State Of Washington, V. Shane Brown

• Court: Court of Appeals of Washington
• Decided: July 26, 2021
• Docket: 80943-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 80943-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION SHANE MATHEW BROWN,

Appellant.

APPELWICK, J. — Brown appeals from a judgment and sentence for

interfering with domestic violence reporting and violation of a no-contact order.

First, he argues he was denied his right to a unanimous jury. Next, he argues the

court admitted out-of-court statements in violation of his right to confront his

accuser. Further, he argues the court erred in imposing no-contact orders for his

children. Finally, he argues the order of restitution should be vacated. We remand

for reconsideration of the no-contact orders, and otherwise affirm.

FACTS

Paula Goebel and Shane Brown have two minor children together. On

March 2, 2019, Goebel called the 911 emergency system. Goebel told the

operator, “He keeps following me!” and “Help me!” On the call recording, a male

voice can be heard saying, “Give me the phone.”

Responding officers found Goebel and her two children on the sidewalk.

She told police that before fleeing, Brown followed her, pushed her and her child

down, threatened to kill her, and stole her phone. She let them know there was an No. 80943-1-I/2

existing no-contact order between her and Brown. Later, medics arrived to treat

Goebel.

Police located Brown a quarter mile away. They handcuffed and searched

him, recovering one phone.

Brown was charged with interfering with the reporting of a crime of domestic

violence, robbery in the second degree, and felony violation of a no-contact order.

At trial, he testified that he was riding the bus that day when he was approached

by his children, and that an argument occurred between him and Goebel. He

exited the bus, returning to the bus stop 20 to 30 minutes later. There, he saw his

family on a bench and claimed Goebel asked to borrow his phone. When he heard

her stating her location and that he was “offending her,” he began telling her to

give him the phone. He said Goebel threw his phone to the ground, which he

retrieved before running away. He denied assaulting Goebel.

Goebel did not testify at trial. The court allowed her out-of-court statements

to be admitted via police body-worn camera footage and a recording of the 911

emergency service system call.

The jury acquitted Brown of robbery in the second degree, but found him

guilty of the other two charges. The court imposed no-contact orders for his

children. Following a restitution hearing, it also ordered him to pay Goebel

restitution for her lost cell phone.

Brown appeals.

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DISCUSSION

First, Brown argues he was denied his right to a unanimous jury. Next, he

argues the court admitted the victim’s statements in violation of his right to confront

his accuser. Third, he argues the court erred in imposing no-contact orders barring

him from any contact with his minor children for five years. Finally, he argues the

order of restitution should be vacated because it was unsupported by substantial

credible evidence.

I. Unanimous Jury

Brown argues the conviction for interfering with domestic violence reporting

violated his right to a unanimous jury. He argues substantial evidence did not

support each of the means of accomplishing the offense.

Criminal defendants have the right to a unanimous jury verdict. W ASH.

CONST. art. I, § 21; State v. Sandholm, 184 Wn.2d 726, 732, 364 P.3d 87 (2015).

In alternative means cases, where the criminal offense can be committed in more

than one way, an expression of jury unanimity is not required provided each

alternative means presented to the jury is supported by sufficient evidence. Id.

But, when insufficient evidence supports one or more of the alternative means

presented to the jury, the conviction will not be affirmed. Id. We review the

sufficiency of the evidence de novo. State v. Berg, 181 Wn.2d 857, 867, 337 P.3d

310 (2014).

Interfering with the reporting of a crime of domestic violence is an alternate

means crime. See State v. Nonog, 145 Wn. App. 802, 812-13, 187 P.3d 335

(2008), aff’d, 169 Wn.2d 220, 237 P.3d 250 (2010). A person may interfere with

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domestic violence reporting by committing a crime of domestic violence, and

preventing or attempting to prevent the victim from: (1) calling a 911 emergency

communication system, (2) obtaining medical assistance, or (3) making a report to

any law enforcement official. RCW 9A.36.150(a), (b). The jury was instructed on

all three means, so each must be supported by substantial evidence.

