FILED AUGUST 5, 2021 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STATE OF WASHINGTON, ) ) No. 36837-8-III Respondent, ) ) v. ) ) VERA MARIE HAMILTON, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, A.C.J. — Vera Hamilton was convicted following a jury trial of
rendering criminal assistance, making false or misleading statements to a public servant,
possession of a stolen firearm, and third degree possession of stolen property. She
challenges the sufficiency of the evidence to support each charge. In a pro se statement
of additional grounds (SAG), she raises over 20 additional issues.
Because the evidence was sufficient and her SAG presents no error or abuse of
discretion, we affirm. No. 36837-8-III State v. Hamilton
FACTS AND PROCEDURAL BACKGROUND
Late in the afternoon of November 20, 2018, Ferry County Deputy Sheriff
Matthew Kersten was on patrol and responded to a report of a fight in progress at Vera
Hamilton’s rural property. Deputy Kersten stopped his car outside the property’s gate
when he saw someone running from the scene whom he believed might have been
involved in the fight. He briefly gave chase to the fleeing individual, but the individual
did not stop. The deputy abandoned the chase when he heard people yelling from the
Hamilton property, “[H]e’s over here and he’s getting in your vehicle.” Report of
Proceedings (RP) at 299. As Deputy Kersten returned to secure his patrol car, he heard
gun shots coming from the direction of the individual who fled.
Deputy Kersten found a beaten, bloodied victim of the fight, Todd Griffith,
standing by the closed passenger side door of his patrol car. The deputy drew his weapon
and told Mr. Griffith to show his hands. Mr. Griffith complied, and Deputy Kersten
handcuffed him and put him in the police car for safety before questioning members of
Vera Hamilton’s family who were standing nearby.
Present in the front yard were Ms. Hamilton, her 17-year-old daughter, “Delilah,”
and her 14-year-old son, “Porter.”1 By this time, Sergeant Talon Venturo had arrived and
1 Pseudonyms are used to protect the teens’ identity, consistent with a general order of this court. See Gen. Order of Division III, In re the Use of Initials or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012), https//www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders & div=III.
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he joined as Deputy Kersten questioned them. Deputy Kersten asked the Hamiltons,
“[W]ho did this to this man?” RP at 564. Ms. Hamilton and Delilah told the officers the
fight had been between Mr. Griffith and his friend. Ms. Hamilton told Deputy Kersten
that Mr. Griffith had made rude sexual comments to Porter. Delilah told the deputy that
Mr. Griffith had kicked her. She said she was not injured, and the deputy saw no sign she
had been injured. Ms. Hamilton told Deputy Kersten that the man who ran away had
“saved [them],” which the deputy understood to mean saved them from Mr. Griffith’s
objectionable statements and kicking. RP at 470-71.
Ms. Hamilton said that before the fight Mr. Griffith and his friend had been
shooting a firearm. Deputy Kersten asked where the gun was and Ms. Hamilton said,
“[H]e has it,” pointing in the direction of the individual, now identified as Mr. Griffith’s
friend, who had fled. RP at 392. When the deputy asked for the identity of the friend,
Ms. Hamilton said she didn’t know his name. She said she had heard him referred to as
Shane or Shawn. Porter would later testify that his mother gave the deputy two other
possible names: Michael, and another, which he was “pretty sure . . . was either Cameron
or Jesse.” RP at 565.
In fact, the individual who had been shooting with Mr. Griffith and then assaulted
him, causing his injuries, was Shane Malotte, Delilah’s boyfriend, who Porter would later
admit had been living with Delilah at Ms. Hamilton’s home for a month. Porter believed
that the boyfriend might go by Shawn (he thought that was Mr. Malotte’s brother’s or
3 No. 36837-8-III State v. Hamilton
dad’s name) but he and everyone else in the family always referred to him as Shane.
Porter testified that the boyfriend never went by Michael, Cameron or Jesse.
Porter would also later testify to a brutal beating of Mr. Griffith by Mr. Malotte
that ended when Deputy Kersten’s patrol car was seen approaching. At that point, Mr.
Malotte took the gun they had been shooting—an SKS assault rifle that belonged to Mr.
Griffith’s grandmother—and ran. Porter testified that he and Delilah also told Deputy
Kersten that the fleeing man was Mr. Griffith’s friend, whose name they did not know.
Porter admitted that in truth, they all knew Shane’s first name, but did not provide it
“because Shane asked s [sic] not to say anything.” RP at 566.
Deputy Kersten asked Ms. Hamilton if she knew where Mr. Griffith’s friend lived.
She said it might be at Mr. Griffith’s home.
Deputy Kersten spoke to the three Hamilton family members for 20 or 30 minutes.
He left written statement forms with Ms. Hamilton, telling her that statements would be
important to his investigation.
Deputy Kersten and Sergeant Venturo also spoke with Mr. Griffith, trying to get
an identification of the person who fled the scene, but he was in poor condition and did
not say. Sergeant Venturo described Mr. Griffith as “out of it” and not wanting to talk
about anything. RP at 489. Mr. Griffith’s eyes were swollen shut, his lip was lacerated,
there were multiple contusions on the back of his head, and his face, hands, and shirt
were covered in blood.
4 No. 36837-8-III State v. Hamilton
After leaving Ms. Hamilton’s property, Deputy Kersten, Sergeant Venturo, and
Deputy Christine Clark, who arrived late and had taken a position of cover outside the
fence, traveled to the Griffith residence, acting on Ms. Hamilton’s information that the
man who fled could be there. They decided against approaching the home because it was
dark and the fleeing man had an assault rifle—circumstances that called for more support.
Also, Mr. Griffith was still in their custody, and they did not usually expose civilians to
that kind of risk.
Mr. Griffith had refused offers to summon or take him for medical care, so the
officers took him to the county jail to process his arrest for fourth degree assault, for
allegedly kicking Delilah. Given his injuries, the jail would not accept him, so the
officers took him to the hospital, “un-arrested him,” and told him they would be in
contact. RP at 492.
Thereafter, Deputy Kersten used social media in an effort to find a “Shane” or
“Shawn” that might be the person who shot at him. On Facebook, he found a “Shane
Malotte” who was a member of a local Ferry County page and was friends with, or had
friends in common with, Ms. Hamilton and Delilah. Mr. Malotte had a shaved head and
his Facebook posts contained Nazi symbolism. After learning that Mr. Malotte had
previously been arrested, Deputy Kersten obtained a mugshot and included it in a photo
array that he presented to Mr. Griffith. Mr. Griffith identified Mr. Malotte as the person
who assaulted him.
5 No. 36837-8-III State v. Hamilton
Several days later, on November 25, Ms. Hamilton called 911 to report a trespass:
that Mr. Griffith had returned to her property to try to get his truck, which had been left
behind when he was taken to the hospital following the assault. Ms. Hamilton told the
911 operator that Mr. Griffith was accompanied by a man who “look[ed] exactly like the
person who had shot at [the deputy].” RP at 325. Deputy Kersten and Sergeant Venturo
responded to the call. Mr. Griffith and his companion had left by the time they arrived.
They spoke with Ms. Hamilton, who repeated that the man who was with Mr. Griffith
“matched the exact description” of the shooter. RP at 326. She told the officers she was
“terrified” on seeing Mr. Griffith and his companion, and believed she had seen the flash
of a gun out the window as they drove away. Id.
By this time, as Porter would later admit and testify at trial, Mr. Malotte was back
in the Hamilton home. According to Porter, Mr. Malotte had returned sometime between
midnight on the night of the assault and 4:00 the next morning.
During the November 25 contact, Deputy Kersten again asked Ms. Hamilton what
she knew about the shooter, telling her it was “critical because he had shot at me and
because he had beat up Todd. I mean he had assaulted Todd in a pretty significant way.”
RP at 327. Ms. Hamilton again told the officers that all she knew was that the man was
Mr. Griffith’s friend. That day and the next, Deputy Kersten asked Ms. Hamilton if the
written statements he had requested were completed, and both times she said they were
not.
6 No. 36837-8-III State v. Hamilton
That same day, Mr. Griffith reported to police that personal property was missing
from his truck. He traveled to the police station the next day to provide a statement.
Deputy Kersten relied on Mr. Griffith’s stolen property report to obtain a warrant
to search Ms. Hamilton’s residence for the missing items. Deputy Kersten and several
other officers executed the warrant on November 29. Mr. Griffith had reported that
among property missing from his truck were a snatch block, come-along, some tie straps
and the SKS assault rifle. In executing the warrant at the Hamilton home, Deputy
Kersten found the SKS rifle “right at the top of the stairs.” RP at 332. He would later
testify that “[t]here was a little banister and right around the corner of the banister it was
lying on the ground,” on top of a pile of clothing. RP at 332. The rifle’s stock was
emblazoned with a swastika and the words “skin head.” RP at 341.
A double-doored storage area was built into the front of Ms. Hamilton’s house.
On the day of the search, its doors were open. Inside it officers found a snatch block and
come-along hung on a water tank. Yellow straps of the type reported stolen were found
on the ground. According to Deputy Kersten, anyone who walked up to the front side of
the house could have seen these items. Mr. Griffith later identified the stolen straps,
snatch block, and come-along as his. He and his grandmother identified the rifle as the
grandmother’s, although the swastika and “skin head” markings were new.
No one had been at the Hamilton home when officers arrived to execute the search
warrant. After completing the search, they learned that a quad (an all-terrain vehicle) that
7 No. 36837-8-III State v. Hamilton
Ms. Hamilton and Porter were known to drive was parked near the highway. They
located the quad at an intersection that serves as a community resources bus stop. While
they were there, a bus stopped as if to let someone off, but then left without anyone
disembarking. Deputy Kersten stopped the bus, found that Delilah and Mr. Malotte were
on board, and arrested them. Mr. Malotte, Delilah and Ms. Hamilton all later faced
charges.
The State originally charged Ms. Hamilton with first degree assault as principal or
accomplice, as well as making false or misleading statements to a public servant, first
degree rendering criminal assistance, possessing a stolen firearm, and third degree
possessing stolen property. It dropped the assault charge before trial. Its amended
information stated that the false or misleading statements to a public servant were alleged
to have been made on November 20. It stated that the rendering criminal assistance was
alleged to have occurred on or about November 25.
At Ms. Hamilton’s trial, the State offered testimony from Mr. Griffith, Porter,
Deputy Kersten, Sergeant Venturo, Deputy Clark and a 911 operator. They testified
consistently with the facts recounted above.
Mr. Griffith provided detailed testimony about the events of the afternoon of
November 20. He testified he had been drinking that day and drove to Ms. Hamilton’s
house midafternoon because he was bored. He took a bottle of alcohol with him. He
testified that he visited outside with Ms. Hamilton, Delilah, Mr. Malotte and Porter, and
8 No. 36837-8-III State v. Hamilton
he and Mr. Malotte had a drink. He testified that he had met Mr. Malotte only once
before, when he and Mr. Malotte accompanied Ms. Hamilton on a drive to a smoke shop
for cigarettes and “dinked around . . . for a little while” before Mr. Griffith was dropped
off to walk home. RP at 199. As the group visited outside Ms. Hamilton’s home on
November 20, Mr. Griffith mentioned that he had his grandmother’s SKS assault rifle in
his truck. Everyone but Ms. Hamilton took a turn shooting it.
After shooting, they continued visiting and drinking. Mr. Griffith, who described
himself as having a “crude sense of humor,” recalls making a joke about kicking Delilah
in the stomach when someone said she might be pregnant, and recalls “nudg[ing] her”
with his foot. RP at 210, 245. He also joked about Porter “blow[ing]” a man for money
and might have grabbed Porter’s head and shoved it into his crotch. He recalled Ms.
Hamilton “freaking out” and yelling at him not to talk to people like that. RP at 213-14.
His recollection of how it went from that to what he referred to as “lights out” was
poor. RP at 213. He recalls being on the ground and trying to get up and “[t]hey were
telling me to lay, you know, get down on the ground, you know, kicking me in the face
and hitting me in the head with the butt of the gun telling me to stay down.” Id. He
knew they were hitting him with the gun because he could hear the “clinging” of the bolt,
which made a distinct sound. RP at 215. Mr. Griffith believed Mr. Malotte was the one
kicking him and “[h]e was the one with the gun anyways.” RP at 215. He was pretty
9 No. 36837-8-III State v. Hamilton
sure everyone was outside while this was happening. When the police arrived, Mr.
Griffith remembered thinking “thank God.” RP at 218.
Porter testified that he and his mother were inside when what he referred to as “the
actual fight” began between Mr. Malotte and Mr. Griffith. RP at 555. He went outside
three or four times during their fight. At first, he testified, Mr. Malotte was punching Mr.
Griffith, “and then he started kicking and when he was kicking he had steel toed boots
on.” RP at 559. Porter testified he was going out “to make sure like [Mr. Malotte]
wasn’t about to kill him because I was like really scared for T.J.” RP at 558. (Mr.
Griffith went by “T.J.” as well as “Todd.”) Porter testified that Ms. Hamilton was
outside for part of the fight and Delilah was outside for most of it. Eventually, Ms.
Hamilton called the police and Delilah talked to them.
Porter testified that he was not sure whether Mr. Malotte had the Griffith rifle
when he returned to the house the night he assaulted Mr. Griffith and fled. But he saw
it in Mr. Malotte’s possession the next day. He testified that Mr. Malotte bought
ammunition for the rifle and “was always messing with it, upstairs and downstairs.”
RP at 707. According to Porter, Mr. Malotte mostly kept the rifle upstairs; when he had
it downstairs, it was in his hands. Porter did not trust Mr. Malotte with the gun and knew
he should not have it.
Porter never handled the gun and he had seen Delilah hold only the clip. When
asked at trial if he had seen his mother holding the gun after November 20, Porter
10 No. 36837-8-III State v. Hamilton
answered, “Not that I remember.” RP at 702. Asked if he had told a defense investigator
that he saw his mother hold the gun, he said he did not recall that either. After listening
to a recording of his interview by that investigator outside the presence of the jury,
however, Porter testified that he now recalled that he told the investigator he saw his
mother hold the gun and hand it to Mr. Malotte sometime after November 20—but he
could still not recall his mother doing that.
Porter testified that Mr. Griffith’s truck stayed outside their house for a few days
and Mr. Malotte went into it; Porter was pretty sure Delilah did too. He testified that Ms.
Hamilton knew Delilah and Mr. Malotte had gone through the truck. Porter was aware
straps were missing from Mr. Griffith’s truck and saw some in the house, although he
was not sure if they were Mr. Griffith’s.
Porter described the layout of the upstairs of Ms. Hamilton’s home, where
everyone slept. He and Ms. Hamilton each had a bedroom. Neither bedroom had a door.
The area outside their rooms was described as a loft, and was where Delilah and Mr.
Malotte slept. Porter acknowledged that to get to his own room and Ms. Hamilton’s, one
had to walk through that area.
Porter testified that the clothes the assault rifle was found on during execution of
the search warrant were his. He was surprised when he saw the officer’s picture of where
the rifle was found, which he agreed was in the area of the loft near his door. While the
rifle was often left in the loft, he testified it was usually closer to where Delilah and
11 No. 36837-8-III State v. Hamilton
Shane slept. He testified that everyone who lived in the house had access to the entire
house and no areas were locked or off limits. Porter said they “always went in each
other’s rooms.” RP at 548.
Porter testified that his mother’s home was located on 10 acres and the family had
chickens, two cows, two goats, two rabbits, and dogs. Everyone helped take care of the
animals. Water tanks were located in the double-doored storage area. Some were for
drinking and eating and others were for watering the animals. The animals had to be
given water every day.
Ms. Hamilton did not call any witnesses.
The jury found Ms. Hamilton guilty as charged. A motion to arrest judgment on
the third and fourth charges on the basis of insufficient evidence was denied. Ms.
Hamilton appeals.
ANALYSIS
Ms. Hamilton’s assignments of error challenge the sufficiency of the evidence to
support her four convictions.
Due process requires the State to prove all elements of a crime beyond a
reasonable doubt. State v. Washington, 135 Wn. App. 42, 48, 143 P.3d 606 (2006). The
test for sufficiency of the evidence is “whether, after viewing the evidence in the light
most favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All
12 No. 36837-8-III State v. Hamilton
reasonable inferences from the evidence are drawn in favor of the State and are
interpreted most strongly against the defendant. Id. “Credibility determinations are for
the trier of fact and are not subject to review.” State v. Mines, 163 Wn.2d 387, 391, 179
P.3d 835 (2008).
We address Ms. Hamilton’s assignments of error in the order presented.
I. FIRST DEGREE RENDERING CRIMINAL ASSISTANCE
Ms. Hamilton challenges the sufficiency of the evidence to support her conviction
for first degree rendering criminal assistance on two grounds: first, that the State did not
present substantial evidence that she knew Mr. Malotte had committed or was being
sought for first degree assault; and second, that the only evidence of her assistance
advanced by the State was not evidence of an affirmative act or statement.
A. Substantial evidence supports the essential element that Ms. Hamilton knew that Mr. Malotte committed or was being sought for the crime of assault
The Washington Criminal Code recognizes three degrees of the crime of rendering
criminal assistance. As relevant here, it defines “renders criminal assistance” as
comprising six types of assistance rendered “with intent to prevent, hinder, or delay the
apprehension or prosecution of another person” who the accused “knows has committed
a crime . . . or is being sought by law enforcement officials for the commission of a
crime.” RCW 9A.76.050 (emphasis added). By the statute’s plain language, the
knowledge required to constitute rendering criminal assistance is knowledge of the
13 No. 36837-8-III State v. Hamilton
assisted person’s commission of “a crime” or that the assisted person is being sought for
commission of “a crime.”
The seriousness of the crime the assisted person has committed dictates whether a
defendant’s assistance is first, second, or third degree rendering criminal assistance.
RCW 9A.76.070(1) provides that “[a] person is guilty of rendering criminal assistance in
the first degree if he or she renders criminal assistance to a person who has committed or
is being sought for murder in the first degree or any class A felony or equivalent juvenile
offense.” By this statute’s plain language, it does not require the State to prove that the
defendant knew the person being assisted had committed or was being sought for, e.g., a
class A felony.
For purposes of instructing the jury in this case on the knowledge element of first
degree rendering criminal assistance, the State cited State v. Anderson, 63 Wn. App. 257,
818 P.2d 40 (1991), for the proposition that Ms. Hamilton need not know of the degree of
assault that Mr. Malotte committed or for which he was wanted, but only that it was
assault. Defense counsel persuaded the trial court otherwise. The court instructed the
jury that to convict, the elements that must be proved beyond a reasonable doubt
included:
(1) That on or about November 25, 2018, the defendant rendered criminal assistance to a person; (2) That the person had committed or was being sought for Assault in the First Degree; [and]
14 No. 36837-8-III State v. Hamilton
(3) That the defendant knew that the person had committed or was being sought for Assault in the First Degree.
Clerk’s Papers (CP) at 148. The State made a timely objection and took exception to the
instruction.
In Anderson, the defendant was convicted of first degree rendering criminal
assistance based on evidence he drove a companion away from the scene of a robbery,
having been told by the companion that he had just robbed a store. 63 Wn. App. at 258.
Anderson argued on appeal that while it turned out his companion brandished an apparent
firearm during the robbery, there was no evidence Anderson knew of the ersatz firearm or
that it elevated the robbery to a class A felony. He argued that “a person must know that
a class A felony has been committed before he or she can be guilty of rendering criminal
assistance in the first degree.” Id. at 259.
This court rejected the argument and held, based on the plain language of RCW
9A.76.050 and .070, that
a person can be convicted of rendering criminal assistance in the first degree if he or she knows at the time of rendering the assistance that the one being assisted committed robbery. We further hold that a person can be convicted of rendering criminal assistance in the first degree notwithstanding a lack of knowledge concerning facts that would disclose the degree of the robbery.
Anderson, 63 Wn. App. at 260.
The court analogized rendering criminal assistance to accomplice liability,
observing, “An accomplice is liable because he or she knowingly aids the criminal
15 No. 36837-8-III State v. Hamilton
enterprise of another before the fact,” while “[o]ne who renders criminal assistance is
liable because he or she knowingly aids the criminal enterprise of another after the fact.”
Id. at 261. It reasoned that “[b]ecause the goal in both cases is to punish for knowingly
aiding the criminal enterprise of another, there is no reason to require that the renderer
have more specific knowledge than the accomplice.” Id. at 261. General knowledge of
the crime is enough for accomplice liability, the court observed. Id. (citing State v.
Davis, 101 Wn.2d 654, 658-59, 682 P.2d 883 (1984); and see In re Pers. Restraint of
Sarausad, 109 Wn. App. 824, 836, 39 P.3d 308 (2001) (accomplice liability attached if
defendant knew he was facilitating even a simple, misdemeanor-level assault).
Ms. Hamilton does not address Anderson. She takes the position that right or
wrong, the elements instruction given in her trial is “law of the case” for the purpose of
our sufficiency analysis. But as stated in State v. Hickman, it is “jury instructions not
objected to become the law of the case.” 135 Wn.2d 97, 102, 954 P.2d 900 (1998)
(emphasis added). Hickman did not explain why an objection made in the trial court
makes a difference, but we can glean why it makes a difference from State v. Johnson, in
which our Supreme Court considered whether the United States Supreme Court’s
decision in Musacchio v. United States, 577 U.S. 237, 136 S. Ct. 709, 193 L. Ed. 2d 639
(2016), superseded Washington’s “law of the case” doctrine. 188 Wn.2d 742, 756, 399
P.3d 507 (2017).
16 No. 36837-8-III State v. Hamilton
The United States Supreme Court held in Musacchio that when a jury instruction
adds an element to a charged crime and the government fails to object, “a sufficiency
challenge should be assessed against the elements of the charged crime, not against the
erroneously heightened command in the jury instruction.” 577 U.S. at 243. This flows,
the Court held,
from the nature of a court’s task in evaluating a sufficiency-of-the-evidence challenge. Sufficiency review essentially addresses whether “the government’s case was so lacking that it should not have even been submitted to the jury.” Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (emphasis deleted). On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a “meaningful opportunity to defend” against the charge against him and a jury finding of guilt “beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 314-315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The reviewing court considers only the “legal” question “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id., at 319, 99 S. Ct. 2781 (emphasis in original). . . . A reviewing court’s limited determination on sufficiency review thus does not rest on how the jury was instructed.
Id.
As Johnson explained, the aspect of Washington’s “law of the case” doctrine
dealing with unobjected-to jury instructions falls within a category that Musacchio
observed can constrain an appellate court’s review of a matter: doctrines such as waiver,
forfeiture, and estoppel. 188 Wn.2d at 761 (citing Musacchio, 577 U.S. at 245).
“Specifically,” Johnson states, “the doctrine is premised on the procedural rule that
17 No. 36837-8-III State v. Hamilton
‘“before error can be claimed on the basis of a jury instruction given by the trial court, an
appellant must first show that an exception was taken to that instruction.”’” Id.
(emphasis omitted) (quoting State v. Salas, 127 Wn.2d 173, 181, 897 P.2d 1246 (1995)
(quoting, in turn, State v. Bailey, 114 Wn.2d 340, 345, 787 P.2d 1378 (1990))).
Accordingly, because the State can show in Ms. Hamilton’s case that it took
exception to the elements instruction, neither due process nor a failure to preserve error
requires us to assess her sufficiency challenge against the instructions’ erroneously
heightened charge. We assess it instead against the elements of the charged crime.
Ms. Hamilton acknowledges that Deputy Kersten testified he “told her he was
looking for the person who assaulted Griffith and the person he alleged shot at him.” Br.
of Appellant at 16. She contests only the sufficiency of evidence to prove that she knew
Mr. Malotte committed or was being sought for a class A felony.
The evidence of first degree rendering criminal assistance was sufficient.
B. There was sufficient evidence of affirmative acts or statements
Ms. Hamilton also contends that for a defendant to be guilty of rendering criminal
assistance, she or he “must take affirmative acts or make affirmative statements, with the
intent to conceal or harbor a felony offender from law enforcement.” Supp. Br. of
Appellant at 4 (citing State v. Pringle, 147 Wash. 555, 266 P. 196 (1928) and State v.
Budik, 173 Wn.2d 727, 272 P.3d 816 (2012)). Of the six types of assistance that can
18 No. 36837-8-III State v. Hamilton
constitute criminally rendering assistance, the jury in Ms. Hamilton’s case was instructed
on two: that a defendant
- harbors or conceals such person; or - prevents or obstructs, by use of deception, anyone from performing an act that might aid in the discovery or apprehension of such person.
CP at 146.
It is well settled that a defendant cannot be guilty of rendering criminal assistance
if she does nothing more than falsely disavow information. In Budik, the defendant was
charged with rendering criminal assistance. The means charged was using deception that
prevented or obstructed performance of an act that might have aided in discovery or
apprehension of the wanted person. While our Supreme Court acknowledged that the
term “deception” used in RCW 9A.76.050 may literally include false disavowals, it was
properly construed as requiring more: it “requires an affirmative act or statement.”
Budik, 173 Wn.2d at 737. It relied for this construction on the statutory treatment of
obstructing justice as a whole, other types of assistance criminalized by the statute, the
statute’s history, and case law from other jurisdictions interpreting the crime of serving as
an accessory after the fact. Id. at 735-37. The court observed that this construction also
conformed to its holding in State v. Williams, 171 Wn.2d 474, 483-84, 251 P.3d 877
(2011), that statutes criminalizing false statements to law enforcement implicate
constitutional guaranties of speech and privacy and must be narrowly construed. Budik,
173 Wn.2d at 737.
19 No. 36837-8-III State v. Hamilton
False disavowals can go hand in hand with affirmatively misleading statements,
however, as illustrated by State v. Mollet, 181 Wn. App. 701, 707, 326 P.3d 851 (2014).
Megan Mollet was the front seat passenger in a truck being driven by Joshua Blake when
a highway patrol trooper stopped the truck just after midnight and was shot and killed by
Blake. Id. at 703. Officers located Blake’s truck abandoned in a field of tall grass on a
property and cleared six people from two houses on the property, one being Mollett;
Blake had arranged to be taken elsewhere. Id. at 704. Mollet told officers she did not
know Blake and did not know anything about anybody shooting an officer. Id. at 710.
She told both officers that she had spent most of the prior day helping a friend move; she
told one officer she didn’t arrive home until 1:00 a.m. and another that she arrived home
at 11:00 p.m. but went straight to bed. Id. She was charged and convicted of first degree
rendering criminal assistance by concealing Blake, through false statements to police.
Id. at 704-05.
On appeal, she relied on Budik to argue that because she only falsely disavowed
knowledge, her conviction for rendering criminal assistance could not stand. While this
court agreed that her statements about not knowing Blake or anything about the crime
were mere disavowals,
[her] false statements that she was helping a friend move that night and that she did not see Blake at the residence were not mere false denials of knowledge. Rather, they were affirmative statements that she had not been present at the shooting and that she had had the opportunity to observe but did not see anything at the Sidney Road property.
20 No. 36837-8-III State v. Hamilton
Id. at 710-11.
Ms. Hamilton, too, made affirmative misrepresentations. She continually
represented to police that her connection to the man they were looking for was through
Mr. Griffith and she believed the man lived with Mr. Griffith. On November 25, she
reported that she was terrified because someone who looked like the friend of Mr.
Griffith’s who shot at Deputy Kersten had returned with Mr. Griffith to her property, and
appeared to have a firearm. Jurors could reasonably infer that her false statements were
calculated to shield Mr. Malotte by deflecting investigation away from her family and
property. According to Deputy Kersten, it would have “substantially” changed the
investigation if officers had known Mr. Malotte’s true relationship with the Hamilton
family. RP at 394. If Ms. Hamilton had denied knowing anything about the person who
assaulted Mr. Griffith in her fenced yard, it could (indeed, likely would) be perceived as a
refusal to cooperate and would not have deflected interest from her family and property.
Ms. Hamilton also argues that the State’s evidence that she harbored or concealed
Mr. Malotte fails because, as her trial lawyer argued in closing, Mr. Malotte was out in
public between November 20 and his apprehension on November 29: he rode the
Hamiltons’ quad to and from the community bus stop and took the bus into town to shop
and take showers. She relies on the 1928 decision in Pringle, in which our Supreme
Court construed the statute then in place as requiring the defendant to do some
affirmative act “toward[ ] hiding or keeping the person he is charged with concealing
21 No. 36837-8-III State v. Hamilton
from the public view,” and found no evidence that the defendant in that case had tried to
“hide or secrete” the wanted person. 147 Wash. at 558-59. As the State points out,
however, Pringle was not applying the predecessor statute to RCW 9A.76.050—it was
applying a different predecessor statute. In holding in Pringle that the “gist of the
offense” it was applying “is concealment,” the Pringle court distinguished the
predecessor to the statute we are applying. 147 Wash. at 557. It characterized the
predecessor to RCW 9A.76.050 as “covering the question of aiding, assisting, harboring,
or in any way other than by concealment, helping such escaped prisoner.” 147 Wash. at
557 (emphasis added).
“Harboring” is defined as “[t]he act of affording lodging, shelter, or refuge to a
person, esp. a criminal or illegal alien.” BLACK’S LAW DICTIONARY 860 (11th ed. 2019).
The State’s evidence that Ms. Hamilton was harboring Mr. Malotte was sufficient.
II. POSSESSION OF A STOLEN FIREARM
Ms. Hamilton challenges the sufficiency of the evidence that she had constructive
possession of the stolen Griffith rifle.
“A person is guilty of possessing a stolen firearm if he or she possesses, carries,
delivers, sells, or is in control of a stolen firearm.” RCW 9A.56.310(1). Possession can
be actual or constructive. “Actual possession means that the goods are in the personal
custody of the person charged with possession; whereas, constructive possession means
that the goods are not in actual, physical possession, but that the person charged with
22 No. 36837-8-III State v. Hamilton
possession has dominion and control over the goods.” State v. Callahan, 77 Wn.2d 27,
29, 459 P.2d 400 (1969).
Whether a defendant had dominion and control over an item turns on the totality
of the circumstances. State v. Alvarez, 105 Wn. App 215, 221, 19 P.3d 485 (2001). The
fact that a defendant has dominion and control over premises where an item is found is
relevant. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997) (possession
of a firearm). “‘[T]he ability to reduce an object to actual possession’ is an aspect of
dominion and control, but ‘other aspects such as physical proximity’ should be
considered as well.” State v. Chouinard, 169 Wn. App. 895, 899, 282 P.3d 117 (2012)
(alteration in original) (quoting State v. Hagen, 55 Wn. App. 494, 499, 781 P.2d 892
(1989)). Proximity alone is not sufficient to establish constructive possession, however.
Id. (citing State v. Raleigh, 157 Wn. App. 728, 737, 238 P.3d 1211 (2010)). “And
knowledge of the presence of contraband, without more, is insufficient to show dominion
and control to establish constructive possession.” Id.
In this case, evidence was presented that Ms. Hamilton possessed the premises and
after being stolen, the rifle was continually kept at her home. Porter testified that Mr.
Malotte carried the rifle into all areas of the house; when Mr. Malotte wasn’t handling it,
it would be “laying on the ground,” generally in the loft area where Mr. Malotte and
Delilah slept. RP at 569. That open area was in close proximity to Ms. Hamilton’s
bedroom, which had no door. On the day the search warrant was executed, it was even
23 No. 36837-8-III State v. Hamilton
closer to her bedroom; it was found next to a banister at the top of the stairs. The trial
court observed when it denied a motion to arrest judgment on this count that not only was
the rifle “in open plain view” in the home, but Ms. Hamilton “had to basically trip over it
every day to get where she was going.” RP at 958.
Ms. Hamilton discounts the importance of her possession of the premises, pointing
to State v. Davis, in which our Supreme Court found that a homeowner, Letrecia Nelson,
did not have possession of a firearm brought into her home. 182 Wn.2d 222, 340 P.3d
820 (2014) (plurality opinion). The visitor to Nelson’s home was an acquaintance who,
after being injured in a confrontation with police, demanded entry into her home to get a
change of clothing and help treating his gunshot wound, and was there for only 15
minutes. Id. at 225, 228 (lead opinion). Justice Stephens, writing for the majority on this
issue, observed that having dominion and control over the premises containing an item
“does not, by itself, prove constructive possession. Id. at 234 (Stephens, J., dissenting)
(emphasis added).
Significant to the court’s decision that possession of the premises was not enough
in Nelson’s case was evidence that her injured, gun-bearing visitor “arrived . . . in an
atmosphere of chaos . . . making demands for assistance, and admitting to killing four
armed police officers.” Id. at 235. There was evidence that he had a “tendency to be ‘in
control of his family members’ and others” and a “reputation of being ‘intimidating.’”
Id. at 235. Whether Nelson was in a position to exercise dominion and control over her
24 No. 36837-8-III State v. Hamilton
visitor’s gun, the court concluded, “must be considered in this context.” Id. Given the
circumstances, it concluded she had not been in a position during that chaotic 15 minutes
to exercise dominion and control over his firearm.
Ms. Hamilton was not dealing with a fleeting, chaotic intrusion by someone so
intimidating that no homeowner would risk acting on their access to the intruder’s
firearm. The evidence of her constructive possession of the rifle was sufficient.
III. THIRD DEGREE POSSESSION OF STOLEN PROPERTY
Under RCW 9A.56.140(1), “[p]ossessing stolen property” means “knowingly to
receive, retain, possess, conceal, or dispose of stolen property knowing that it has been
stolen and to withhold or appropriate the same to the use of any person other than the true
owner or person entitled thereto.” Ms. Hamilton argues that with respect to the stolen
snatch block, come-along, and tie straps, there was insufficient evidence that she
possessed them or knew they were stolen.
The double-doored storage area, as a part of Ms. Hamilton’s home, was in her
dominion and control, as, presumptively, were the items in it. Echeverria, 85 Wn. App.
at 783. The State presented evidence that the storage area was visited regularly by
members of the household and daily by at least some of them, since that was where water
needed for personal use and to care for their animals was located. There was also
evidence that the doors were sometimes left open—they were on the day of the search—
in which case the stolen items could be seen without even entering the storage area.
25 No. 36837-8-III State v. Hamilton
Viewed in the light most favorable to the State, the evidence supported an inference that
Ms. Hamilton knew the items were in her home’s storage area.
Porter testified to being present when Delilah and Mr. Malotte talked to Ms.
Hamilton about the fact that they were going through stuff in Mr. Griffith’s truck. Ms.
Hamilton was present on the night of the assault and would have seen items strewn
around the truck that were no longer there a few days later. During the same time frame,
the new items appeared in the storage area. Here, too, the evidence supported the
inference that she knew the new items were stolen.
IV. MAKING A FALSE AND MISLEADING STATEMENT
Finally, Ms. Hamilton argues that her statements on November 20 that “[Mr.]
Malotte might be or could be at Griffith’s home” were not “definitive” and cannot
support her conviction for making a false or misleading statement to a public servant.
Br. of Appellant at 25-26. The State responds that Ms. Hamilton made additional false
and misleading statements, and that all of them support her conviction on this count.
“A person who knowingly makes a false or misleading material statement to a
public servant is guilty of a gross misdemeanor. “‘Material statement’ means a written
or oral statement reasonably likely to be relied upon by a public servant in the discharge
of his or her official powers or duties.” RCW 9A.76.175. The statute does not require
actual reliance on the statement by an official. State v. Godsey, 131 Wn. App. 278, 291,
127 P.3d 11 (2006). While a conviction for rendering criminal assistance stemming from
26 No. 36837-8-III State v. Hamilton
deceptive statements to a police officer requires an affirmative act or statement, providing
a false or misleading statement under RCW 9A.76.175 does not. Mollet, 181 Wn. App.
at 707.
Ms. Hamilton first argues that “reluctance” on her part to provide definitive
information to the deputies does not make her statements false or misleading. Br. of
Appellant at 26. There is no evidence she was reluctant, but if she was, it would not
make her statements true or not misleading.
Viewing the evidence in the light most favorable to the State, the jury could
reasonably have found all of the following statements by Ms. Hamilton to be false and
misleading: that she didn’t know the fleeing man, that he was a friend of Mr. Griffith,
that he might be living with Mr. Griffith,2 and that his name was Shane, Shawn, Michael
or a fourth name (Cameron or Jesse). Telling the deputy that the fleeing man “might” be
living with Mr. Griffith does not absolve her of guilt; the jury could find the statement
was knowingly false if she knew Mr. Malotte was not living there.
As for the required reasonable likelihood that the deputies would rely on Ms.
Hamilton’s statements, they demonstrably did. Proving their actual reliance was not
required, but the first step they took after leaving the Hamilton property was to travel to
2 Ms. Hamilton characterizes Deputy Kersten as testifying that she said only that the fleeing suspect “might be” at the Griffith house, but the State presented evidence that this was in the context of discussing where he was living. See RP at 307.
27 No. 36837-8-III State v. Hamilton
the Griffith property and assess whether they could safely approach in search of their
suspect. And it was foreseeable that they would rely on Ms. Hamilton’s statements by
focusing their further investigation on Mr. Griffith’s connections. As previously
observed, had Ms. Hamilton not seemingly cooperated and pointed the deputies in the
wrong direction, their focus would likely have remained on the Hamilton family
members and property.
Here again, the evidence was sufficient.
STATEMENT OF ADDITIONAL GROUNDS
Ms. Hamilton filed a pro se SAG in which she includes over 20 grounds.
The Rules of Appellate Procedure permit the defendant in a criminal case on direct
appeal to file a SAG, to identify and discuss matters the defendant believes have not been
adequately addressed by the brief filed by her or his appellate counsel. RAP 10.10(a).
We will consider only arguments that were not addressed by counsel’s briefing.
RAP 10.10(a). Challenges to the sufficiency of the evidence to sustain Ms. Hamilton’s
convictions were adequately briefed and are rejected for reasons already discussed. Ms.
Hamilton’s SAG adds nothing of merit on those issues and need not be addressed.
Issues that turn on facts that are not reflected in the record cannot be resolved in
the direct appeal and are properly raised through a personal restraint petition (PRP),
where they must be supported by admissible evidence. State v. Calvin, 176 Wn. App. 1,
26, 316 P.3d 496 (2013). Almost all of Ms. Hamilton’s claims of ineffective assistance
28 No. 36837-8-III State v. Hamilton
of her trial counsel fall into this category. Also falling into this category is her complaint
that jurors slept during the trial, since the record created by the trial court suggests
otherwise. Ms. Hamilton is cautioned that to establish ineffective assistance of counsel,
she will need to demonstrate not only deficient representation, but also that she was
actually prejudiced.
Alleged errors that were not raised in the trial court are unpreserved and generally
will not be reviewed for the first time on appeal. RAP 2.5(a). Examples are Ms.
Hamilton’s contention that she should have received a change of venue, since no motion
for a venue change was made below; her complaint about the exclusion of criminal
history on the part of Mr. Griffith that the lawyers agreed was inadmissible; a failure to
redact the identity of her prescribed medications from photographs used to establish her
dominion and control of areas in the home; and the prosecutor’s questioning of Porter
about whether some of Mr. Griffith’s behavior was joking. If Ms. Hamilton believes
these issues resulted from ineffective assistance of counsel, she needs to demonstrate the
ineffective assistance in a PRP.
We will not consider a defendant’s SAG for review if it does not inform the court
of the nature and occurrence of alleged errors. RAP 10.10(c); State v. Bluehorse, 159
Wn. App. 410, 436, 248 P.3d 537 (2011). An appellate court is not required to search the
record in support of claims made in the SAG. RAP 10.10(c). Ms. Hamilton speaks of a
“speedy trial” issue, but she does not identify facts that would raise a rule-based time to
29 No. 36837-8-III State v. Hamilton
trial violation, let alone a constitutional one. Her principal concern is that she wanted a
pending animal cruelty prosecution to be tried first, but she fails to articulate a legal right
to trials being conducted in her preferred order.
Complaints about attorney performance cannot be entertained if the attorney's
conduct “can be characterized as legitimate trial strategy or tactics.” State v. McNeal,
145 Wn.2d 352, 362, 37 P.3d 280 (2002). Falling into this category are complaints that
her trial lawyer failed to present evidence that was inadmissible (e.g., an investigator’s
report, which would have been hearsay; testimony from Delilah and Mr. Malotte, who the
court was told would refuse to testify, given charges pending against them; evidence of
Mr. Griffith’s criminal history) or that was irrelevant (signage on her property saying she
was not liable for lost or stolen property).
We do not review complaints for which no relief can be granted, such as Ms.
Hamilton’s complaints about the first degree assault charge that the State voluntarily
dismissed, law enforcement’s alleged failure to procure a no-contact order for her against
Mr. Griffith, and her receipt of only one offer of a plea deal—an offer she found
unacceptable.
The only ground raised by Ms. Hamilton that warrants review is her complaint that
the trial court too summarily rejected her requests for replacement of her court-appointed
trial lawyer. On three occasions before trial, Ms. Hamilton requested a new attorney.
The first was at a time when the trial court was ordering an evaluation of her competency
30 No. 36837-8-III State v. Hamilton
and she accused her lawyer of being incompetent. The court reasonably ruled that the
evaluation should be completed first and “if this continues to be a problem in your mind,
. . . we’ll take another look at it.” RP at 8. It did tell Ms. Hamilton that her trial lawyer
was a “very experienced, well-respected trial attorney.” RP at 7.
The second request was after she had been found competent to stand trial and,
when returned to court to enter a plea, told the court that she wanted to fire her trial
lawyer for incompetence, for coercing her, and for talking to the officers involved about
her case. RP at 16. The trial court again observed that her lawyer was “a very
experienced defense attorney,” so the court needed to know her reasons more
specifically. RP at 17. She was told to put her concerns in writing “and we’ll talk about
it.” Id.
The third request was at a status hearing presided at by a different judge. Ms.
Hamilton evidently had not filed a written motion as directed, but the court heard from
her anyway. She said that she and her lawyer did not “see eye to eye” and
My feeling about it is I haven’t even gone over the case with him. I haven’t seen pictures or recordings or anything and he’s having a hard time returning my phone calls and I also have him coercing me on a tape too.
RP at 34.
When invited to respond, defense counsel said he had never coerced a client to
accept a guilty plea and invited the trial court to listen to the tape recording. He told the
court he had merely told Ms. Hamilton, with respect to a separate, pending prosecution
31 No. 36837-8-III State v. Hamilton
for animal cruelty, that it did not appear that she was guilty of first degree animal cruelty
but before he could say whether she might be guilty of a separate or lesser included
charge, he needed to see the scene (it was not then possible, due to snow) and do further
research.
Ms. Hamilton added that the lawyer had not listened to a tape she wanted him to
hear or look at a text she wanted him to see. The lawyer responded that the problem with
their communication was that Ms. Hamilton had her own ideas, but did not understand
the law or court rules and refused to listen to him. The trial judge sought to explain to
Ms. Hamilton how, in his view, her lawyer was simply doing his job and she should
listen to him. He, too, reassured her that her lawyer was an “extremely well-respected
attorney.” RP at 36.
Ms. Hamilton points to no other occasion, in later status conferences or at trial,
that she renewed her request for replacement counsel.
Defendants do not have an absolute right to the counsel of their choice. When a
motion for new counsel is made—and we note that Ms. Hamilton never prepared a
written motion, although directed to do so—courts are required to grant it only “when
counsel and defendant are so at odds as to prevent presentation of an adequate defense.”
State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997) (Stenson I). A defendant
“must show good cause to warrant substitution of counsel, such as a conflict of interest,
an irreconcilable conflict, or a complete breakdown in communication between the
32 No. 36837-8-III State v. Hamilton
attorney and the defendant.” Id. Courts consider “(1) the extent of the conflict, (2) the
adequacy of the inquiry, and (3) the timeliness of the motion.” In re Pers. Restraint of
Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001) (Stenson II).
Most important here is the nature and the extent of the breakdown in
communication. Id. at 730. “The general loss of confidence or trust alone is not
sufficient to substitute new counsel.” Stenson I, 132 Wn.2d at 734. Our Supreme Court
found no irreconcilable differences where a defendant was: “afraid to proceed with his
counsel,” his attorney told the lower court that they no longer had an attorney-client
relationship, and he could not stand the sight of the defendant, because that disagreement
was short lived and they were able to communicate. Stenson II, 142 Wn.2d at 729-31.
The court also commented that the disagreement was not comparable to federal cases
finding irreconcilable differences and “the effects of any breakdown in communication
on attorney performance seem negligible.” Id. at 729. We review the denial of a motion
for new counsel for abuse of discretion. Id. at 723.
Ms. Hamilton did not view the issue as important enough to prepare a written
motion, as directed. At each appearance in our record, defense counsel was prepared and
from all appearances was working diligently and competently on Ms. Hamilton’s
defense. Her own exchanges with the court tended to confirm her lawyer’s report that
she had her own ideas about tactical decisions that were his province, and sometimes
preferred her ideas over listening to his advice. There was no evidence of a conflict of
33 No. 36837-8-III State v. Hamilton
interest, nor was there the appearance of irreconcilable differences or a complete
breakdown in communication. No abuse of discretion is shown in failing to grant or take
further action on Ms. Hamilton’s informal, undocumented, request for replacement.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_____________________________ Siddoway, A.C.J.
WE CONCUR:
_____________________________ Fearing, J.
_____________________________ Staab, J.