IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 78934-1-I
Respondent,
v. ) UNPUBLISHED OPINION MICHAEL WAYNE ZICK, ) ) FILED: February 3, 2020 Appellant.
VERELLEN, J. — Michael Zick appeals his conviction for first degree
malicious mischief. Zick broke 44 windows at a post office during business hours,
while people were inside. He told police that breaking the windows was his form
of protest against the federal government. The State presented sufficient
evidence of Zick’s malice through testimony that he knowingly damaged property
with the intent to vex, annoy, or injure the people inside the post office.
In jury instruction 10, the court instructed the jury: “Malice may be, but is not
required to be, inferred from an act done in willful disregard of the rights of
another.”1 The court did not abuse its discretion by allowing the jury to make this
permissible inference because the inferred fact, Zick’s malicious intent, flows
Clerk’s Papers at 19. No. 78934-1-1/2
“more likely than not” from the proven fact that Zick broke the windows at the post
office during business hours, while people were inside.
At sentencing, for the first time, Zick mentioned hearing voices. The court
did not abuse its discretion by not sua sponte ordering a mental health evaluation
to address Zick’s competency because there was no evidence that Zick lacked the
capacity to understand the nature of the proceedings or to assist in his defense.
The court also imposed a $500 victim penalty assessment. Because Zick’s
sole source of income is federal disability benefits, the sentence must be amended
to prohibit the collection of the assessment from those benefits.
Therefore, we affirm but remand for the trial court to revise the sentence to
indicate that the crime victim assessment may not be satisfied out of Zick’s
disability income.
FACTS
On April 28, 2018, Zick broke 44 windows at a post office in Bellingham.
The State charged Zick with first degree malicious mischief. The jury convicted
Zick as charged. The court sentenced Zick to 36 months’ incarceration and
imposed a $500 victim penalty assessment.
Zick appeals.
ANALYSIS
I. Sufficiency of the Evidence
Zick contends there was insufficient evidence of malice to sustain his
conviction for malicious mischief.
2 No. 78934-1-1/3
We review sufficiency of the evidence de novo.2 “Under both the federal
and state constitutions, due process requires that the State prove every element of
a crime beyond a reasonable doubt.”3 To determine whether there is sufficient
evidence to sustain a conviction, we view the evidence in the light most favorable
to the State and ask whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.4 “A claim of
insufficiency admits the truth of the State’s evidence and all inferences that
reasonably can be drawn therefrom.”5
“A person is guilty of malicious mischief in the first degree if he orshe
knowingly and maliciously. . . [clauses physical damage to the property of
another.”6 ROW 9A.04.1 10(12) defines “malice and maliciously” as “an evil intent,
wish, or design to vex, annoy, or injure another person. Malice may be inferred
from an act done in willful disregard of the rights of another, or an act wrongfully
done without just cause or excuse, or an act or omission of duty betraying a willful
disregard of social duty.”
2 State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016)). ~ State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d 507 (2017) (citing U.S. CONST. AMEND. XIV; WASH. CONST. art. I, § 3; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Rich, 184 Wn.2d at 903). ~ State v. Elmi, 166 Wn.2d 209, 214, 207 P.3d 439 (2009). ~ State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 6 ROW 9A.48.070(1)(a).
3 No. 78934-1-1/4
Here, Zick told police breaking the windows at the post office “was his form
of protest against the U.S. government that he felt let him down when he was 12
years old.”7 Zick told police he chose the post office because “it represents the
government” and “[h]e pointed to the U.S. flag.”8 He also told the police that he
was “fully” aware that what he was doing was wrong.9
Zick argues the State failed to show he acted with malice toward another
person because the federal government does not constitute a person.
RCW 9A.04.11O(8) defines “government” as “any branch, subdivision, or agency
of the government of this state and any county, city, district, or other local
government unit.” And RCW 9A.04.1 10(17) defines “person” as “any natural
person and, where relevant, a corporation, joint stock association, or an
unincorporated association.”
However, our Supreme Court has acknowledged, in dicta, “that statutes
defining ‘malicious mischief’ do not require damage to the property of an intended
victim.”10 It is sufficient for the State to prove the defendant damaged the property
of another with the intent to vex, annoy, or injure someone.11
~ Report of Proceedings (RP) (Aug. 28, 2018) at 131. 8 Id. 9ki.at 132. 10 State v. Wooten, 178 Wn.2d 890, 897 n.6, 312 P.3d 41(2013) (emphasis omitted). 11 kI. (citing RCW 9A.48.070; RCW 9A.04.1 10(12)).
