author: JOHNSON, J.

text:
    STATE of Washington, Petitioner, v. Matthew Sean MCCARTHY, Respondent.
    In the Matter of the Personal Restraint of Matthew Sean McCarthy, Petitioner.
    No. 96653-2
    Supreme Court of Washington.
    Oral Argument Date: June 27, 2019 Filed AUGUST 08, 2019
    Gretchen Eileen Verhoef, Spokane County Prosecutors Office, 1100 W. Mallon Avenue, Spokane, WA 99260-0270 for Petitioner.
    Tanesha La Trelle Canzater, Attorney at Law, P.O. Box 29737, Bellingham, WA 98228-1737 for Respondent.
   JOHNSON, J.

¶ 1 This case concerns two issues: whether under RCW 10.77.060(1)(a) the trial court erred, during trial, in not ordering a third competency hearing after a jury had previously found the defendant competent to stand trial, and what deference, if any, is given to the trial court when it does not sua sponte order a competency hearing. Matthew McCarthy's appellate counsel contends that McCarthy's mental health deteriorated and that the trial court erred in not sua sponte ordering another competency evaluation either before or during McCarthy's third strike burglary trial. A jury found McCarthy guilty of first degree burglary, and he was sentenced to life in prison as a most persistent offender. The Court of Appeals engaged in what the parties characterize as an independent review of the record, held that the trial court should have ordered another evaluation, and vacated the conviction. The State petitioned for review. We reverse the Court of Appeals. The proper standard of review is abuse of discretion, and the trial court did not abuse its discretion when it did not sua sponte order a competency evaluation based on the evidence presented during the criminal proceedings. We reverse and remand to the Court of Appeals for consideration of the remaining issues raised in McCarthy's personal restraint petition.

FACTS AND PROCEDURAL HISTORY

¶ 2 On September 21, 2014, McCarthy approached a stranger's home under a mistaken belief that he would find his ex-wife within the home. He forced his way into the home and pushed the occupant against the wall. He returned twice the next evening: the first time once again looking for his ex-wife and the second time looking for his cell phone. Out of these events, the State charged McCarthy with first degree burglary predicated on assault. The State notified him that this was a most serious offense and that he was facing life in prison without parole due to his criminal history.

¶ 3 Prior to McCarthy's arraignment, his public defender, Kari Reardon, expressed to the court that she had reason to doubt McCarthy's competency to stand trial. The trial court ordered a competency evaluation and stayed the proceedings.

McCarthy objected to the initiation of competency proceedings against his will because he believed himself to be competent. Dr. Daniel Lord-Flynn conducted an evaluation and diagnosed McCarthy with bipolar disorder with nonbizarre delusions, and various substance abuse disorders. Dr. Lord-Flynn initially found McCarthy had a detailed understanding of the legal proceedings against him and the ability to assist in his own defense, and he tentatively believed McCarthy was competent to stand trial. After receiving more information from attorney Reardon, Dr. Lord-Flynn changed his opinion and concluded that McCarthy was incompetent to stand trial as he could not assist in his own defense. Based on Dr. Lord-Flynn's opinion, the trial court ordered a 90-day competency restoration period.

¶ 4 McCarthy maintained he was competent and requested a second opinion, which resulted in the appointment of Dr. Debra Brown. Dr. Brown evaluated McCarthy and found him incompetent to stand trial because of his inability to work with Reardon. After the first 90-day restoration treatment, Dr. Lord-Flynn changed his conclusion and found McCarthy capable of assisting in his own defense but only with another attorney. The trial court held another hearing and, based on the conflicting evidence, ordered a second 90-day competency restoration period.

¶ 5 After the second restoration treatment, Dr. Lord-Flynn, with Dr. Brown observing, evaluated McCarthy again. At this interview, McCarthy spoke about the case and his defense, indicated he understood the charges and what the prosecutor needed to prove, and again expressed that he did not trust Reardon to be his attorney. Dr. Lord-Flynn added a diagnosis of antisocial personality disorder but concluded McCarthy was competent to stand trial. The trial court then ordered a jury trial to determine if McCarthy was competent.

¶ 6 A different judge presided over the competency trial. During that trial, McCarthy testified that he believed he was competent but agreed there may have been reasons to doubt competency earlier in the case. Both experts testified about their opinions, including that they both found McCarthy suffered from bipolar disorder with paranoid, nonbizarre delusions and irrational thought, but they differed as to whether he was competent. Dr. Brown discussed McCarthy's conspiracy theories and inability to trust his attorney. She opined that because McCarthy's version of the facts did not make sense, that he thought others were out to get him, and that his asserted defense was not viable, he could not assist his attorney in his own defense and, thus, was not competent. She also testified that while testifying that day, McCarthy still exhibited signs of paranoia and delusions.

¶ 7 Dr. Lord-Flynn disagreed, testifying that McCarthy was calm when he testified and his behavior was dramatically different from previous interactions. Dr. Lord-Flynn explained that McCarthy's bipolar disorder was being treated, he was taking his medications, and Dr. Lord-Flynn had found him competent. He testified McCarthy was intelligent and at the time was able to understand the consequences of his different legal options and could assist in his defense. The jury found McCarthy competent to stand trial. At his arraignment following the verdict, McCarthy pleaded not guilty. The court then allowed Reardon to withdraw as counsel and agreed to appoint another public defender.

¶ 8 At McCarthy's next hearing, in front of the same judge as the competency trial, the court heard McCarthy's motion to proceed pro se with the potential to have Dennis Dressier as standby counsel. McCarthy indicated he wanted to proceed pro se because of governmental misconduct and harassment within the jail. The trial court inquired into McCarthy's education, familiarity with the law, and his understanding of the consequences. The court asked if Dressier had any input. Dressier indicated that he had read McCarthy's filings with the court and stated that he had "seen a lot worse" from lawyers and that McCarthy had been diligent in learning how to handle the matters. 4 Verbatim Report of Proceedings (VRP) (May 13, 2016) at 709. The trial court granted McCarthy's request, finding McCarthy knowingly, voluntarily, and intelligently waived his right to an attorney, and Dressier was appointed in limited scope as standby counsel. The State raised concerns about delusions resurfacing based on McCarthy's beliefs that his ex-wife was working in the county jail mail room and that his jailers were out to get him. The judge stated,

I understand the State's concern. We went through a whole competency trial. You were found to be competent. In listening to you today, you don't sound a whole lot different than you did at the competency trial. You seem to understand the process, the procedure, where you are in this case, and it seems that you have some defense. Whether or not it's a defense that other people would choose is a separate question.
I think what we'll do is have you come back to check on you, though, to make sure you're doing okay. If there does appear to be issues of competency, then we might have to start this whole thing over again.

4 VRP (May 13, 2016) at 716.

¶ 9 In subsequent proceedings, in front of different judges, McCarthy continued to express delusional beliefs and file corresponding motions. Although McCarthy indicated that the court was to monitor his mental health, no one questioned McCarthy's competency. In a petition for a writ of habeas corpus, McCarthy alleged his jailers were harming him with toxic fumes, prohibiting him from reviewing his discovery. The court held a later hearing with jail staff testifying to address McCarthy's allegations within the jail but twice delayed ruling on the petition for writ of habeas corpus. The record does not contain a subsequent hearing on these allegations of the toxic fumes.

¶ 10 At a pretrial hearing, the parties discussed the witnesses McCarthy wanted to call and why, among other pretrial issues. McCarthy continued to allege that there was a conspiracy between his ex-wife and the burglary victim and that there had been governmental misconduct. He also had rejected the State's plea deal, which would have allowed him to avoid persistent offender status by pleading guilty to a nonstrike offense.

¶ 11 At this point, the State again alerted the court that there may be "slippage" due to McCarthy's delusions about the toxic fumes and other governmental misconduct. VRP (July 15, 2016) at 96. The trial court expressed concerns about McCarthy's ability to represent himself, and McCarthy then agreed to allow Dressier to be his counsel for the trial. Neither the trial court nor the parties questioned McCarthy's competence.

¶ 12 The case proceeded to trial where McCarthy testified and described the facts from his point of view. Based on the trial record, McCarthy appeared coherent in his recitation and there is no indication of any irrational behavior or outbursts. When he arrived for the reading of the verdict, McCarthy wore "jail clothes" although he was told he could wear "street clothes." 2 VRP (Sept. 21, 2016) at 253. Dressier stated, "Although I would prefer him being in civilian attire, I have to assume Mr. McCarthy knows what he's doing. I never have had any thoughts otherwise ." 2 VRP (Sept. 21, 2016) at 254 (emphasis added). McCarthy was convicted of first degree burglary and sentenced to life as a persistent offender.

¶ 13 McCarthy filed a personal restraint petition in the Court of Appeals, again alleging governmental misconduct. Shortly after, Dressier filed a notice of appeal. The Court of Appeals consolidated the cases. In her Court of Appeals brief, McCarthy's appellate counsel alleged that McCarthy's delusions about governmental misconduct and the relationship between his ex-wife and the victim were a sufficient basis to doubt his competency and that the trial court abused its discretion in not sua sponte ordering another competency hearing. In his briefing, McCarthy still contended he was competent. See Statement of Additional Grounds for Review at 18 (Wash. Ct. App. No. 34859-8-III (2017)) ("Incompetence is not the real issue here.").

¶ 14 The Court of Appeals, based on its review of the record, agreed that reasons existed to doubt McCarthy's competency, vacated his conviction, and remanded to the trial court. See State v. McCarthy, 6 Wash. App. 2d 94, 143-44, 429 P.3d 1086 (2018). The State petitioned for review, arguing that the Court of Appeals applied the wrong standard of review and the proper standard of review should be abuse of discretion, and that the trial court did not abuse its discretion; further, even if error occurred, the proper remedy is to remand for an evidentiary hearing on whether McCarthy was competent at the time of trial. We granted review. State v. McCarthy, 192 Wash.2d 1023, 435 P.3d 265 (2019).

ANALYSIS

¶ 15 The due process clause of the Fourteenth Amendment to the United States Constitution guarantees an accused the fundamental right not to stand trial if he is legally incompetent. State v. Ortiz-Abrego, 187 Wash.2d 394, 402-03, 387 P.3d 638 (2017). This principle is codified under RCW 10.77.050, which states, "No incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues." Under the statutory definition, " '[i]ncompetency' means a person lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect." RCW 10.77.010(15).

¶ 16 "Chapter 10.77 RCW governs the procedures and standards trial courts use to [assess] the competency of defendants to stand trial." State v. Coley, 180 Wash.2d 543, 551, 326 P.3d 702 (2014).

¶ 17 Under Washington's statutory scheme,

[w ]henever ... there is reason to doubt [the accused's] competency, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate a qualified expert or professional person, who shall be approved by the prosecuting attorney, to evaluate and report upon the mental condition of the defendant.

RCW 10.77.060(1)(a) (emphasis added). When making the determination of whether a competency hearing is necessary, the factors the trial court considers include the defendant's behavior, demeanor, appearance, personal and family history, and psychiatric reports. In re Pers. Restraint of Fleming, 142 Wash.2d 853, 863, 16 P.3d 610 (2001). In addition, we have recognized that the trial court should afford "considerable weight" to a defense attorney's opinion regarding his or her client's competency. State v. Lord, 117 Wash.2d 829, 901, 822 P.2d 177 (1991).

¶ 18 Here, the trial court did not sua sponte refer McCarthy for an additional competency hearing after a jury found him competent. We must initially determine the standard of review to review the trial court's decision. Although the briefing at times characterizes this issue as challenging the trial court's "decision," no such decision exists. Instead, it is the trial court's failure to order a new competency hearing, although it makes no substantive difference to the analysis.

1. Standard of Review

¶ 19 The parties disagree as to whether appellate courts should give deference to the trial court when a trial court judge does not order a competency evaluation or hearing where no request is raised. The State contends that the proper standard of review is abuse of discretion. McCarthy's counsel instead urges that the appellate court engage in an independent review of the record, given that this is a matter of constitutional significance. ¶ 20 In State v. Sisouvanh, 175 Wash.2d 607, 620, 290 P.3d 942 (2012), to address whether Sisouvanh's competency evaluation was adequate, we first needed to determine the appropriate standard of review. In holding that the standard of review for the adequacy of a competency evaluation is abuse of discretion, we noted that "various decisions by the trial court regarding competency are subject to an abuse of discretion standard." Sisouvanh, 175 Wash.2d at 620, 290 P.3d 942. We also explained,

An abuse of discretion standard often is appropriate when (1) the trial court is generally in a better position than the appellate court to make a given determination, (2) a determination is fact intensive and involves numerous factors to be weighed on a case-by-case basis, (3) the trial court has more experience making a given type of determination and a greater understanding of the issues involved, (4) the determination is one for which "no rule of general applicability could be effectively constructed," and/or (5) there is a strong interest in finality and avoiding appeals.

Sisouvanh, 175 Wash.2d at 621, 290 P.3d 942 (citations omitted) (quoting In re Parentage of Jannot, 149 Wash.2d 123, 127, 65 P.3d 664 (2003) ). As in Sisouvanh, all of these factors support applying an abuse of discretion standard for failure to sua sponte order another competency hearing where no motion or request is made for another hearing.

¶ 21 Similarly, in Fleming we applied the abuse of discretion standard to a failure to order a competency hearing. Under that standard, we found the judge did not err in not ordering a competency evaluation where the "trial judge did not see any irrational behavior in the courtroom, nor were there any psychiatric reports given to the trial court judge." 142 Wash.2d at 863, 16 P.3d 610. We have also applied the abuse of discretion standard to a trial court's decision whether defense counsel has met the threshold "reason to doubt ... competency" such that a trial court must order a competency hearing, affirming the trial court's decision that counsel had not met the threshold. Lord, 117 Wash.2d at 904, 822 P.2d 177.

¶ 22 Applying the reasoning from our cases, we hold that whether a trial court should have sua sponte ordered a competency evaluation is also reviewed for abuse of discretion.

2. Discretion To Order Additional Competency Hearings

¶ 23 Applying an abuse of discretion standard, a reviewing court will find error only when the trial court's decision is manifestly unreasonable or is based on untenable grounds. Sisouvanh, 175 Wash.2d at 623, 290 P.3d 942. Although the appellate court reviews the relevant record, it does so not to come to its own conclusions; the focus is to determine if the trial court's exercised discretion was reasonable and tenable. Therefore, in the present case, if the issue of competency is " 'fairly debatable,' " failure to order a subsequent evaluation does not violate RCW 10.77.060, and the trial court did not abuse its discretion. Sisouvanh, 175 Wash.2d at 623, 290 P.3d 942 (internal quotation marks omitted) (quoting Walker v. Bangs, 92 Wash.2d 854, 858, 601 P.2d 1279 (1979) ).

¶ 24 RCW 10.77.060(l)(a) requires the trial court to order a competency hearing whenever there is a reason to doubt competency. This requirement continues even after a determination of competency. However, once there has been a determination that a defendant is competent to stand trial, a trial court need not revisit the issue of competency unless some objective incident or event occurs where the court is provided with new information that indicates a significant change in the defendant's mental condition.

State v. Ortiz , 119 Wash.2d 294, 301, 831 P.2d 1060 (1992) (plurality opinion). The Court of Appeals has similarly found that a reason to doubt is "not definitive, but vests a large measure of discretion in the trial [court]." City of Seattle v. Gordon, 39 Wash. App. 437, 441, 693 P.2d 741 (1985).

¶ 25 Washington courts have found that a trial court errs in not ordering a competency evaluation when there is significant evidence that the defendant is not competent, especially where the record includes evidence from expert witnesses and defense counsel. For example, in State v. Marshall, 144 Wash.2d 266, 279, 27 P.3d 192 (2001), we vacated Marshall's guilty plea because of the "ample evidence" before the court that called his competency into question. In that case, in addition to the motion to vacate the plea due to incompetency, Marshall provided the court with expert testimony indicating that Marshall suffered from a high level of brain atrophy, below average intelligence, and diagnoses of bipolar disorder, depression, and paranoid schizophrenia. One expert testified that Marshall did not understand he could go to prison if he pleaded guilty. Another witness testified that Marshall stated he did not intend to kill the victim, yet he still pleaded guilty to premeditated murder. The trial court denied the motion despite finding Marshall had a mental impairment. We held that given the substantial evidence calling Marshall's competency into question when he pleaded guilty, the trial court erred in not ordering a competency hearing or granting the motion to vacate Marshall's guilty plea. Marshall, 144 Wash.2d at 281, 27 P.3d 192.

¶ 26 Similarly, in State v. Fedoruk, 5 Wash. App. 2d 317, 339-40, 426 P.3d 757 (2018), review denied, 192 Wash.2d 1012, 432 P.3d 792 (2019), the Court of Appeals reversed Fedoruk's conviction when new information arose during trial that brought competency into question. Fedoruk had been found to be competent after many months of concerning behavior. However, at trial, Fedoruk began exhibiting "extreme behavior that was similar to behavior he displayed in past mental breakdowns." Fedoruk, 5 Wash. App. 2d at 337, 426 P.3d 757. This included screaming in an unintelligible language, the need to be increasingly physically restrained due to his inability to remain composed, interrupting witnesses, collapsing on the floor, and other disruptive behaviors. At first, Fedoruk's counsel expressed concern about Fedoruk's mood, but as the trial went on, counsel moved for a mistrial based on what was happening in the courtroom. The trial court denied the motion, finding that any need for a mistrial was due to Fedoruk's behavior. In that case, after trial, the trial court did order a competency evaluation, and a psychologist found Fedoruk was in a psychotic state and not competent to proceed with sentencing. On appeal, the Court of Appeals vacated the conviction and held that the trial court abused its discretion when it failed to consider if Fedoruk was competent to stand trial. Fedoruk, 5 Wash. App. 2d at 338-39, 426 P.3d 757.

¶ 27 In contrast, in Lord, the trial court denied a motion for a competency hearing, and we affirmed the denial. In support of the motion, Lord's counsel offered testimony that Lord told a correctional officer that he had spoken with the devil and that the devil asked him to " 'drink ... his own blood to prove his innocence.' " Lord, 117 Wash.2d at 901, 822 P.2d 177. Lord told the court he was competent and requested that one of his attorneys withdraw. The trial court noted Lord's counsel "had not made any assertion that Lord was unable to recall or relate facts sufficient for defense counsel to proceed." Lord, 117 Wash.2d at 902, 822 P.2d 177. Upon reviewing the record, we held that the trial court did not abuse its discretion in declining to hold a competency hearing because the "threshold burden of establishing that there was reason to doubt Lord's competency was not met." Lord, 117 Wash.2d at 903-04, 822 P.2d 177.

¶ 28 Here, McCarthy's counsel argues the trial court should have ordered an additional competency hearing when it addressed McCarthy's motions concerning his conditions in the jail and when he presented his defense theory. However, neither instance presents a situation similar to the cases finding reversible error where it was found the trial court was required to order a competency hearing. The record indicates no significant change in McCarthy's mental health that would create doubt as to whether McCarthy was incompetent as statutorily defined. It is undisputed that McCarthy understood the nature of the proceedings against him throughout this case. Thus, at issue is only whether McCarthy could assist in his defense.

¶ 29 A defendant can assist in his own defense when he "possess[es] an adequate recall of the factual events involved in the charge against him, [is] able to communicate those recollections to his attorney, and ha[s] both an intellectual and emotional appreciation of the ramifications and consequences of the crime charged." 12 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 902, at 171 (3d ed. 2004) (citing State v. Gwaltney, 77 Wash.2d 906, 468 P.2d 433 (1970) ). As in Lord, this case presents a situation where, although delusions may have been apparent, there was no evidence presented to the trial court that would cast doubt on the defendant's ability to recall facts, communicate with his attorney, or understand the ramifications and consequences of the crime.

¶ 30 While McCarthy's delusions may have changed, including allegations of toxic fumes within the jail and presenting a theory that the victim and his ex-wife were in a relationship, the judges who presided over the proceedings entertained McCarthy's motions, including bringing in jail staff to testify as to the fumes and jail conditions. No party in any of the proceedings following the competency trial raised a concern as to McCarthy's competence. No party had McCarthy evaluated again by an expert witness who could testify as to whether McCarthy was competent during the trial. When the court expressed concerns about McCarthy representing himself in a third strike case, McCarthy seemed to act reasonably by choosing to have counsel reappointed to him when the judge expressed those concerns. There is no indication that McCarthy did not retain composure during his trial. His testimony is an accurate representation of the facts as he believed them. He was coherent throughout trial, and his defense counsel stated that he never had a thought that McCarthy did not know what he was doing.

¶ 31 This case is not similar to Marshall, where multiple experts provided evidence that the defendant was not competent at the time of his plea. Nor is it similar to Fedoruk, where the defense attorney asked for another evaluation of competency when the defendant could not keep himself composed in the courtroom and was exhibiting signs of a mental breakdown. This case is similar to Lord, where we held that simply having delusions, without more, was not a sufficient showing that there was reason to doubt the defendant's competency.

¶ 32 In the present case, McCarthy's appellate counsel cannot identify any event, other than McCarthy's continuing delusions, to support the conclusion that McCarthy was incompetent to stand trial. Further, counsel provides no evidence that any delusions affected McCarthy's ability to recall facts and communicate with his attorney during the trial. Therefore, the trial court's failure to sua sponte order another competency hearing was reasonable, and the trial court did not abuse its discretion.

CONCLUSION

¶ 33 We reverse and remand to the Court of Appeals for resolution of the issues raised in McCarthy's personal restraint petition. Under the statutory scheme, the judge was not required to order another competency hearing as there was no reason to doubt McCarthy's competence.

WE CONCUR:

Fairhurst, C.J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J.

Gordon McCloud, J.

Yu, J.

      We refer to McCarthy and his counsel separately as McCarthy has, throughout the proceedings, vigorously contended that he is competent, in disagreement with his competency trial counsel and appellate counsel. McCarthy's burglary trial counsel never indicated he questioned McCarthy's competence to stand trial.

      The Court of Appeals does not specify the standard of review it used, but the parties agree it engaged in an independent review, so we refer to it as such throughout the opinion.

      Because the Court of Appeals reversed the conviction based solely on the failure to order a competency hearing, it did not resolve the other issues raised on appeal.

      "Nonbizarre delusions" are delusions that could be real but in actuality are not, such as "the FBI is surveilling me." In contrast, "bizarre delusions" are delusions of things that could not happen, such as "aliens invaded and have taken over my body." See 2 Verbatim Report of Proceedings (Jan. 27, 2016) at 383.

      See, e.g., Appellant's Opening Br. at 8-9 (Wash. Ct. App. No. 34859-8-III (2017)) ("Appellate courts will review a trial court's decision about a defendant's competency or, as here, its decision not to evaluate whether a defendant's competency continues, for abuse of discretion." (emphasis added)); Suppl. Br. of Pet'r at 2 ("Whether the trial court's decision not to refer Matthew McCarthy for additional competency evaluations was within its discretion?" (emphasis added)).

      The Court of Appeals adopted a California rule that requires another competency hearing after a determination of competency only when there is a "substantial change of circumstances or new evidence presented casting serious doubt on the validity of the prior finding of the defendant's competency." McCarthy, 6 Wash. App. 2d at 135-36, 429 P.3d 1086 (citing People v. Mendoza, 62 Cal. 4th 856, 884, 365 P.3d 297, 198 Cal. Rptr. 3d 445, cert. denied, --- U.S. ----, 137 S. Ct. 111, 196 L.Ed.2d 90 (2016) ; People v. Medina, 11 Cal. 4th 694, 734, 906 P.2d 2, 47 Cal. Rptr. 2d 165 (1995) ). The Court of Appeals adopted this rule in part because "substantial change" is, in their view, the same as "significant change" from our plurality decision in Ortiz . McCarthy, 6 Wash. App. 2d at 136, 429 P.3d 1086. There is no need to adopt an out of state rule when our case law provides a persuasive rule that is virtually indistinguishable.

