Filed Washington State Court of Appeals Division Two
July 6, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47277-5-II
Respondent,
v.
CHASE BRENDON McCRACKEN, UNPUBLISHED OPINION
Appellant.
LEE, J. — Chase Brendon McCracken was convicted, after a bench trial on stipulated facts,
of malicious mischief and residential burglary, both with sexual motivation. On appeal,
McCracken argues that (1) there was insufficient evidence to support (a) the element of malice in
his malicious mischief conviction and (b) that he acted with sexual motivation when he committed
residential burglary; (2) the State erred in believing it could not withdraw the sexual motivation
allegations; and (3) the legal financial obligations (LFOs) imposed at his sentencing should be
stricken because he lacks the ability to pay. We affirm.
FACTS
In early November 2013, McCracken entered a woman’s house, without her knowledge or
permission, through the “doggie door.” Clerk’s Papers (CP) at 23. McCracken entered the house No. 47277-5-II
because he was cold and hungry. McCracken had heard that the woman was frequently out of
town and chose to enter her house hoping she would not be there.
Inside, McCracken ate some candy, drank some juice, used the bathroom, undressed, and
got into the bed in the master bedroom. While he was in bed, he masturbated. McCracken left
before the woman returned home.
When the woman returned home, she discovered stains on her bedding, she contacted the
authorities, who took a sample from stain on the bedding. Testing by the Washington State Patrol
Crime lab showed that the stains were semen with a DNA (deoxyribonucleic acid) profile that
matched McCracken.
McCracken was charged with one count of residential burglary and one count of third
degree malicious mischief. He attempted to plead guilty at his first appearance, but he was not
allowed to do so. Before his arraignment, the State filed an amended information that added a
special allegation of sexual motivation to both charges.
McCracken moved to dismiss the sexual motivation allegations. The State opposed the
motion, arguing that the State was not allowed to dismiss the sexual motivation allegations without
the superior court making specific findings. The State also argued that while there may have been
other reasons for McCracken’s entry and remainder in the home, one of his purposes for remaining
in the home was to “gratify himself sexually” through masturbation. Transcript (Tr.) (Feb. 27,
2104) at 9. The superior court denied McCracken’s motion to dismiss the sexual motivation
allegations.
The case proceeded to a bench trial on stipulated facts. The stipulated facts included a
written statement by McCracken to the court and the police reports setting out the above facts.
2 No. 47277-5-II
Also included was a report of a psychologist and certified sex offender treatment provider who
determined that McCracken’s behavior was not consistent with a crime that was sexually
motivated and McCracken did not meet the description of someone who should register as a sex
offender.
The trial court found McCracken guilty of both counts with sexual motivation for each.
With respect to the malicious mischief with sexual motivation conviction, the trial court found
McCracken “masturbated with the affect [sic] of ejaculation and that was a willful disregard of the
rights of another, privacy rights among other things. Definitely would be vexing and annoying
and injurious. He knowingly and willfully did it and it was wrongfully done without lawful
excuse.” Tr. (Aug. 27, 2014) at 29. The trial court further found, with respect to the residential
burglary with sexual motivation conviction, that McCracken “was damaging sheets while
committing the residential burglary,” and he was sexually motivated when he damaged the sheets.
Tr. (Aug. 27, 2014) at 31.
McCracken was sentenced to an exceptional sentence below the standard range. The
sentencing court also imposed the following LFOs on McCracken: $500 Victim Assessment fee,
a $200 Criminal Filing Fee, and a $100 DNA Collection Fee.
McCracken appeals.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
McCracken argues that there was insufficient evidence to support the element of malice in
his conviction for malicious mischief. He also argues that there was insufficient evidence that he
acted with sexual motivation when he committed the residential burglary. We hold that there is
3 No. 47277-5-II
sufficient evidence to support the malice element in McCracken’s conviction for malicious
mischief, and that there is sufficient evidence to support a finding of sexual motivation on
McCracken’s residential burglary conviction.
a. Legal Principles
To determine whether sufficient evidence supports an adjudication, we view the evidence,
along with all reasonable inferences that may be drawn from the evidence, in the light most
favorable to the State and determine whether any rational fact finder could have found the crime’s
elements beyond a reasonable doubt. State v. Drum, 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010).
Following a bench trial, our review is limited to determining whether substantial evidence supports
the challenged findings and, if so, whether the findings support the conclusions of law. State v.
Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). Unchallenged findings of fact are verities
on appeal, and a trial court’s conclusions of law are reviewed de novo. Id.; State v. Gatewood,
163 Wn.2d 534, 539, 182 P.3d 426 (2008).
b. Malice—Malicious Mischief
RCW 9A.48.090 codifies Washington’s proscription of third degree malicious mischief.
In pertinent part, the statute states, “A person is guilty of malicious mischief in the third degree if
he or she . . . [k]nowingly and maliciously causes physical damage to the property of another,
under circumstances not amounting to malicious mischief in the first or second degree.” RCW
9A.48.090(1)(a). “Malice” and “maliciously” are defined as “an evil intent, wish, or design to
vex, annoy, or injure another person.” RCW 9A.04.110(12). The definition also includes a
permissive inference that says, “Malice may be inferred from an act done in willful disregard of
4 No. 47277-5-II
the rights of another, or an act wrongfully done without just cause or excuse.” RCW
9A.04.110(12).
McCracken argues the trial court erred by relying on the permissive inference as a
mandatory presumption. But, the record shows that sufficient evidence supports the trial court’s
finding that McCracken’s actions met the definition for malice without relying on any inference.
The trial court found that McCracken’s staining the woman’s sheets was “vexing and
annoying and injurious.” Tr. (Aug. 27, 2014) at 29. The definition of malice includes actions
done with “evil intent, wish, or design to vex, annoy, or injure another person.” RCW
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Filed Washington State Court of Appeals Division Two
July 6, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47277-5-II
Respondent,
v.
CHASE BRENDON McCRACKEN, UNPUBLISHED OPINION
Appellant.
LEE, J. — Chase Brendon McCracken was convicted, after a bench trial on stipulated facts,
of malicious mischief and residential burglary, both with sexual motivation. On appeal,
McCracken argues that (1) there was insufficient evidence to support (a) the element of malice in
his malicious mischief conviction and (b) that he acted with sexual motivation when he committed
residential burglary; (2) the State erred in believing it could not withdraw the sexual motivation
allegations; and (3) the legal financial obligations (LFOs) imposed at his sentencing should be
stricken because he lacks the ability to pay. We affirm.
FACTS
In early November 2013, McCracken entered a woman’s house, without her knowledge or
permission, through the “doggie door.” Clerk’s Papers (CP) at 23. McCracken entered the house No. 47277-5-II
because he was cold and hungry. McCracken had heard that the woman was frequently out of
town and chose to enter her house hoping she would not be there.
Inside, McCracken ate some candy, drank some juice, used the bathroom, undressed, and
got into the bed in the master bedroom. While he was in bed, he masturbated. McCracken left
before the woman returned home.
When the woman returned home, she discovered stains on her bedding, she contacted the
authorities, who took a sample from stain on the bedding. Testing by the Washington State Patrol
Crime lab showed that the stains were semen with a DNA (deoxyribonucleic acid) profile that
matched McCracken.
McCracken was charged with one count of residential burglary and one count of third
degree malicious mischief. He attempted to plead guilty at his first appearance, but he was not
allowed to do so. Before his arraignment, the State filed an amended information that added a
special allegation of sexual motivation to both charges.
McCracken moved to dismiss the sexual motivation allegations. The State opposed the
motion, arguing that the State was not allowed to dismiss the sexual motivation allegations without
the superior court making specific findings. The State also argued that while there may have been
other reasons for McCracken’s entry and remainder in the home, one of his purposes for remaining
in the home was to “gratify himself sexually” through masturbation. Transcript (Tr.) (Feb. 27,
2104) at 9. The superior court denied McCracken’s motion to dismiss the sexual motivation
allegations.
The case proceeded to a bench trial on stipulated facts. The stipulated facts included a
written statement by McCracken to the court and the police reports setting out the above facts.
2 No. 47277-5-II
Also included was a report of a psychologist and certified sex offender treatment provider who
determined that McCracken’s behavior was not consistent with a crime that was sexually
motivated and McCracken did not meet the description of someone who should register as a sex
offender.
The trial court found McCracken guilty of both counts with sexual motivation for each.
With respect to the malicious mischief with sexual motivation conviction, the trial court found
McCracken “masturbated with the affect [sic] of ejaculation and that was a willful disregard of the
rights of another, privacy rights among other things. Definitely would be vexing and annoying
and injurious. He knowingly and willfully did it and it was wrongfully done without lawful
excuse.” Tr. (Aug. 27, 2014) at 29. The trial court further found, with respect to the residential
burglary with sexual motivation conviction, that McCracken “was damaging sheets while
committing the residential burglary,” and he was sexually motivated when he damaged the sheets.
Tr. (Aug. 27, 2014) at 31.
McCracken was sentenced to an exceptional sentence below the standard range. The
sentencing court also imposed the following LFOs on McCracken: $500 Victim Assessment fee,
a $200 Criminal Filing Fee, and a $100 DNA Collection Fee.
McCracken appeals.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
McCracken argues that there was insufficient evidence to support the element of malice in
his conviction for malicious mischief. He also argues that there was insufficient evidence that he
acted with sexual motivation when he committed the residential burglary. We hold that there is
3 No. 47277-5-II
sufficient evidence to support the malice element in McCracken’s conviction for malicious
mischief, and that there is sufficient evidence to support a finding of sexual motivation on
McCracken’s residential burglary conviction.
a. Legal Principles
To determine whether sufficient evidence supports an adjudication, we view the evidence,
along with all reasonable inferences that may be drawn from the evidence, in the light most
favorable to the State and determine whether any rational fact finder could have found the crime’s
elements beyond a reasonable doubt. State v. Drum, 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010).
Following a bench trial, our review is limited to determining whether substantial evidence supports
the challenged findings and, if so, whether the findings support the conclusions of law. State v.
Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). Unchallenged findings of fact are verities
on appeal, and a trial court’s conclusions of law are reviewed de novo. Id.; State v. Gatewood,
163 Wn.2d 534, 539, 182 P.3d 426 (2008).
b. Malice—Malicious Mischief
RCW 9A.48.090 codifies Washington’s proscription of third degree malicious mischief.
In pertinent part, the statute states, “A person is guilty of malicious mischief in the third degree if
he or she . . . [k]nowingly and maliciously causes physical damage to the property of another,
under circumstances not amounting to malicious mischief in the first or second degree.” RCW
9A.48.090(1)(a). “Malice” and “maliciously” are defined as “an evil intent, wish, or design to
vex, annoy, or injure another person.” RCW 9A.04.110(12). The definition also includes a
permissive inference that says, “Malice may be inferred from an act done in willful disregard of
4 No. 47277-5-II
the rights of another, or an act wrongfully done without just cause or excuse.” RCW
9A.04.110(12).
McCracken argues the trial court erred by relying on the permissive inference as a
mandatory presumption. But, the record shows that sufficient evidence supports the trial court’s
finding that McCracken’s actions met the definition for malice without relying on any inference.
The trial court found that McCracken’s staining the woman’s sheets was “vexing and
annoying and injurious.” Tr. (Aug. 27, 2014) at 29. The definition of malice includes actions
done with “evil intent, wish, or design to vex, annoy, or injure another person.” RCW
9A.04.110(12). We hold that, when viewed in the light most favorable to the State along with the
reasonable inferences that follow, the evidence that McCracken entered the woman’s home
without permission, ate her food, drank her juice, used her bathroom, and then masturbated and
ejaculated on her bed is sufficient to support the trial court’s finding that these actions were done
with an evil intent, wish, or design to vex, annoy or injure. Surely, even if there was no evil intent,
the act of entering someone’s home without permission, eating and drinking her property, using
her bathroom, and then soiling her bedding could be reasonably construed as a design to vex, annoy
or injure. Therefore, the record supports the trial court’s finding that the element of malice had
been proven.
However, even if the trial court improperly relied on an inference and treated the
permissive inference as a mandatory presumption, we hold that an inference of malice was
appropriate. “A permissive inference suggests to the jury a possible conclusion to be drawn if the
State proves predicate facts, but does not require the jury to draw that conclusion.” State v. Ratliff,
46 Wn. App. 325, 330, 730 P.2d 716 (1986), review denied, 108 Wn.2d 1002 (1987). “A
5 No. 47277-5-II
permissive inference is valid when there is a ‘rational connection’ between the proven fact and the
inferred fact, and the inferred fact flows ‘more likely than not’ from the proven fact.” Id. at 330-
31 (quoting County Court of Ulster County v. Allen, 442 U.S. 140, 165, 99 S. Ct. 2213, 60 L. Ed.
2d 777 (1979).
In Ratliff, Division One considered “whether the trial court erred in instructing the jury that
it could infer malice ‘from an act done in willful disregard of the rights of another.’” 46 Wn. App.
at 329-30 (quoting jury instructions). There, police officers left Ratliff in the back of a police van
for approximately 15 minutes unattended and when they returned, they found Ratliff had broken
the window between the holding area and the cab of the van. Id. at 326. They saw that the radio
was damaged and an officer’s jacket was pulled through the window. Id. at 326. Ratliff was
convicted of second degree malicious mischief. Id. at 327.
The court explained that the jury instruction was proper because there was a “rational
connection” between the proven facts of that case and an inference of malice:
Ratliff admitted on cross examination that he continued to pull radio wires loose after he did not succeed in bringing the radio towards him. He stated that he continued to pull at the wires because he “was frustrated.” Furthermore, the officers testified that one of their jackets had been pulled through the window into the prisoner holding area, a situation more consistent with malicious intent than with Ratliff’s claims that he wanted to use the radio to call help.
Id. at 330-31. In conclusion, the court held that “the inference of malice flows more likely than
not from the conduct of the defendant.” Id. at 331.
Here, the same conclusion is appropriate. The evidence shows that McCracken entered the
house without permission when the woman was not there because he was cold and hungry.
McCracken then proceeded to eat candy and drink juice belonging to the woman without her
6 No. 47277-5-II
permission. Finally, after using her bathroom, he crawled into the woman’s bed, and then
masturbated and ejaculated on the woman’s bedding. Based on this evidence, an inference of
malice flows more likely than not from McCracken’s actions.
Sufficient evidence supports the trial court’s finding of malice. McCracken’s challenge
fails.
c. Sexual Motivation—Residential Burglary
McCracken next argues there was insufficient evidence to prove he committed the
residential burglary with sexual motivation because the State could not prove beyond a reasonable
doubt that he committed the crime of residential burglary for the purpose of sexual gratification.
We disagree.
“A person is guilty of residential burglary if, with intent to commit a crime against a person
or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.”
RCW 9A.52.025(1). “‘Sexual motivation’ means that one of the purposes for which the defendant
committed the crime was for the purpose of his or her sexual gratification.” RCW 9.94A.030(47).
“[T]he State must prove beyond a reasonable doubt that the defendant committed the crime for the
purposes of sexual gratification,” and “[i]t must do so with evidence of identifiable conduct by the
defendant while committing the offense.” State v. Vars, 157 Wn. App. 482, 494, 237 P.3d 378
(2010).1
1 In analyzing the former juvenile counterpart to RCW 9.94A.030(47), our Supreme Court agreed that “‘the statute makes sexual motivation manifested by the defendant’s conduct in the course of committing a felony an aggravating factor in sentencing.’” State v. Halstien, 122 Wn.2d 109, 120, 857 P.2d 270 (1993) (quoting State v. Halstien, 65 Wn. App. 845, 853, 829 P.2d 1145 (1992)).
7 No. 47277-5-II
As McCracken acknowledges, “There is . . . sufficient evidence of burglary because the
stipulated facts show that [he] entered and remained unlawfully with intent to commit theft of food
and drink.” Br. of Appellant at 13. But there is also evidence that McCracken remained unlawfully
in the woman’s dwelling to masturbate in her bed. And the stipulated fact that McCracken
masturbated and ejaculated in the woman’s bed while remaining unlawfully in her house is
“evidence of identifiable conduct . . . while committing the offense.” Vars, 157 Wn. App. at 494.
The trial court found sexual motivation based on McCracken “damaging sheets while committing
the residential burglary” and being sexually motivated when he damaged the sheets. Tr. (Aug. 27,
2014) at 31. Thus, the stipulated facts support the trial court’s finding that one purpose McCracken
remained unlawfully in the house was for his sexual gratification. Therefore, there is substantial
evidence to allow a rational fact finder to find that McCracken committed residential burglary with
sexual motivation beyond a reasonable doubt. See Drum, 168 Wn.2d at 34-35. McCracken’s
challenge fails.
B. STATE’S AUTHORITY TO WITHDRAW SEXUAL MOTIVATION ALLEGATIONS
McCracken argues that because the prosecutor erroneously believed that the State could
not withdraw the sexual motivation allegations, we should remand the case for further proceedings
so that the prosecution has an opportunity to withdraw the sexual motivation allegations. We
disagree.
The charging statute on the sexual motivation allegation is as follows:
(1) The prosecuting attorney shall file a special allegation of sexual motivation in every criminal case, felony, gross misdemeanor, or misdemeanor, other than sex offenses as defined in RCW 9.94A.030 when sufficient admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense
8 No. 47277-5-II
that could be raised under the evidence, would justify a finding of sexual motivation by a reasonable and objective fact finder.
(2) In a criminal case wherein there has been a special allegation the state shall prove beyond a reasonable doubt that the accused committed the crime with a sexual motivation. The court shall make a finding of fact of whether or not a sexual motivation was present at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to whether or not the defendant committed the crime with a sexual motivation. This finding shall not be applied to sex offenses as defined in RCW 9.94A.030.
(3) The prosecuting attorney shall not withdraw the special allegation of sexual motivation without approval of the court through an order of dismissal of the special allegation. The court shall not dismiss this special allegation unless it finds that such an order is necessary to correct an error in the initial charging decision or unless there are evidentiary problems which make proving the special allegation doubtful.
RCW 9.94A.835.
Our Supreme Court held in State v. Rice, 174 Wn.2d 884, 897, 279 P.3d 849 (2012), that
the legislature, despite its use of the word “shall,” intended the charging of a sexual motivation
aggravator to be a discretionary function of the prosecutor. The Court explained that a prosecutor’s
decision to charge a special allegation, when one is available, depends on “the facts and
circumstances of each case and the prosecutor’s own policies and priorities,” and is, therefore,
necessarily a discretionary function of his office. Id. at 902.
Here, even if the prosecutor mistakenly believed that the State had no authority to withdraw
the sexual motivation allegations, there is no evidence that the State would have otherwise
withdrawn the allegations. Instead, the record shows that the State amended the information to
add the sexual motivation allegations and then opposed the motion to dismiss the sexual motivation
allegations. The State argued that McCracken committed the residential burglary when he
unlawfully remained in the house to “gratify himself sexually” through masturbation. Tr. (Feb.
9 No. 47277-5-II
27, 2104) at 9. Thus, regardless of the understanding of the State’s authority to do so, the record
fails to support the argument or inference that the prosecutor intended to withdraw the sexual
motivation allegations. Therefore, we decline McCracken’s request to remand this case to give
the prosecutor a second chance to remove the sexual motivation allegations.
C. LEGAL FINANCIAL OBLIGATIONS
McCracken argues that his LFOs should be stricken because he lacks the ability to pay.
We decline to review the issue because McCracken raises it for the first time on appeal, and even
if we were to grant review, only mandatory LFOs were imposed, and the sentencing court is not
required to make an ability-to-pay inquiry before imposing mandatory LFOs. See RAP 2.5(a);
State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680 (2015) (holding that a defendant who fails to
object to the imposition of LFOs at sentencing is not automatically entitled to review.); State v.
Duncan, No. 90188-1, 2016 WL 1696698 (Wash. April 28, 2016), at *2-3 (affirming the appellate
court’s decision to decline review of the imposition of LFOs that were not objected to at the
sentencing court); see also State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013) (holding
that the legislature expressly directed that an ability to pay analysis not be considered when
imposing victim restitution, victim assessment fees, DNA fees, and criminal filing fees); State v.
Mathers, No. 47523-5-II, 2016 WL 2865576 (Wash. Ct. App. May 10, 2016) *4 (holding that
sentencing courts do not need to conduct an ability to pay analysis before imposing victim
assessment fees or DNA fees).
In summary, we hold that (1) sufficient evidence supports the trial court’s finding of malice
and sexual motivation; (2) regardless of any understanding regarding the State’s authority, there is
no evidence the State intended to withdraw the sexual motivation allegations; and (3) McCracken’s
10 No. 47277-5-II
argument against the imposition of LFOs is without merit. Accordingly, 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.
Lee, J. We concur:
Johanson, P.J.
Sutton, J.