4 No. 78934-1-1/5
Here, the State proved Zick damaged property by breaking the windows at
the post office during business hours, while people were inside. Zick broke
windows for a few minutes.12 After the third or fourth window, “most of the people
in the lobby were panicking.”13 Some people ran outside. He continued to break
the windows, even after some people panicked and fled. This is sufficient
evidence that Zick intended to vex, annoy, or injure the people inside the post
office.
Without deciding whether the government may constitute a “person” under
RCW 9A.48.070(1)(a), the evidence established Zick knowingly damaged property
with the intent to vex, annoy, or injure the people inside the post office. The State
presented sufficient evidence to sustain Zick’s conviction for first degree malicious
mischief.
II. Jury Instruction 10
Zick argues the court improperly instructed the jury that it could infer malice
from wrongful conduct.
Generally, we review instructional errors de novo.14 However, “[i]f a jury
instruction correctly states the law, the trial court’s decision to give the instruction
will not be disturbed absent an abuse of discretion.”15 “Jury instructions satisfy the
~ RP (Aug.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 78934-1-I
Respondent,
v. ) UNPUBLISHED OPINION MICHAEL WAYNE ZICK, ) ) FILED: February 3, 2020 Appellant.
VERELLEN, J. — Michael Zick appeals his conviction for first degree
malicious mischief. Zick broke 44 windows at a post office during business hours,
while people were inside. He told police that breaking the windows was his form
of protest against the federal government. The State presented sufficient
evidence of Zick’s malice through testimony that he knowingly damaged property
with the intent to vex, annoy, or injure the people inside the post office.
In jury instruction 10, the court instructed the jury: “Malice may be, but is not
required to be, inferred from an act done in willful disregard of the rights of
another.”1 The court did not abuse its discretion by allowing the jury to make this
permissible inference because the inferred fact, Zick’s malicious intent, flows
Clerk’s Papers at 19. No. 78934-1-1/2
“more likely than not” from the proven fact that Zick broke the windows at the post
office during business hours, while people were inside.
At sentencing, for the first time, Zick mentioned hearing voices. The court
did not abuse its discretion by not sua sponte ordering a mental health evaluation
to address Zick’s competency because there was no evidence that Zick lacked the
capacity to understand the nature of the proceedings or to assist in his defense.
The court also imposed a $500 victim penalty assessment. Because Zick’s
sole source of income is federal disability benefits, the sentence must be amended
to prohibit the collection of the assessment from those benefits.
Therefore, we affirm but remand for the trial court to revise the sentence to
indicate that the crime victim assessment may not be satisfied out of Zick’s
disability income.
FACTS
On April 28, 2018, Zick broke 44 windows at a post office in Bellingham.
The State charged Zick with first degree malicious mischief. The jury convicted
Zick as charged. The court sentenced Zick to 36 months’ incarceration and
imposed a $500 victim penalty assessment.
Zick appeals.
ANALYSIS
I. Sufficiency of the Evidence
Zick contends there was insufficient evidence of malice to sustain his
conviction for malicious mischief.
2 No. 78934-1-1/3
We review sufficiency of the evidence de novo.2 “Under both the federal
and state constitutions, due process requires that the State prove every element of
a crime beyond a reasonable doubt.”3 To determine whether there is sufficient
evidence to sustain a conviction, we view the evidence in the light most favorable
to the State and ask whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.4 “A claim of
insufficiency admits the truth of the State’s evidence and all inferences that
reasonably can be drawn therefrom.”5
“A person is guilty of malicious mischief in the first degree if he orshe
knowingly and maliciously. . . [clauses physical damage to the property of
another.”6 ROW 9A.04.1 10(12) defines “malice and maliciously” as “an evil intent,
wish, or design to vex, annoy, or injure another person. Malice may be inferred
from an act done in willful disregard of the rights of another, or an act wrongfully
done without just cause or excuse, or an act or omission of duty betraying a willful
disregard of social duty.”