Brown argues the evidence did not support the alternative means of “calling

a 911 emergency communication system” or “obtaining medical assistance.” RCW

9A.36.150(b). He notes that Goebel successfully called 911. But, this is irrelevant,

attempt alone is criminalized under the statute. Id. The statute does not

distinguish between placing a call to 911 and continuing to carry on the

communication that was the purpose of that call. Id. And, the call evidenced

Brown’s interference. On the call, scuffling could be heard, as well as Goebel

saying, “‘Leave me alone’” and “‘[S]top following me.’” At trial, Brown admitted he

was the voice at the beginning of the call saying, “‘Give me the phone’” to Goebel.

He testified that, at least initially, she would not give him the phone. He testified

to hearing her on the phone relaying her location and that he was offending her.

The jury also heard statements from Goebel to police that Brown took the phone

and ran away. There was sufficient evidence for it to conclude Brown prevented

or attempted to prevent her from calling 911.

Next, Brown contends Goebel did not attempt to obtain medical assistance

because she did not report her injuries or directly request medical assistance to

the 911 operator. The interference statute contains no such requirement that the

communication be completed. See id. This is not surprising since the interference

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or attempted interference with the communication with 911 may prevent the victim

from doing so.

When officers contacted Goebel, they noted she was crying. The jury heard

Officer Todd Olson describe Goebel holding her hand as he approached. It was

able to observe this on police bodycam footage. It heard Goebel’s statements that

Brown had knocked her to the ground, causing injury. It heard Officer Michael

Drazio describe admitted photographs of injuries to Goebel’s right knee from being

thrown to the ground. The jury was entitled to infer from the evidence that Goebel

was prevented from communicating the injury and a request for medical

assistance. This evidence was sufficient to support Brown’s conviction for

interference by preventing or attempting to prevent a victim from seeking medical

assistance.

We hold that Brown’s right to a unanimous jury was not violated.

II. Confrontation Clause

Next, Brown argues admitting Goebel’s out-of-court statements to police

violated his right to confront his accuser.

The constitutional right of an accused person to confront witnesses against

them bars the use of out-of-court statements as a substitute for live testimony.

Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004); U.S. CONST. amend. VI; CONST. art. I, § 22. The confrontation clause

forbids the use of “testimonial” out-of-court statements at trial unless the defendant

had the opportunity to confront the person who made the statement, and that

person is unavailable to testify. See Crawford, 541 U.S. at 68. We review

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confrontation clause violation claims de novo. State v. Koslowski, 166 Wn.2d 409,

417, 209 P.3d 479 (2009).

Statements are nontestimonial when made in the course of a police

interrogation under circumstances objectively indicating the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. Davis

v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

“In the end, the question is whether, in light of all the circumstances, viewed

objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-

court substitute for trial testimony.’” Ohio v. Clark, 576 U.S. 237, 245, 135 S. Ct.

2173, 192 L. Ed. 2d 306 (2015) (alteration in original) (quoting Michigan v. Bryant,

562 U.S. 344, 358, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011)).

Here, Goebel did not testify at trial. The court admitted Goebel’s statements

to police via body-worn camera footage. It excluded everything beyond the point

when officers started checking on the no-contact order and Goebel’s medical

condition, stating the inquiry transitioned from being nontestimonial and the

emergency began to dissipate.

Brown argues Goebel’s statements to police at the scene that were

admitted were testimonial. He argues they were conducted after the incident had

ended and no ongoing emergency existed.

Upon arrival, officers ask Goebel, “What’s going on?” In her 911 call,

Goebel had not communicated Brown’s criminal history or what threat level he

posed. Brown was still at large. Police did not know Brown’s identity, if he would

arrive again on the scene, or what they would encounter if they located him. Their

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questions largely centered on identifying the assailant, such as his name and

birthdate. Police were then able to run this information through their database to

ascertain “whether they would be encountering a violent felon.” Davis, 547 U.S.

at 827-28 (holding a 911 operator’s effort to identify an assailant was necessary to

enable responding officers to meet an ongoing emergency).

In Bryant, where police arrived on the scene of a shooting by an unknown

suspect, questions about “what had happened” were held to be necessary to allow

the police to “‘assess the situation, the threat to their own safety, and possible

danger to the potential victim.’” Bryant, 562 U.S. at 376 (quoting Davis, 547 U.S.,

at 832).

Viewed objectively, the primary purpose of police questioning in the

beginning of the contact was to meet an ongoing emergency. The admittance of

Goebel’s statements did not violate Brown’s Sixth Amendment right to confront his

accuser.

III. No-Contact Orders

Brown asserts the trial court erred by imposing no-contact orders for his

children without analyzing on the record the need for such orders and considering

less restrictive alternatives.

This court reviews the imposition of sentencing conditions for an abuse of

discretion. In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374, 229 P.3d 686

(2010). Applying the wrong legal standard is an abuse of discretion. State v. Lord,

161 Wn.2d 276, 284, 165 P.3d 1251 (2007).

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Parents have a fundamental liberty interest in the care, custody, and control

of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L.

Ed. 2d 599 (1982). Sentencing conditions that interfere with fundamental rights

must be reasonably necessary to achieve a compelling state interest. State v.

Ancira, 107 Wn. App. 650, 654, 27 P.3d 1246 (2001). The State concedes that

the trial court did not apply the correct legal standard in issuing the no-contact

orders. Its concession is well taken.

We remand to the sentencing court for reconsideration of the terms of the

no-contact orders.

IV. Restitution

Finally, Brown argues the order of restitution was not supported by

substantial, credible evidence. The order of restitution shall be based on easily

ascertainable damages for injury to or loss of property, actual expenses incurred

for treatment for injury to persons, and lost wages resulting from injury. RCW

9.94A.753(3). Trial courts are granted broad powers of restitution by the

legislature. State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007). Restitution

is permitted for losses that are causally connected to the crime. State v. Griffith,

164 Wn.2d 960, 965-66, 195 P.3d 506 (2008). Generally, losses are causally

connected if, but for the charged crime, the victim would not have incurred the loss.

Id. at 966. Evidence supporting restitution is sufficient if it affords a reasonable

basis for estimating loss and does not subject the trier of fact to mere speculation

or conjecture. State v. Fleming, 75 Wn. App. 270, 274-75, 877 P.2d 243 (1994),

overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct.

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2546, 165 L. Ed. 2d 466 (2006). A trial court’s restitution order will not be disturbed

on appeal absent an abuse of discretion. State v. Deskins, 180 Wn.2d 68, 77, 322

P.3d 780 (2014).

The court ordered Brown to pay restitution to Goebel in the amount of

$132.59 for her cell phone. In its order, the court,

noted the [d]efendant’s objection, i.e.[,] that the jury acquitted the [d]efendant of the property-related offense in Count 1 (Robbery). However, the [c]ourt overruled the objection and concluded that based on the evidence presented at trial, there was a causal connection between the [d]efendant’s conduct and the disappearance of the victim’s cell phone.

That the jury acquitted Brown of robbery does not foreclose the possibility

that there was a causal connection between the loss of Goebel’s phone and the

crimes for which Brown was convicted. The jury instructions for robbery required

it to find not only that Brown took Goebel’s phone, but that he took it “against her

will with use or threatened use of immediate force, violence, or fear of injury.”

Regardless of the jury’s reasons for acquittal on robbery, the relevant question is

whether sufficient evidence demonstrated that but for Brown’s crimes of conviction,

Goebel would not have incurred the loss of her phone. See Griffith, 164 Wn.2d at

966.

The 911 call is evidence she was in possession of a phone. In her victim

impact statement, Goebel said that he “stole [her] phone and ran off.” This

matched her statements on police video admitted at trial that Goebel had taken

her phone. The jury verdict necessarily supports that he interfered with the call.

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There was sufficient evidence to conclude that Goebel’s phone was gone as a

result of Brown’s interference.

The amount of restitution was also reasonably inferred from the evidence.

Goebel signed a victim loss statement indicating her “LG G Stylo-8 GB (Boost

Mobile)” cell phone was still unrecovered property. The restitution amount came

from the State’s documentation from an online retailer showing the same phone

model valued at $194.99 and offered for a sale price of $132.59. The court did not

abuse its discretion in awarding restitution for the loss of Goebel’s phone.

We remand for reconsideration of the no-contact orders, and otherwise

affirm.

WE CONCUR: