STATE v. PARMELEE

DWYER, J.

Rick Stone appeals his conviction and sentence of first degree arson for setting fire to a car in a condominium parking lot, contending the State proved that he committed, at most, second degree arson. We conclude, however, that the evidence presented at trial was sufficient for the jury to find that the fire was "manifestly dangerous to any human life" because of the potential for harm to nearby condominium residents. Stone's other challenges to his conviction are similarly without merit. Accordingly, we affirm the conviction. Agreeing with the recent decision in State v. Jackson, 129 Wn. App. 95, 117 P.3d 1182 (2005), however, we conclude the trial court erred in finding that Stone's prior Oregon conviction for unauthorized taking of a vehicle was comparable to a Washington felony. Therefore, we remand for resentencing, noting that, because Stone properly objected to the comparability finding at his first sentencing hearing, the State may not argue or introduce additional evidence to support comparability on remand.

FACTS

Cara Starr was awakened by the doorbell of her Bellevue condominium home at approximately 3:30 a.m. on Sunday, March 31, 2004. Starr, a criminal defense attorney, was not expecting any visitors and looked through her window before opening the door. No one was at the door, but she could see her automobile in its carport "engulfed" in flames. Another condominium resident saw the fire and noticed a car parked on a nearby street speed away so fast that the back of the car fishtailed. Other residents then ventured outside. The owner of the car parked next to Starr's in the carport tried to move his vehicle, but could not because of the intense heat. Later examination of the scene showed that a two-gallon can of gasoline had been placed under the car and ignited by a string of "Mighty Mite" firecrackers.

Verbatim Report of Proceedings (VRP) (Mar. 22, 2004) at 54-55.

That morning, Starr provided police with legal paperwork relating to Allen Parmelee, who she believed was responsible for the arson. At that time, Starr was defending a civil lawsuit and Parmelee was acting as a paralegal and process server for the plaintiff in the lawsuit, attorney Roger Madison. Parmelee had been notably hostile when he visited Starr's office and appeared to have an unusual relationship with Madison that included living with him. Knowing that Madison was litigating child custody issues with his ex-wife, and aware of Parmelee's criminal history, Starr had informed the ex-wife's attorney that Parmelee resided with Madison. That attorney then sought a court order requiring Madison to evict Parmelee, which, according to State's witnesses, greatly angered Parmelee.

On April 2, two days after her car was burned, Starr observed that a fence across the street from her law office had been vandalized, with "I own you, Cara" scratched into the surface in very large letters. The next day, Parmelee again came to Starr's office to serve papers, this time accompanied by a man Starr later identified as the defendant Rick Stone.

VRP (Mar. 24, 2004) at 49.

Parmelee later created legal papers reciting that someone else was with him that day to witness the service, but that claim was ultimately shown to be false.

After Parmelee evaded attempts at conventional surveillance, the police resorted to using a tracking device on his vehicle. On April 14, the device showed an hour and a half stop at Stone's house. On May 10, police served search warrants at Stone's house and Madison's house. They arrested Parmelee and attempted to arrest Stone, but learned he was out of state. Stone was eventually arrested on a warrant.

Madison was also initially arrested but was eventually cleared of involvement in the fire and became a witness for the State.

When police searched Madison's house they found evidence of fraudulent community service documents created by Parmelee for Stone and others. Police also recovered a letter from prison inmate Scott Freeburg, who had introduced Madison to Parmelee, in which Freeburg referred to Stone as someone who, in exchange for payment, could get things done that Parmelee might not "want to personally be tied to." In the second search, police discovered Mighty Mite firecrackers in Stone's garage. Although it could not be conclusively determined that the firecrackers used in the arson came from the package found at Stone's residence, an expert opined that they were "strikingly similar." Police also found letters from Freeburg to Stone. After Stone's arrest, he and Parmelee were housed in separate jails. Jailers intercepted a letter sent by Parmelee to Stone urging coordination of their stories.

VRP (Mar. 30, 2004) at 55-56.

VRP (Mar. 25, 2004) at 11.

Stone and Parmelee were both charged with one count of first degree arson and one count of malicious destruction of property by explosion. Parmelee was also charged in connection with the previously unresolved 1998 arson of his ex-wife's attorney's car in Shoreline and with a count of intimidating a public servant for a separate incident involving jail staff.

The State's theory at trial was that Stone set the fire at Parmelee's behest.

Both defendants moved to sever their trials. The trial court denied the motions to sever the arson and explosion counts but granted the motion to sever Parmelee's intimidation count. At trial, Stone did not testify, but presented an alibi defense through the testimony of his girlfriend. Each defendant proposed and received a lesser included offense instruction for second degree arson as to the Starr fire. Stone was convicted of first degree arson and acquitted of malicious destruction by explosion.

The jury likewise acquitted Parmelee of the malicious destruction charge, convicted him of first degree arson for the Starr fire, and convicted him of the 1998 Shoreline arson.

At sentencing, Stone contested the State's calculation of his offender score. He specifically challenged the State's claim that a 1995 Oregon conviction for Unauthorized Use of a Vehicle was comparable to a Washington conviction for Taking a Motor Vehicle Without Permission. Stone also argued that two 1995 Washington second degree theft convictions constituted the same criminal conduct and should, therefore, count as only one point in his offender score. The court resolved both challenges in favor of the State and imposed a standard range sentence, including the obligation to pay restitution. Stone appeals.

DECISION

Stone raises two challenges to the sufficiency of the evidence to support the jury's verdict. He first contends that there was insufficient proof of the essential element that the fire was "manifestly dangerous to any human life" under RCW 9A.48.020(1)(a) to render the crime first degree arson. Stone also argues that there was insufficient evidence to show his personal complicity in the Starr vehicle fire regardless of the proper degree of the crime.

A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences to be drawn from that evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Evidence is sufficient to support a conviction if a reasonable jury could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). The court considers circumstantial evidence and direct evidence equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

RCW 9A.48.020(1)(a) states in part:

(1) A person is guilty of arson in the first degree if he knowingly and maliciously:

(a) Causes a fire or explosion which is manifestly dangerous to any human life, including firemen.

Stone points to RCW 9A.48.030, which defines arson in the second degree as setting a fire that "damages a building, or any structure or erection appurtenant to or joining any building, or any wharf, dock, machine, engine, automobile, or other motor vehicle." He contends that the State's evidence about the dangers of car fires was so generic that for this court to hold it sufficient to support the jury's verdict would potentially render all car fires first degree arson, contrary to the legislative intent embodied in the statutory distinction between arson in the first and second degree.

Had the State relied only on the fire's danger to firefighters to justify the first degree arson charge, Stone's argument might have merit. No firefighter from the Starr fire testified. Even the civilian witnesses did not testify about how many firefighters responded, what methods they used to extinguish the fire, or how closely they approached the fire.

In response to Stone's challenge, the State cites expert testimony by Shoreline Fire Department Battalion Chief Richard Ashleman and Department of Alcohol, Tobacco and Firearms Agent Dane Whetsel. Ashleman and Whetsel testified about the potential for explosions arising from the pressurized devices and systems in modern automobiles and the potential for gasoline vapors to build up under the hood and elsewhere. However, accepting this generalized evidence as sufficient could effectively convert any automobile arson to which firefighters respond into first degree arson, contrary to the apparent intent of the legislature.

Nonetheless, we conclude that sufficient particularized evidence about this fire demonstrated the existence of a manifest danger to residents of the condominium to support the jury's verdict. Starr's condominium complex consists of approximately twenty buildings, each containing as many as eight units. Several units face the site of the fire, and one was only 30 feet from the burning car. Starr's car was parked right next to at least one other vehicle in the same carport. Eyewitnesses described the fire as beginning on one side of Starr's car, swiftly flaring up to engulf the entire vehicle and reaching the roof of the carport, and ultimately destroying Starr's car and damaging the adjacent vehicle. Unrebutted expert evidence demonstrated that the fire reached temperatures of 750 to 850 degrees fahrenheit. One resident of the complex was on the telephone with a 911 operator when the tires on Starr's car exploded. The sound was loud enough that, even with the caller's telephone 150 feet from the fire, the operator heard the explosion and asked what had just happened. Clearly, anyone near this fire was at serious risk.

The State acknowledged at oral argument that this was its primary theory at trial.

VRP (March 24, 2004) at 87.

Starr's neighbor Benito Chew, whose car was parked next to hers, testified that he ran outside in his bare feet and tried to move his car away from the carport but was turned back by the heat. Shawn Kelly, whose apartment was approximately 30 feet from Starr's flaming automobile, testified that he restrained a resident, presumably Chew, from trying to move a car away from the fire, because he feared for that person's safety. Kelly also woke everyone in the building nearest the burning car because he was concerned that it might explode and harm people inside.

VRP (March 23, 2004) at 83.

In State v. Plewak, 46 Wn. App. 757, 732 P.2d 999 (1987), the defendant challenged the sufficiency of the evidence to support a jury's finding that fires he set in two detached garages were "manifestly dangerous to any human life." A panel from Division II of this court disagreed:

That determination is a question of fact. State v. Young, 87 Wn.2d 129, 550 P.2d 1 (1976). Considerations include the presence of occupants, combustibility, and proximity to other structures. Young, 87 Wn.2d at 133. Further, "in a civilized city such as Tacoma, experience teaches that one of the certainties attendant upon a hostile fire is that firemen will be called and will come the arsonist can anticipate that firemen will be endangered." State v. Levage, 23 Wn. App. 33, 35, 594 P.2d 949 (1979). Plewak, 46 Wn. App. at 763.

The Plewak court rejected the contention that firefighters must actually encounter a danger for it to be manifest, reasoning that "[d]anger is not measured by the harm done, but rather by the potential for harm." 46 Wn. App. at 763. The court concluded that evidence firefighters had to enter one of the garages while it was still burning and that power lines above the other fire added an additional risk was sufficient because "[t]he potential for harm was clearly evident to the senses and the mind." 46 Wn. App. at 763-64.

Because danger is measured by the potential for harm, the fact that no condominium resident was next to Starr's car at the wrong time did not prevent the jury from rationally finding the presence of a manifest danger. Just as the Plewak court reasoned that an arsonist should anticipate that firefighters will be endangered by fires set in unattached garages, the jury here could properly conclude that the arsonist setting this fire should have anticipated its danger to Starr's neighbors, who might well attempt to protect their cars, apartments, or other property.

In a statement of supplemental authority filed after oral argument, Stone cites State v. Dennison, 54 Wn. App. 577, 582, 774 P.2d 1237 (1989), contending Dennison suggests an arsonist would not be liable for the death of a bystander who rushes into flames to rescue property because such an unreasonable response is not foreseeable. Dennison is unhelpful for at least three reasons. First, Dennison involved liability for felony murder, not first degree arson. Second, the dicta that Stone cites does not suggest such a response from a bystander would be unforeseeable, merely that it would be abnormal. Finally, even if we considered `abnormal' the same as `unforeseeable' and further assumed the causation requirement of felony murder sufficiently analogous to the definition of `manifest danger' at issue here, Stone's view of negligent behavior by a victim as a defense was rejected by our Supreme Court in State v. Leech, 114 Wn.2d 700, 790 P.2d 160 (1990). There, the defendant was convicted of the felony murder of a fire fighter who died of carbon monoxide poisoning while fighting a fire set by the defendant. The defendant argued the evidence was insufficient to prove his act of committing arson was the proximate cause of the fire fighter's death because the fire fighter negligently allowed his breathing apparatus to run out of oxygen. The Supreme Court, however, held that `[s]ince [the fire fighter's] failure to use the apparatus would not have killed him had the defendant not set the arson fire, the defendant's conduct in setting the fire was a proximate cause of [the fire fighter's] death.' 114 Wn.2d at 705.

Stone next contends that evidence of his personal complicity was insufficient to support the jury's determination that he committed the arson. He points out that there was no showing that he had any personal animus towards Starr and that not one item of evidence conclusively proved that he was the arsonist.

The applicable standard of review requires us to draw all reasonable inferences in favor of the State, however, which means that we assume that the jury disbelieved the alibi testimony provided by Stone's girlfriend while believing Madison's testimony about Madison's innocence and Parmelee's motive. Stone's introduction to Parmelee, their association during the relevant time, and the attempts to coordinate their stories and cover up Stone's presence at Starr's office suggests complicity between the two. The firecrackers in Stone's garage and those used to start the fire were very similar to each other, differing from similarly-sized brands in the materials used in their construction. Stone's car and driving habits were consistent with the car seen speeding and "fishtailing" away from the fire. Finally, Stone's reaction when he heard the FBI was looking for him — telling his boss "you don't even want to know" why, crying, and handing over all his property, can reasonably be viewed as inculpatory. Considered in its totality, the evidence was sufficient to support the jury's verdict. Stone also challenges the trial court's denial of his motion to sever. Granting or denying a severance motion is entrusted to the discretion of the trial court, whose decision will not be disturbed on appeal absent a manifest abuse of that discretion. State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991). Separate trials for jointly charged defendants are not favored in Washington. Hoffman, 116 Wn.2d at 74. Defendants seeking severance have the burden of demonstrating that a joint trial would be so manifestly prejudicial as to outweigh the concern for judicial economy. Hoffman, 116 Wn.2d at 74. To meet this burden, the defendant must show specific prejudice. State v. Alsup, 75 Wn. App. 128, 131, 876 P.2d 935 (1994). The appellate court may infer specific prejudice from the following:

VRP (Mar. 30, 2004) at 37-38.

"(1) antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive; (2) a massive and complex quantity of evidence making it almost impossible for the jury to separate evidence as it related to each defendant when determining each defendant's innocence or guilt; (3) a co-defendant's statement inculpating the moving defendant; (4) or gross disparity in the weight of the evidence against the defendants." State v. Jones, 93 Wn. App. 166, 171-72, 968 P.2d 888 (1998) (quoting State v. Canedo-Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995)).

Although Stone argued before trial that he and Parmelee had antagonistic defenses, that proved not to be the case. On appeal, Stone's primary assertion of prejudice is the disparity in the amount of evidence against him compared with that against Parmelee. Stone is correct that some of the evidence presented, particularly that relating to the 1998 arson fire, would not have been admissible against him in a separate trial. But "[t]he mere fact that evidence may be admissible against one defendant and not against another is not in and of itself proof that the two defendants cannot have a fair trial if tried together." State v. Courville, 63 Wn.2d 498, 501, 387 P.2d 938 (1963). See also State v. Philips, 108 Wn.2d 627, 640, 741 P.2d 24 (1987). A proper limiting instruction may avoid potential prejudice. Courville, 63 Wn.2d at 501. Here, the trial court properly instructed the jury that:

We disagree, however, with Stone's contention that all evidence of uncharged acts by Parmelee would necessarily have been inadmissible under ER 404(b). The trial court found the other bad acts evidence admissible under the common scheme or plan rationale of ER 404(b). The State's theory was that Parmelee used accomplices to aid in terrorizing his victims by giving an impression of a network of criminal associates and further to create deniability by setting up alibis in advance. Under the facts of this case, proving that Parmelee's plan involved the use of an accomplice inferentially helped to prove that Stone was that accomplice.

A separate crime is charged against one or more of the defendants in each count. The charges have been joined for trial. You must decide the case of each defendant or each crime charged against that defendant separately. Your verdict on any count as to any defendant should not control your verdict on any other count or as to any other defendant.

Clerk's Papers at 272.

Stone further argues that, even considering only evidence of the count charged against both men, there was a gross disparity between the evidence against him and the evidence against Parmelee. But the State's theory of its case as to the Starr arson was that it was essentially a conspiracy between Stone and Parmelee. That being so, the evidence against Parmelee properly served as evidence against Stone. Moreover, the jury's not guilty verdict on the explosion count demonstrates the jury's ability to discern the strengths and weaknesses of the State's claims, and suggests that the jury properly followed the court's instruction to decide each count and defendant separately. Stone has failed to show specific prejudice justifying a new trial.

Stone next challenges two components of the calculation of his offender score: the inclusion of one point for an Oregon conviction of "Unlawful Use of a Vehicle" under Oregon Revised Statute 164.135, and the conclusion that his 1995 Washington second degree theft convictions did not involve the same criminal conduct.

To classify an out-of-state conviction according to Washington law, the sentencing court must compare the elements of the out-of-state offense with the elements of comparable Washington offenses. State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998). As Stone notes, Division II recently held that Oregon's "unlawful use" statute includes a broader range of activity than Washington's taking a motor vehicle without permission statute. State v. Jackson, 129 Wn. App. 95, 117 P.3d 1182 (2005). We agree with the Jackson decision. The Oregon statute precludes unauthorized use of any "boat or aircraft" as well as motor vehicles. It further includes "exercis[ing] control over" prohibited items within its definition of "unauthorized use," which is broader than the Washington statute that prohibits "tak[ing] or driv[ing] away any automobile or motor vehicle." Former RCW 9A.56.070 (1975). Here, as in Jackson, the State makes no showing that Stone's conviction was not for conduct outside the reach of the Washington statute.

At oral argument, the State declined to argue that Jackson was incorrectly decided. Instead, the State suggested that it should make a difference that there was no objection to comparability at sentencing in Jackson, while there was such an objection here. But the only effect of this difference is that because Stone raised the issue, the State may not present additional facts on remand to establish comparability. State v. Ford, 137 Wn.2d 472, 485, 973 P.2d 452 (1999).

The State also contends that Stone affirmatively acknowledged comparability by not appealing an earlier Washington sentence listing the Oregon offense as "counting." But that argument fails because Stone affirmatively challenged the comparability of the Oregon conviction in this proceeding. Resentencing is required.

The State's argument, properly labeled, is really an unsupported claim of collateral estoppel. But case law has established that when a defendant objects to a foreign conviction, the State cannot meet its burden of establishing comparability by providing prior Washington judgments reflecting convictions from other jurisdictions `unless the State additionally proves that the defendant in fact knowingly, intelligently and voluntarily waived his right to object to use of the convictions in a prior proceeding.' State v. Wilson, 113 Wn. App. 122, 137, 52 P.3d 545 (2002) (citing State v. Cabrera, 73 Wn. App. 165, 169-70, 868 P.2d 179 (1994)). The State made no such showing here.

Because we follow Jackson and conclude that the State failed to meets its burden of showing comparability, we need not resolve Stone's alternative claim that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), require any factual determinations necessary to a comparability determination be made by a jury.

As for the two 1995 second degree theft convictions, the judgment and sentence established those crimes were committed on the same day and their sentences were imposed concurrently. The trial court noted, however, that two different names were listed in the no contact order section of the judgment and sentence. From that, the court inferred that each crime had a separate victim, although it acknowledged other explanations were possible and indicated it would entertain a motion to reconsider if the defense could prove otherwise.

Pursuant to RCW 9.94A.589(1)(a), if two or more offenses encompass the same criminal conduct, the sentencing court must count the offenses as one crime. State v. Roose, 90 Wn. App. 513, 515-16, 957 P.2d 232 (1998). Multiple offenses encompass the same criminal conduct if they require the same criminal intent, are committed at the same place and time, and involve the same victim. State v. Williams, 135 Wn.2d 365, 367, 957 P.2d 216 (1998). The absence of any one of these three elements precludes a finding that the offenses constitute the same criminal conduct. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). The State bears the burden of proving that current convictions do not constitute the same criminal conduct. State v. Dolen, 83 Wn. App. 361, 365, 921 P.2d 590 (1996). The trial court's determination of what constitutes the same criminal conduct for purposes of calculating an offender score will be reversed only for an abuse of discretion or misapplication of the law. State v. Burns, 114 Wn.2d 314, 317, 788 P.2d 531 (1990).

Though the State argues the defendant has the burden of proving prior offenses are the same criminal conduct, the relevant statute provides that a `current sentencing court may presume that prior offenses were not the same criminal conduct from sentences imposed on separate dates, or in separate counties or jurisdictions, or in separate complaints, indictments, or informations.' RCW 9.94A.525(5)(a)(i) (emphasis added). When, as here, these conditions are not present and the court therefore may not rely on the statutory presumption, the State retains the burden of showing prior crimes are not the same conduct. The cases the State cites, In re Pers. Restraint of Connick, 144 Wn.2d 442, 28 P.3d 729 (2001) (overruled on other grounds by In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002)), and State v. Wilson, 117 Wn. App. 1, 21-22, 75 P.3d 573 (2003), are properly distinguished because the defense failed to raise the issue of same criminal conduct in the sentencing court in those cases.

The trial court reasonably concluded that, while other explanations are possible, here the most reasonable and likely explanation for the two names in the no contact order is that they were indeed the two victims of the two thefts. Every theft crime requires a victim who owns the property stolen. Because there was no evidence to contradict the rational inference drawn by the sentencing court, it could properly find that the preponderance of the evidence was in the State's favor. The sentencing court did not abuse its discretion or misapply the law by so finding.

Finally, Stone contends the restitution order entered violated his right to a jury trial under the Blakely and Apprendi decisions. But our Supreme Court recently rejected this claim, stating that "[t]here is no right to a jury trial to determine facts on which restitution is based." State v. Kinneman, 155 Wn.2d 272, 282, 119 P.3d 350 (2005).

We affirm Stone's conviction for arson in the first degree and remand for resentencing without the inclusion of a point in Stone's offender score for the Oregon unauthorized use of a vehicle conviction.

COX and AGID, JJ., concur.