2 State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016)). ~ State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d 507 (2017) (citing U.S. CONST. AMEND. XIV; WASH. CONST. art. I, § 3; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Rich, 184 Wn.2d at 903). ~ State v. Elmi, 166 Wn.2d 209, 214, 207 P.3d 439 (2009). ~ State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 6 ROW 9A.48.070(1)(a).
3 No. 78934-1-1/4
Here, Zick told police breaking the windows at the post office “was his form
of protest against the U.S. government that he felt let him down when he was 12
years old.”7 Zick told police he chose the post office because “it represents the
government” and “[h]e pointed to the U.S. flag.”8 He also told the police that he
was “fully” aware that what he was doing was wrong.9
Zick argues the State failed to show he acted with malice toward another
person because the federal government does not constitute a person.
RCW 9A.04.11O(8) defines “government” as “any branch, subdivision, or agency
of the government of this state and any county, city, district, or other local
government unit.” And RCW 9A.04.1 10(17) defines “person” as “any natural
person and, where relevant, a corporation, joint stock association, or an
unincorporated association.”
However, our Supreme Court has acknowledged, in dicta, “that statutes
defining ‘malicious mischief’ do not require damage to the property of an intended
victim.”10 It is sufficient for the State to prove the defendant damaged the property
of another with the intent to vex, annoy, or injure someone.11
~ Report of Proceedings (RP) (Aug. 28, 2018) at 131. 8 Id. 9ki.at 132. 10 State v. Wooten, 178 Wn.2d 890, 897 n.6, 312 P.3d 41(2013) (emphasis omitted). 11 kI. (citing RCW 9A.48.070; RCW 9A.04.1 10(12)).
4 No. 78934-1-1/5
Here, the State proved Zick damaged property by breaking the windows at
the post office during business hours, while people were inside. Zick broke
windows for a few minutes.12 After the third or fourth window, “most of the people
in the lobby were panicking.”13 Some people ran outside. He continued to break
the windows, even after some people panicked and fled. This is sufficient
evidence that Zick intended to vex, annoy, or injure the people inside the post
office.
Without deciding whether the government may constitute a “person” under
RCW 9A.48.070(1)(a), the evidence established Zick knowingly damaged property
with the intent to vex, annoy, or injure the people inside the post office. The State
presented sufficient evidence to sustain Zick’s conviction for first degree malicious
mischief.
II. Jury Instruction 10
Zick argues the court improperly instructed the jury that it could infer malice
from wrongful conduct.
Generally, we review instructional errors de novo.14 However, “[i]f a jury
instruction correctly states the law, the trial court’s decision to give the instruction
will not be disturbed absent an abuse of discretion.”15 “Jury instructions satisfy the
~ RP (Aug. 28, 2018) at 116 (‘I figured it would be helpful to take a 12
video of it. [s]o I taped for probably five minutes.”) . .
13kLatat 104. 14 State v. Stacy, 181 Wn. App. 553, 568, 326 P.3d 136 (2014).
1~ Id. at 569.
5 No. 78934-1-1/6
fair trial requirement when, taken as a whole, they properly inform the jury of the
law, are not misleading, and permit the parties to argue their theories of the
case. “16
Here, in jury instruction 10, the court instructed the jury: “Malice and
maliciously mean an evil intent, wish, or design to vex, annoy, or injure another
person. Malice may be, but is not required to be, inferred from an act done in
willful disregard of the rights of another.”17 This language is contained in the
statutory definition of “malice” and “maHciously.”18 Zick does not argue jury
instruction 10 misstates the law. And the parties agree the second sentence of
jury instruction 10 sets out a permissive inference.19 “A 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.”2° Zick
argues the second sentence of jury instruction 10 should have been excluded
because there was no rational connection between him breaking the windows and
a malicious intent.
16Statev. Morgan, 123 Wn.App. 810,814-15,99 P.3d 411 (2004). 17 Clerk’s Papers at 19.
18 RCW9A.04.110(12). 19 See Appellant’s Br. at 14; Resp’t’s Br. at 21; see also State v. Ratliff, 46 Wn. App. 325, 330, 730 P.2d 716 (1986) (“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.”). 20 Ratliff, 46 Wn. App. at 330-31.
6 No. 78934-1 -117
As stated above, the evidence shows that Zick broke 44 windows at the
post office during business hours, while people were inside. Zick broke windows
for a few minutes. He continued to break the windows, even after some people
panicked and fled.
The inferred fact, Zick’s malicious intent, flows “more likely than not” from
the proven fact that Zick broke the windows at the post office during business
hours, while people were inside. The court did not abuse its discretion when it
instructed the jury that it could infer malice from wrongful conduct.
III. Competency
Zick contends the court abused its discretion because it did not sua sponte
order a competency evaluation. We review whether a trial court should have sua
sponte ordered a competency evaluation for abuse of discretion.21
The due process clause of the Fourteenth Amendment guarantees an
accused person the fundamental right not to stand trial, including sentencing,
unless legally competent.22 A defendant is incompetent if they “lack[ j the capacity
to understand the nature of the proceedings against him or her or to assist in his or
her own defense as a result of mental disease or defect.”23
21 State v. McCarthy, 193 Wn.2d 792, 803, 446 P.3d 167 (2019). 22 State v. Ortiz-Abreqo, 187 Wn.2d 394, 403, 387 P.3d 638 (2017); see also RCW 10.77.050 (“No incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues.”). 23 RCW 10.77.010(15).
7 No. 78934-1-1/8
Under RCW 10.77.060, “[wjhenever there is reason to doubt a defendant’s
competency to stand trial, the court must order an expert to evaluate the
defendant’s mental condition.”24 If the issue of competency is “fairly debatable,”
failure to order an evaluation does not violate RCW 10.77.060 and does not
constitute an abuse of the court’s discretion.25
Here, at sentencing, the court provided Zick an opportunity to make a
statement about his case. For the first time, Zick mentioned hearing voices.
For the last eight years I’ve just been subjected to some kind of people blasting their voices in my head. I can’t understand what they are saying. I can’t hear what they are saying. All day, every day, 24- 7, without respite, without losing, and it’s driven me absolutely bonkers. I mean, it’s just a throbbing in my head with the voices just not letting me know what’s going on, what they are saying and saying my name and other people’s names in my life and it’s really been hard.[26]
In response, the court asked whether it should order a mental health
examination.
I’m sympathetic to Mr. Zick’s description of the voices that he hears and how hard it is for him to function in that way with those voices. I know that there was not an issue of competency or sanity in this trial, but given his comments about the voices I’m wondering if a mental health examination by the Department of Corrections and appropriate treatment, if any, would be helpful to Mr. Zick.
24 State v. Coley, 180 Wn.2d 543, 552, 326 P.3d 702 (2014) (citing RCW 10.77.060). 25 McCarthy, 193 Wn.2d at 803 (quoting State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012)). 26 RP (Sept. 5, 2018) at 185-86.
8 No. 78934-1-1/9
I’m not going to order that if there is an objection, but if the parties believe that would be helpful and Mr. Zick agrees, I’ll make that part of the sentence.~27~
Zick’s defense counsel indicated, “Mr. Zick would like it not to be ordered,
please.”28
Given this evidence, there was no reason for the court to doubt Zick’s
competency. Although he complained of hearing voices, there is no evidence that
Zick lacked the capacity to understand the nature of the proceedings or to assist in
his own defense.
The court did not abuse its discretion when it failed to order a mental health
evaluation.
IV. Legal Financial Obligations
In the judgment and sentence, the trial court imposed a $500 victim penalty
assessment. Zick’s sole source of income is federal disability. Zick argues, and
the State concedes, because Zick’s sole source of income is federal disability
benefits, the judgment and sentence must be amended to prohibit the collection of
legal financial obligations from those benefits.29
27~I.at 200. 28 Id.
29 State v. Catling, 193 Wn.2d 252, 266, 438 P.3d 1174 (2019) ([W]e affirm the imposition of the $500 crime victim fund assessment but remand to the trial court to revise the judgment and sentence . to indicate that this [legal financial . .
obligation] may not be satisfied out of any funds subject to the Social Security Act’s antiattachment statute.”); .~ 42 U.S.C.A. §~ 401 and 407 (federal disability payments are subject to the antiattachment statute).
9 No. 78934-1-1/10
Therefore, we affirm but remand for the trial court to revise the sentence to
indicate that the crime victim assessment may not be satisfied out of Zick’s
WE CONCUR: