(1). Second degree malicious mischief is committed

when a person "knowingly and maliciously [c]auses physical damage to the property of

another in an amount exceeding seven hundred fifty dollars." RCW 9A.48.080(l)(a).

       Mr. Morfin-Camacho contends that he did not have the requisite mental state

because he was acting to save himself rather than to take or destroy the property of

another. This argument fails on two accounts. First, the trial court expressly found Mr.

Morfin-Camacho was not credible and that his story made no sense. 6 This court has to

defer to that finding and cannot engage in its own credibility determination. Quinn v.

Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009).




       6Despite knowing that the robbers had driven back toward the motel where he had
been abducted, Mr. Morfin-Camacho returned there and then made no effort to contact
police. The trier of fact understandably did not credit the story.

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No. 30236-9-111
State v. Morfin-Camacho

       Second, this argument stands appellate review on its head. We look at the

evidence in the light most favorable to the prosecution. Viewed in the proper manner, the

evidence easily supported the verdicts. The appellant admittedly drove off with the truck

for the purpose of getting away from the warehouse. It was intentionally taken.

Similarly, he knowingly drove through the warehouse door rather than attempt to open it,

and the resulting damage to the door and the truck easily exceeded the $750 statutory

limit. Without considering his professed reasoning for doing so, the evidence still amply

supported the conviction.

       The evidence was sufficient to support all three convictions~

       Effective Assistance o/Counsel

       Mr. Morfin-Camacho also argues that his counsel erred by pursuing a necessity

defense instead of a duress defense. This was a matter of tactics, but counsel also

pursued the proper defense under the evidence. Mr. Morfin-Camacho also was not

prejudiced by the choice of defenses.

       As with the other issues presented in this appeal, the standards of review of a

claim of ineffective assistance of counsel are well understood. The Sixth Amendment

guaranty of the right to counsel requires that an attorney perform to the standards of the

profession. Counsel's failure to live up to those standards will require a new trial when

the client has been prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322,

334-35, 899 P .2d 1251 (1995). In evaluating ineffectiveness claims, courts must be
                                             9

No. 30236-9-111
State v. Morfin-Camacho

highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for

finding error. Stricklandv. Washington, 466 U.S. 668, 689-91,104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984). To prevail on a claim of ineffective assistance, the defendant must show

both that his counsel erred and that the error was so significant, in light of the entire trial

record, that it deprived him of a fair trial. Id. at 690-92.

       Necessity is a common law defense that excuses criminal conduct when pressure

brought on "by forces of nature" leads to a criminal act that avoids a greater harm. State

v. Gal/egos, 73 Wn. App. 644, 651, 871 P.2d 621 (1994); State v. Turner, 42 Wn. App.

242,247, 711 P.2d 353 (1985); State v. Diana, 24 Wn. App. 908, 604 P.2d 1312 (1979).

In contrast, duress is a statutory defense. The legislature has provided in relevant part

that duress exists when

       [t]he actor participated in the crime under compulsion by another who by
       threat or use of force created an apprehension in the mind of the actor that
       in case of refusal he or she or another would be liable to immediate death or
       immediate grievous bodily injury.

RCW 9A.l6.060(1)(a).

       Appellant argues that the necessity defense did not apply in this circumstance

because it was the actions of the two robbers, not a "force of nature," that compelled his

criminal actions. There is some support for this argument. See Gal/egos, 73 Wn. App.

644 (friend's need of aid did not support necessity defense); Diana, 24 Wn. App. 908

(medical necessity for marijuana use because of disease). However, Division Two of this


                                               10 

No. 30236-9-III
State v. Morfin-Camacho

court has concluded that a necessity defense is available when the defendant has been

threatened with criminal violence. State v. Niemczyk, 31 Wn. App. 803, 644 P.2d 759

(1982) (escape from prison to avoid sexual assault). We need not resolve this split of

authority here because the trial court did consider the necessity defense. It rejected the

defense because the defendant's story was not credible; it did not find the defense

unavailable as a matter of law.

       By the plain terms of the duress statute, the defense was not available to Mr.

Morfin-Camacho. Duress applies when another person coerces the defendant into

committing the crime by threatened use of force if the person refuses to participate. It

does not apply to crimes committed to avoid another person's threatened criminal

activity. In other words, duress is a defense if one is forced by another to commit the

crime in question; it is not a defense to a crime committed out of fear of injury by

another. See Turner, 42 Wn. App. 242 (duress proper instead of necessity when

defendant forced to deliver drugs to prison to avoid assaults against her husband and

son); Niemczyk, 31 Wn. App. 803 (duress not available in escape from prison to avoid

sexual assault).

       Duress was not available under these facts. Defense counsel therefore was not

ineffective for failing to use that defense. Moreover, even if the duress defense had been

available here, counsel cannot be faulted for instead choosing to use the necessity defense

since Niemczyk suggested it was available. Thus, this strategic decision is beyond
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No. 30236-9-111
State v. Morfin-Camacho

challenge per Strickland. Finally, even if the necessity defense had been improperly

presented, Mr. Morfin-Camacho cannot establish prejudice because the trial court

nonetheless considered the defense.

      For all of the stated reasons, appellant has not borne his burden of establishing that

counsel performed deficiently.

      Affirmed in part; reversed in part.

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

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

2.06.040.


                                                                 orsmo, C.J.

WE CONCUR:




      Kulik,1.




                                            12 