      The State argues the Court of Appeals incorrectly vacated McCarthy's conviction instead of remanding for an evidentiary hearing. We need not address this issue because we reverse the Court of Appeals.


source: Caselaw Access Project

author: Dwyer, J.

license: Public Domain

text:
    STATE of Washington, Respondent, v. I.N.A., Appellant.
    No. 79587-2-I
    Court of Appeals of Washington, Division 1.
    FILED: July 29, 2019
    Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, Counsel for Appellant(s).
    Prosecuting Atty. King County, King Co. Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Benjamin Carr, King County Prosecuting Atty., 516 3rd Ave., Seattle, WA, 98104-2385, Counsel for Respondent(s).
    PUBLISHED OPINION
   Dwyer, J.

¶1 It sometimes happens that a party's litigation transgressions are so repeated, and so significant, that justice does not allow for them to be ignored. Such is the case herein.

¶2 I.N.A., a first-time juvenile offender, was sentenced to a manifest injustice disposition of 24 to 32 weeks in total confinement. She appealed. We granted the appeal expedited status. But our review has been compromised by the transgressions of the prosecutor. First, the prosecutor did not timely act to obtain the proper entry of necessary findings of fact and conclusions of law. After our clerk of court ordered him to do so, the prosecutor obtained findings and conclusions-but in an ex parte proceeding of which no notice was given to I.N.A. or her attorney of record. I.N.A. properly complained of this and briefed the issue in her merits brief. The prosecutor decided not to address the matter in the brief of respondent-other than to direct the court's attention to an entirely different pleading, in the event that the court was in any way interested in the State's thoughts on the matter.

¶3 So now we have a choice: (1) remand the matter again to the juvenile court for proper presentation and entry of findings and conclusions (a time-consuming process completely contrary to our decision to expedite this appeal), or (2) decide the case as if the findings and conclusions were never entered. Believing that the State should not be allowed to deprive an incarcerated juvenile offender of the benefit of expedited review simply by violating applicable rules of procedure, we choose the latter course. Accordingly, because the manifest injustice disposition is not supported by findings of fact and conclusions of law that set forth the juvenile court's basis for varying from a standard range disposition, we reverse with instructions to impose a standard range disposition.

I

¶4 The principles underlying our resolution of the matter are easy to elucidate.

¶5 A juvenile court may depart from a standard range disposition only if it concludes that a standard range disposition would effectuate a manifest injustice. RCW 13.40.160(2) ; State v. Tai N., 127 Wash. App. 733, 741, 113 P.3d 19 (2005) ; State v. J.N., 64 Wash. App. 112, 113-14, 823 P.2d 1128 (1992). A "manifest injustice" results if a standard range disposition "would either impose an excessive penalty on the juvenile or would impose a serious, and clear danger to society in light of the purposes" of the Juvenile Justice Act of 1977, chapter 13.40 RCW. RCW 13.40.020(19).

¶6 When a juvenile court concludes that a manifest injustice disposition is appropriate, it must "enter[ ] its reasons for its conclusion." RCW 13.40.160(2). These must be reduced to formal written findings of fact and conclusions of law if the case is appealed. JuCR 7.11(d). "The prosecution must submit such findings and conclusions within 21 days after receiving the juvenile's notice of appeal." JuCR 7.11(d).

¶7 We have previously held that "[b]asic due process and the governing criminal rules require notice of court proceedings to counsel of record." State v. Pruitt, 145 Wash. App. 784, 792, 187 P.3d 326 (2008). In that case, we also held that service upon a party's former lawyer "does not excuse [the]

failure to notify [a party's] appellate counsel, the only counsel of record at the time." Pruitt, 145 Wash. App. at 793, 187 P.3d 326. We may "disregard" findings and conclusions that are obtained without proper notice to counsel. State v. Nava, 177 Wash. App. 272, 289 n.6, 311 P.3d 83 (2013). See also State v. Corbin, 79 Wash. App. 446, 451, 903 P.2d 999 (1995) (even when trial counsel remains as counsel of record, notice should also be given to appellate counsel).

¶8 In an appellate court, it is improper to attempt to "incorporate by reference" into a party's merits brief arguments made in other pleadings. State v. Gamble, 168 Wash.2d 161, 180, 225 P.3d 973 (2010) ("argument incorporated by reference to other briefing is not properly before this court"); Diversified Wood Recycling, Inc. v. Johnson, 161 Wash. App. 859, 890, 251 P.3d 293 (2011) ("We do not permit litigants to use incorporation by reference as a means to argue on appeal or to escape the page limits for briefs set forth in RAP 10.4(b)."); Kaplan v. Nw. Mut. Life Ins. Co., 115 Wash. App. 791, 801 n.5, 65 P.3d 16 (2003). Instead, the proper approach is for the attorney to set forth the party's complete argument in the argument section of the merits brief. See RAP 10.3(a), (b).

II

A

¶9 I.N.A., a first-time juvenile offender, was originally granted a deferred disposition. She did not satisfy the conditions placed on her and the deferred disposition was properly revoked. At her new disposition hearing, a standard range disposition would have called for local sanctions, including the possibility of several days of incarceration.

The juvenile court believed the standard range to be insufficient. Hence, a manifest injustice disposition of 24 to 32 weeks of total incarceration was imposed.

¶10 As was her right, I.N.A. appealed. We granted the appeal expedited status. See RAP 18.13. Briefs have been filed. Oral argument has taken place.

¶11 As indicated above, the prosecutor did not timely secure the entry of findings of fact and conclusions of law. Only after this court, by way of a clerk's order, commanded that it be done were findings and conclusions entered. But they were entered in an ex parte proceeding, of which no notice was given to appellant or her counsel of record.

¶12 In an adult criminal case, in which sentencing is conducted pursuant to the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, the remedy for such a transgression is clear. When findings of fact and conclusions of law are not properly entered in support of an exceptional sentence upward, the appellate court should remand the matter for the proper entry of such findings. State v. Friedlund, 182 Wash.2d 388, 394-95, 341 P.3d 280 (2015). But, of course, in such situations, time is not of the essence. An exceptional sentence upward in an SRA sentencing results in a lengthy term of incarceration-hence, there is plenty of time to secure necessary findings and conclusions to permit proper appellate review.

B

¶13 But is that the proper remedy here? Is it so that the only remedy available to I.N.A. for the State's transgressions is another remand?

¶14 Two concerns are significant. First, we have already remanded this matter for the proper entry of findings and conclusions. Unfortunately, our first order did not bring about the necessary compliance. Must we simply repeat ourselves?

¶15 Second, here, time is of the essence. This is an expedited appeal. I.N.A. is serving a term of weeks-not years-in total custody. At oral argument, it became clear that, if we remand the matter yet again for proper entry of the findings and conclusions, I.N.A. will have served her entire term of incarceration before the matter can be returned to us for decision.

¶16 Our Supreme Court (and the United States Supreme Court) have made it clear that, in the criminal justice system, " 'children are different.' " State v. Houston-Sconiers, 188 Wash.2d 1, 8, 391 P.3d 409 (2017)

(quoting Miller v. Alabama, 567 U.S. 460, 480, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) ). Our Supreme Court has repeatedly cited the special concerns attendant to youth as a reason to, under appropriate circumstances, treat youthful offenders differently than we treat older offenders. See, e.g., Houston-Sconiers, 188 Wash.2d at 9, 391 P.3d 409 ; State v. Ramos, 187 Wash.2d 420, 443-44, 387 P.3d 650, cert. denied, --- U.S. ----, 138 S. Ct. 467, 199 L. Ed. 2d 355 (2017) ; State v. O'Dell, 183 Wash.2d 680, 697-98, 358 P.3d 359 (2015). Treating youthful offenders differently can, of course, mean resolving their cases differently by imposing different remedies.

C

¶17 Accordingly, in this case, given that time is of the essence, given that the passage of time can completely deprive I.N.A. of the benefit of the expedited review that she properly sought and was granted, and given that we have once before (albeit unsuccessfully) remanded this matter for proper entry of findings and conclusions, we will not yet again impose remand as a remedy. Instead, we will proceed with our review as if no findings and conclusions had been entered. This is the only fair remedy available.

III

¶18 When a juvenile's case is appealed, a manifest injustice disposition must be accompanied by written findings of fact and conclusions of law setting forth the juvenile court's reasons for not imposing a standard range disposition. RCW 13.40.160(2) ; JuCR 7.11(d). Given our resolution of the issue presented in Section II, the challenged disposition herein is not supported by the necessary findings. Thus, the juvenile court's decision cannot be upheld.

¶19 Accordingly, we remand this matter to the juvenile court with instructions to vacate the manifest injustice disposition and impose a standard range disposition.

¶20 Reversed.

WE CONCUR:

Mann, A.C.J.

Schindler, J.


author: PARK, District Judge (Retired).

text:
    Rebel Scott KUEBEL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0255
    Supreme Court of Wyoming.
    July 18, 2019
    Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Jonathan W. Foreman, Senior Assistant Public Defender; and Denny L. Harts, Assistant Public Defender. Argument by Mr. Foreman.
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; and Katherine A. Adams , Senior Assistant Attorney General. Argument by Ms. Adams.
    Before DAVIS, C.J., FOX, KAUTZ, and BOOMGAARDEN, JJ., and PARK, D.J. (Ret.)

      Order Allowing Withdrawal of Counsel entered April 9, 2019.

   PARK, District Judge (Retired).

[¶1] A jury convicted Rebel Scott Kuebel of misdemeanor theft and felony property destruction. Mr. Kuebel appeals, asserting that the prosecutor committed misconduct; he was entitled to a judgment of acquittal for destruction of property because he only disassembled and did not destroy the property; he was entitled to a judgment of acquittal on a charge of theft because the victims had no ownership interest in the property; and that the district court abused its discretion in awarding restitution.

[¶2] We affirm.

ISSUES

[¶3] Appellant raises four issues:

1. Did the prosecutor commit misconduct when three of the State's witnesses provided nonresponsive answers suggesting that Mr. Kuebel sold motorcycle parts when there was no evidence of such sales?
2. Was Mr. Kuebel entitled to a judgment of acquittal on the charge of property destruction of the 1988 Harley Davidson when it was only disassembled?
3. Was Mr. Kuebel entitled to a judgment of acquittal on the charge of theft of a 1972 Norton motorcycle because the victims did not reserve an ownership interest in this motorcycle when they sold their business to Mr. Kuebel?
4. Did the district court abuse its discretion in awarding $2,500.00 in restitution after the jury convicted him of misdemeanor theft?

FACTS

[¶4] Thomas and Lucinda Collins owned a business in Wheatland, Wyoming, known as West Wind Cycles. The primary purpose of this business was motorcycle repairs and parts. In 2013, Mr. Collins was seriously injured and the Collinses decided Mr. Collins could no longer operate the business, so they resolved to sell it.

[¶5] The Collinses had known Mr. Kuebel since he was a child. Mr. Kuebel had moved back to Wheatland from Utah and had heard about Mr. Collins' accident. He was trying to help Mr. Collins through the week of the motorcycle rally in Sturgis, South Dakota. The Collinses retained a local attorney and they sold their business to Mr. Kuebel and Ms. Stephanie Menzies on a contract for deed. Mr. Kuebel fell behind on his payments and the parties entered into a second contract. The second contract included missed payments and interest and substituted Ms. Rebecca Schwartz for Ms. Menzies. Eventually, Mr. Kuebel failed to make payments under the second contract and the Collinses took back the property.

[¶6] When the Collinses sold the business, they retained several motorcycles: two Harley Davidsons, a 1979 Sportster and a 1988 FLHT; and three Nortons, a 1971, a 1972 and a 1973, although the 1973 was just a collection of parts. Mrs. Collins testified that both of the Harley Davidsons and two of the Nortons were operational. The motorcycles were all left in a locked shed located on the property that had been sold. The Collinses had titles for all of the motorcycles, except for the one being used for parts. They kept the titles in a safety deposit box.

[¶7] Mr. Collins testified that when he and his wife regained possession of the property, the 1988 Harley Davidson was missing the front engine cylinder, the connecting rods and pushrods, the rims and tires, the saddlebags, the front end, and the seat. The 1979 was missing a headlight, gas tank, seat, and carburetor. Later, part of the front end, the gas tank, and one muffler were returned to Mr. and Mrs. Collins. Neither of the operational Norton motorcycles were on the premises, and both Mr. Kuebel and his business partner testified they had been sold as junk.

[¶8] Mr. Kuebel was originally charged with four counts: two counts of felony theft in violation of Wyo. Stat. Ann. § 6-3-402(a) (LexisNexis 2017); and two counts of felony property destruction in violation of Wyo. Stat. Ann. § 6-3-201(a) (LexisNexis 2017). The first two counts are identical and do not reference any particular item or piece of property; likewise, the second two counts are also identical, and again, do not reference any piece of property. It would be impossible to determine from the Information what was alleged to have been stolen in the first two counts and what was alleged to have been damaged in the second two counts. At the end of the State's case, the Court, with the agreement of both parties, informed the jury that issues relating to the alleged theft of the 1971 Norton motorcycle had been resolved. Instruction No. 15 instructed the jury that Mr. Kuebel had been charged with three crimes: theft of a 1972 Norton motorcycle; property destruction and defacement of a 1979 Harley Davidson motorcycle; and property destruction and defacement of a 1988 Harley Davidson motorcycle.

[¶9] The jury found Mr. Kuebel guilty of misdemeanor theft of the 1972 Norton motorcycle, and guilty of felony property destruction and defacement relating to the 1988 Harley Davidson motorcycle. Mr. Kuebel was found not guilty of property destruction relating to the 1979 Harley Davidson motorcycle.

[¶10] Mr. Kuebel was sentenced to a term of four to six years for the felony property destruction. This sentence was suspended on the condition Mr. Kuebel complete five years of supervised probation. On the misdemeanor theft, Mr. Kuebel was sentenced to serve 180 days. This sentence was suspended on the condition Mr. Kuebel complete six months of probation, served concurrently with the felony probation. Mr. Kuebel was also ordered to pay restitution of $9,600 for the damage to the 1988 Harley Davidson and $2,500 for the theft of the 1972 Norton motorcycle. Additional facts will be presented as necessary to discuss the issues. Mr. Kuebel filed a timely appeal.

DISCUSSION

A. Did the prosecutor commit misconduct?

[¶11] Mr. Kuebel asserts the prosecutor committed misconduct by failing to properly control the State's witnesses, which caused six non-responsive answers he claims resulted in his not being able to obtain a fair trial.

[¶12] The first exchange complained of occurred when the prosecutor was questioning Mrs. Collins:

Q. Early on you wanted to indicate about some things. Did you ever receive any property back on the 1988 motorcycle?
A. Yes.
Q. Okay. What property did you receive back?
A. We found the front end. Gentleman brought the front end back.
Q. Okay. Was it Mr. Kuebel that brought it back?
A. Oh, no. Oh, no.
(Defense counsel): I'm going to object to the tone of that answer, Your Honor. It's implying something towards my client.
THE COURT: Okay. Sustained. Ma'am, please avoid -- Just answer the questions, please.
THE WITNESS: Okay.

The second exchange took place later as defense counsel was cross examining Mrs. Collins:

Q. Okay. All right. But the engine and the front end are back?
A. The front end was returned because he sold it to somebody.
(DEFENSE COUNSEL). Okay. I'm going to object to that, Your Honor. I don't know the basis for --
THE COURT. Well, yeah. Ladies and gentlemen, disregard her last statement. So that will be stricken.
WITNESS: Sorry.
THE COURT: Go ahead and ask a question Mr. [Defense Counsel].
And please, ma'am, just answer the questions.

The third nonresponsive answer came as the prosecutor was questioning Mr. Collins. Mr. Collins testified he found the 1988 Harley Davidson motorcycle on a lift and stripped down. Then the following question and answer session took place:

Q. Were the parts there?
A. The parts were sold.
(Defense counsel). I'm going to object as to foundation. I don't know how he would have knowledge of this.
THE COURT: Well, sustained. It does lack foundation.
(DEFENSE COUNSEL). I would ask the Court to strike and instruct the jurors to disregard.
THE COURT. Yes. Ladies and gentlemen of the jury, that previously answer (sic) will be stricken and please disregard that.

The next answer of which Mr. Kuebel complains occurred when defense counsel was cross-examining Mr. Collins. Mr. Collins was asked what certain replacement parts would cost and he responded as follows:

A. It would depend. If I can get back into the swing of my business, I have accessibility to parts at a reasonable price.
Q. Okay.
A. But when I have to go chase down parts to fit that bike because somebody sold them for what I --
(DEFENSE COUNSEL). Okay, I'm going to object at this point, Your Honor. I have not in any way opened the door for this sort of slander.
THE COURT: Okay. Well, Mr. Collins, try to answer the question. That will be stricken and the jury will disregard that part.

Another objection arose later in the same cross-examination. Defense counsel was discussing with Mr. Collins whether Mr. Kuebel or Mr. Collins owned a shed which was on the property after the sale of the business and whether Mr. Kuebel had a key to that shed. Mr. Collins denied Mr. Kuebel had a key and, not in response to any question, said:

A. He tore the lock--
THE COURT: Sir, sir, I need you to wait until there's a question. Okay?
DEFENSE COUNSEL: I'm going to ask that that be stricken as well.
A. Sorry.
THE COURT: It will be stricken. Jury will disregard that.

The next exchange of which Mr. Kuebel complains took place as the prosecutor was questioning the Chief of Police:

Q. Let's back up. We're talking about -- Did she report some motorcycles --
A. That was not the first thing she reported stolen.
(DEFENSE COUNSEL): I'm going to object at this point.
Your Honor. I think this is outside the scope of the case.
Q. Did you eventually get to the motorcycles?
A. After I got to West Winds Cycles, I was there for about five minutes talking to Cindy and Tommy Collins, and that's when she -- She reported vandalism first.
(DEFENSE COUNSEL): I'm going to object to that, Your Honor. I think it's hearsay and, in addition, it's again 404(b).
(PROSECUTOR): Just stick with the --
THE COURT: Stop. Stop. Okay. Yeah. The objection is sustained, so the jury will disregard that last answer.

Mr. Kuebel is critical of testimony given by the Chief of Police who was re-called as a rebuttal witness. Over objection, the Chief of Police testified that an outside party told him the front fork for the motorcycle, which had been returned to the Collinses, had been purchased by a third party. On cross-examination, the following exchange took place:

Q. Your claim is based upon what you're saying is that Mr. Moore -- Well, your claim is not based upon Mr. Evans' personal knowledge; you're saying that Mr. Evans tried to relay on to you something that he claims someone else told him?
A. I'm sorry. You lost me in the ...
Q. Did Mr. Evans ever claim to you that he had personal knowledge of a sale? In other words, that he was present during the sale?
A. He told me that somebody had paid 1500 for them.
(DEFENSE COUNSEL): I'm going to -- I'm going to object. This is all entirely hearsay, and I would ask the entirety of this gentleman's testimony be stricken. They're trying to backdoor hearsay in, and I think it's prosecutorial misconduct.
THE COURT: Well, okay. That's overruled. But counsel approach the bench.

After an off-the-record discussion, the Court ruled:

THE COURT: Ladies and gentlemen of the jury, there's been testimony about what somebody else told Mr. Evans. So I'm instructing you that that evidence is not to be considered by you of what somebody else told Mr. Evans. I'll instruct you not to consider that.

[¶13] After the State concluded with its rebuttal witness, defense counsel moved for a mistrial. He argued the prosecutor had elicited hearsay, and this had prejudiced the jury. The State explained it had called the Chief of Police to testify as to inconsistent statements made by Mr. Evans as to whether he had told the Chief that the motorcycle parts had been sold or not. The State argued it had called a rebuttal witness because of alleged inconsistent statements made by Mr. Evans. The Court denied the motion for a mistrial, indicating that the State had the right to rebuttal, and noting the jury had been instructed to disregard the testimony.

[¶14] When we are asked to review a trial objection complaining of prosecutorial misconduct, we must first determine whether there was misconduct resulting in an error; if so, then we apply a harmless error standard of review. King v. State, 2018 WY 52, ¶ 11, 417 P.3d 657, 660 (Wyo. 2018). In determining whether any error was harmless, we concentrate on whether the error has affected the defendant's substantial right to a fair trial. Black v. State, 2017 WY 135 ¶ 13, 405 P.3d 1045, 1050. An error impacts on a defendant's right to a fair trial if we find that, based on the entire record, "a reasonable possibility exists" if, but for the error, the defendant might have received a more favorable verdict. Id.

[¶15] Mr. Kuebel asserts the prosecutor had a responsibility to control the State's witnesses. His argument is that once a witness had provided an improper answer, it was foreseeable other witnesses would also volunteer inappropriate answers; therefore, he says, "it would have been incumbent upon the prosecutor" to caution his witnesses not to express improper opinions, and that the cumulative effect of the several nonresponsive answers prejudiced the jury to the point he could not get a fair trial. The State responds that the contested answers were not solicited by the State, nor could they have been anticipated.

[¶16] A prosecutor's responsibility to control the State's witnesses has been addressed by this court. In Nelson v. State, 2010 WY 159, ¶ 35, 245 P.3d 282, 291 (Wyo. 2010), we noted that a prosecutor was not excused from the requirements of Rule 404(b) even though the State suggested the prosecutor did not intend to introduce the improper testimony. We noted that the "witness who gave the testimony ... was an experienced deputy sheriff and trained drug investigator working with the prosecutor to convict Ms. Nelson. It is difficult to believe the prosecutor had not discussed his testimony with him before trial. If the intent was not to have him testify about other drug sales, the prosecutor should have directed him not to do so." Id. We, however, distinguished Schreibvogel v. State, 2010 WY 45, 228 P.3d 874 (Wyo. 2010), and Reay v. State, 2008 WY 13, 176 P.3d 647 (Wyo. 2008).

[¶17] In Schreibvogel , we said that while there was testimony that related to Mr. Schreibvogel's drug use that potentially violated Rule 404(b), it did not appear from the record that, prior to trial, the State had intended to utilize the evidence of Mr. Schreibvogel's drug use. The witness was not asked to testify about Mr. Schreibvogel's drug use; he was only asked to testify about what he had been told by Mr. Schreibvogel. We held that if the prosecution did not intend to introduce such evidence, it was not required to provide the defense with notice. Schreibvogel , ¶ 35, 228 P.3d at 886.

[¶18] Reay also implicated improper 404(b) testimony. Rejecting the appellant's contention, we noted that "[T]he prosecution in Mr. Reay's case did not intend to introduce [the witness]' testimony as evidence of uncharged misconduct. The prosecution's question, -- 'Is that pretty much all that you got out of her?' -- was not an intentional attempt to solicit improper evidence. The district court concluded that the prosecution had not elicited the comment, and that the comment 'was somewhat nonresponsive.' The prosecution also assured the district court that [the witness] had been admonished not to testify about Mr. Reay's previous assaults against [the victim]. Because the prosecution did not intend to introduce such evidence, it was not required to provide the defense with notice that it would attempt to introduce the evidence." Reay , ¶ 19, 176 P.3d at 653.

[¶19] This case bears a closer resemblance to Schreibvogel and Reay than it does to Nelson , at least as far as the Collinses are concerned. There is nothing in the record to indicate Mr. and Mrs. Collins were witnesses who were used to being in court; in fact, the record suggests testifying in court was a new experience for them. The record also indicates the prosecution did not intend to introduce testimony to which Mr. Kuebel objected. Although the Chief of Police may be more experienced in testifying, it is clear from the record his comments were spontaneous and could not have been anticipated by the prosecution. Further, as noted below, the district court immediately sustained defense counsel's objections and instructed the jury to disregard his inappropriate statements.

[¶20] Martin v. State , 2007 WY 2, ¶ 27, 149 P.3d 707, 714 (Wyo. 2007) (abrogated on other grounds by Granzer v. State , 2010 WY 130, ¶ 27, 239 P.3d 640 (Wyo. 2010) ), is more closely on point. In Martin , the prosecutor asked a yes or no question, and the witness responded with an answer that arguably presented prejudicial information. This Court affirmed a denial of a mistrial noting that the answer was not responsive and there was nothing to indicate the nonresponsive answer should have been anticipated. The district court had specifically found the improper testimony was a spontaneous statement and not elicited by the State. This Court agreed the prosecutor was not responsible for the nonresponsive answer.

[¶21] Similar findings were made by the district court in the instant case. The district court found that the prosecutor had not done anything to encourage the contested answers. There is nothing in the record to dispute the district court's findings that the prosecutor was not responsible for the nonresponsive answers; therefore, there was no misconduct. The district court is in a better position to evaluate any adverse effect improper testimony might have on a jury than we are as a reviewing court. In addition, the district court took immediate steps to correct any problematic testimony by ordering the jury to disregard all of the challenged answers. The assertion that the cumulative effect of the inappropriate answers denied Mr. Kuebel the right to a fair trial ignores our well-established rule that jurors follow curative instructions. Carrier v. State , 2017 WY 88, ¶ 45, 400 P.3d 358, 368 (Wyo. 2017).

[¶22] Mr. Kuebel does not explain why the prosecutor should have foreseen or anticipated further nonresponsive answers from the witness or from other witnesses. In this case, to further complicate matters, half of the nonresponsive answers came during cross examination. Categorization of these items as prosecutorial misconduct would require the prosecutor to accurately predict both the question and an inappropriate answer. In fact, if the responses by the witnesses were predictable, it should have been equally apparent to defense counsel, who could have taken precautionary steps. We conclude the prosecutor did nothing to prompt the nonresponsive answers; he could not have foreseen them; and any problem was addressed by the district court's curative instructions. We hold there was no prosecutorial misconduct or error, and our analysis of this issue ends here.

[¶23] It is not clear whether Mr. Kuebel is arguing the rebuttal testimony of the Chief of Police was merely one of the instances of unprovoked non-responsive answers, or whether he is asserting it was error to present this rebuttal testimony. If Mr. Kuebel is arguing the latter, this argument also fails. The defense called a witness to testify that he had received one of the missing motorcycle parts from another person, and he had returned it to the Collinses. On cross-examination, this witness twice denied he had told the Chief of Police "someone" had purchased or paid $1,500 for the part. The prosecutor then called the Chief of Police who, over several objections, testified that the witness had told the Chief "somebody paid $1,500 for them." After defense counsel received the same answer on cross examination, he moved to strike the testimony as being hearsay. That motion was denied, and a bench conference transpired that is not part of the record. Without further explanation, the Court then instructed the jury it should not consider any testimony of what anybody had told the defense witness.

[¶24] The State had the right to impeach by presenting extrinsic evidence of prior inconsistent statements, provided specific procedural safeguards were followed. Wyoming Rule of Evidence 613(b). Mr. Kuebel does not explain why it was improper for the prosecutor to call a rebuttal witness, nor does he present any authority that doing so constituted misconduct. We conclude no misconduct was involved in the calling of the rebuttal witness; therefore, there was no error.

B. Was the Defendant, Mr. Kuebel, entitled to a judgment of acquittal because he only disassembled the 1988 Harley Davidson motorcycle?

[¶25] Mr. Kuebel was charged with felony property destruction pursuant to § 6-3-201. That statute provides as follows:

§ 6-3-201. Property destruction and defacement; grading; penalties; aggregated costs or values
(a) A person is guilty of property destruction and defacement if he knowingly defaces, injures or destroys property of another without the owner's consent.
(b) Property destruction and defacement is:
(i) A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the cost of restoring injured property or the value of the property if destroyed is less than one thousand dollars ($1,000.00);
(ii) Repealed by Laws 1985, ch. 44, § 2.
(iii) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the cost of restoring injured property or the value of the property if destroyed is one thousand dollars ($1,000.00) or more.
(c) If a series of injuries results from a single continuing course of conduct, a single violation of this section may be charged and penalties imposed based upon the aggregate cost or value of the property injured or destroyed.

[¶26] At the close of the State's case, Mr. Kuebel moved for a directed verdict stating, "it was obviously, at worst, a misguided attempt by Mr. Kuebel to fix the bike on behalf of Mr. Collins and give it back to him at a later date." Mr. Kuebel now argues the district court should have granted his motion. We have held that the standard of review for a denial of a motion for judgment of acquittal is the same as that used when an appeal claims insufficient evidence to convict because both challenge the sufficiency of the evidence. Foltz v. State , 2017 WY 155, ¶ 10, 407 P.3d 398, 401 (Wyo. 2017). This Court does not re-weigh the evidence or re-examine the credibility of the witnesses. Id. Instead, we determine whether the evidence could reasonably support the findings of the fact finder. Id. (quoting Hill v. State , 2016 WY 27, ¶ 13, 371 P.3d 553, 558 (Wyo. 2016) ).

[¶27] We "accept as true the State's evidence and all reasonable inferences which can be drawn from it." Hyatt v. State, 2018 WY 84, ¶ 10, 422 P.3d 524, 527-28 (Wyo. 2018). We do not consider the defendant's conflicting evidence and we "do not substitute our judgment for that of the jury." Id . Instead, we "determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt." Id . "This standard applies whether the supporting evidence is direct or circumstantial." Id.

[¶28] Mr. Kuebel's argument was that he did not destroy the motorcycle, he "merely" disassembled it. There is more than enough evidence to support the jury's rejection of this argument. Mr. Collins testified the motorcycle was "in mint condition" when he left it in the locked shed. When the Collinses left the motorcycle in the shed, it was intact and not missing any parts. When it was later found, it was missing about one half of its parts. There was evidence it would cost between $10,000-$15,000 to repair the motorcycle.

[¶29] Mr. Kuebel does not dispute dismantling the motorcycle; the issue is whether disassembling constitutes defacing, injuring, or the destruction of property of another. His argument is apparently that since the motorcycle can be reassembled, it was not "destroyed." We have previously held that the statutory language is disjunctive, permitting a conviction for defacing, injuring, or destroying property. As applied to a tangible object, "injure" means to materially impair or destroy any part of the existing structure. Christian v. State , 883 P.2d 376, 380 (Wyo. 1994) (citing Black's Law Dictionary 785 (6th ed. 1990.)) Mr. Kuebel's argument ignores the fact that the Collinses' motorcycle was intact when they left it, and it was disassembled and lacking essential parts when it was located. The motorcycle was not functioning and was, in effect, destroyed until and unless someone with the necessary expertise took the time to reassemble it and perform whatever additional tasks were necessary to restore it to running order. Mr. Kuebel provides no authority to support his argument that an item of personal property is not destroyed or injured provided it can be repaired. We hold there was sufficient evidence to support the jury's finding that the motorcycle was injured or destroyed.

C. Was Mr. Kuebel entitled to a judgment of acquittal because the Collinses reserved no ownership rights to the Norton 1972 motorcycle in the contract with Mr. Kuebel?

[¶30] At the same time the Collinses left the two Harley Davidson motorcycles on the property, they also left two Norton motorcycles. A Norton motorcycle is a "classic" British motorcycle which is no longer manufactured. Mr. Kuebel and his business partner both testified the Norton motorcycles were sold as scrap, although their testimony differed slightly. Mr. Kuebel testified the Norton motorcycles were sold as part of a larger scrap pile, and his business partner testified the two Nortons were sold by themselves. There is no dispute about the motorcycles being sold, the only question is whether the Collinses owned the Norton motorcycles, or whether the motorcycles were sold as part of the sale of the business. The jury found Mr. Kuebel guilty of misdemeanor theft of the 1972 Norton motorcycle.

[¶31] Again, we review the record to determine whether there is sufficient evidence to support the jury's finding. Hyatt v. State, 2018 WY 84, ¶ 10, 422 P.3d 524, 527-28 (Wyo. 2018). Mr. Kuebel asserts that when he purchased the business from the Collinses, the sales contract transferred certain personal property "including parts, inventory, supplies, furniture, etc."; Mr. Kuebel now contends this language included the Norton motorcycles, including the 1972 Norton motorcycle.

[¶32] There is substantial evidence to support the jury's rejection of this position and its determination that the Collinses retained ownership of the two Norton motorcycles. The testimony was that the Collinses retained certificates of title to them. These titles were received into evidence and presented to the jury. Mrs. Collins testified both Norton motorcycles were operational, except one needed a battery. She also testified that four motorcycles, including the Nortons, were left in the locked shed with the knowledge and consent of Mr. Kuebel, and the Collinses checked on the contents of the shed in 2015 and 2016. The attorney who prepared the sales contract indicated that if ownership of the motorcycles had been transferred, then the contract would have included their Vehicle Identification Numbers (VINs). Mr. Kuebel agreed the Collinses retained ownership of the two Harley Davidson motorcycles, and they were treated exactly as the Norton motorcycles were under the contract. Finally, the contract language refers to "parts, inventory, supplies," the motorcycles were not "parts" or "supplies," and therefore, they could only be considered as inventory. Mr. Kuebel conceded Mr. Collins did not sell motorcycles, so there would have been no inventory.

[¶33] Based on this evidence, the jury necessarily found that Mr. and Mrs. Collins retained ownership of the Norton motorcycles, and we will not disturb that finding.

D. Did the district court abuse its discretion by ordering restitution in an amount greater than one thousand dollars for the misdemeanor theft conviction?

[¶34] Following Mr. Kuebel's conviction by the jury, the district court held a restitution hearing. The State presented the testimony of Joey Taylor, who testified without objection, that the 1972 Norton motorcycle had a value of $2,500 to $3,500. Mr. Taylor indicated that this motorcycle was no longer manufactured and was a rare motorcycle. Mr. Kuebel also testified, and his opinion was, that the Norton motorcycle was not in working condition. Mr. Kuebel did not offer an opinion or present other evidence as to the value of the 1972 Norton motorcycle. The district court found Mr. Taylor's testimony was credible and ordered restitution in the amount of $2,500.

[¶35] Mr. Kuebel argues both that the district court abused its discretion in ordering restitution in an amount greater than one thousand dollars, which is the threshold for distinguishing between misdemeanor theft (value of property less than one thousand dollars) and felony theft (value of property one thousand dollars or more). He also claims that the evidence supporting the restitution was insufficient.

[¶36] A district court has no inherent power to award compensation to crime victims; it can only order that restitution authorized by statute. Hampton v. State, 2006 WY 103, ¶ 8, 141 P.3d 101, 104 (Wyo. 2006) (citations omitted). Wyo. Stat. Ann. § 7-9-102 (LexisNexis 2005 & Supp. 2006) states:

In addition to any other punishment prescribed by law the court shall, upon conviction for any misdemeanor or felony, order a defendant to pay restitution to each victim as determined under W.S. 7-9-103 and 7-9-114 unless the court specifically finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay.

Wyo. Stat. Ann. § 7-9-103 (LexisNexis 2005 & Supp. 2006) further provides, in pertinent part:

(a) As part of the sentencing process ... in any misdemeanor or felony case, the prosecuting attorney shall present to the court any claim for restitution submitted by any victim.
(b) In every case in which a claim for restitution is submitted, the court shall fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant's criminal activity....

[¶37] Victims may only receive pecuniary damages that are the "result of a defendant's criminal activities." Wyo. Stat. Ann. § 7-9-101(a)(v) (LexisNexis 2017). When it seeks restitution, the State has the burden of presenting credible evidence and proving the claim by a preponderance of the evidence. Renfro v. State , 785 P.2d 491, 493 (Wyo. 1990).

[¶38] There are different standards of review for factual challenges to the amount of restitution ordered and for challenges to the authority of the court to make a restitution award. O'Halloran v. State , 2014 WY 95, ¶ 11, 331 P.3d 121, 124 (Wyo. 2014). Mr. Kuebel's challenge to the district court's authority to order restitution in an amount greater than the misdemeanor threshold is reviewed under a de novo statutory interpretation standard, because a court has only that authority to act which is conferred by the subject statute. Id. On the other hand, the challenge to the lack of sufficient evidence for the restitution is reviewed to determine whether there was a "clear abuse of discretion." Id. "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily and capriciously." Id. Under this standard, the inquiry is whether the court's choice is reasonable. Id.

[¶39] The primary issue is whether the district court was limited to an award of restitution of less than one thousand dollars for the 1972 Norton motorcycle, since Mr. Kuebel was convicted only of misdemeanor theft of this motorcycle.

[¶40] A district court's authority to order restitution is governed by statute. Crapo v. State , 2007 WY 194, ¶ 11, 172 P.3d 393, 397 (Wyo. 2007). Section 7-9-102 requires that a court, "upon conviction for any misdemeanor or felony, order a defendant to pay restitution to each victim as determined under W.S. 7-9-103 and 7-9-114." Section 7-9-103(b) specifies that "the court shall fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant's criminal activity."

[¶41] Mr. Kuebel presents no authority to support his contention that the district court was restricted in awarding restitution to an amount under the misdemeanor amount. His argument is solely that the jury in the criminal trial found the State had not proven the Norton motorcycle had a value of over one thousand dollars. However, this ignores the fact that each element of the criminal charge must be proved beyond a reasonable doubt. Edwards v. State , 577 P.2d 1380, 1382 (Wyo. 1978) ("As with all criminal charges, each element must be proved beyond a reasonable doubt."); whereas restitution may be established by a lower standard, or by a preponderance of the evidence. Hampton, ¶ 11, 141 P.3d at 105 ("We have said that, when seeking restitution, the State bears the burden of presenting credible evidence and proving the claim by a preponderance of the evidence."). Id.

[¶42] Other courts have ruled that restitution may properly be ordered in an amount greater than that proved for conviction. In People v. Pagan, 165 P.3d 724, 729 (Colo. App. 2006), the appellate court had to determine whether collateral estoppel or double jeopardy precluded a restitution award greater than the amount required for conviction. The Colorado court determined that collateral estoppel did not apply because of the different burdens of proof. Id . at 730.

[¶43] The Pagan court also applied Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), to resolve the question of whether ordering higher restitution was double jeopardy, an issue not specifically raised by Mr. Kuebel. Dowling held that the introduction of evidence relating to a crime that the defendant had previously been acquitted of committing did not violate the Double Jeopardy or Due Process Clauses of the Constitution when that evidence was used in a separate trial as evidence of bad acts under Fed. R. Evid. 404(b). The Dowling Court focused on the different burdens of proof involved--"beyond a reasonable doubt" as opposed to "preponderance of the evidence." Id .

[¶44] Other jurisdictions have agreed that restitution may exceed the amount proved for conviction. J.O.S. v. State , 668 So.2d 1082, 1085 (Fla. Dist. Ct. App. 1996), approved, 689 So. 2d 1061 (Fla. 1997) ("Assuming the principal purpose of restitution to be to restore to victims of crime the value of that which they have lost as a result of the crime, rather than to punish the wrongdoer, we can perceive no good reason why the amount should be limited arbitrarily by the maximum dollar value of the offense which a defendant is found to have committed."); People v. Gallagher , 55 Mich.App. 613, 223 N.W.2d 92, 96 (1974) ("The trial judge's requirement that defendant pay the value of the stolen car from which the cowl was found in his collision shop is not in violation of the probation statute nor is it a violation of any constitutional right of the defendant."); State v. Foltz , 14 Or.App. 582, 513 P.2d 1208, 1210 (1973) ("[F]act that defendant's conviction is for an attempt to commit theft would not preclude the court from conditioning probation upon restitution of the amount actually taken, even though a larger amount."); State v. Rogers , 30 Wash.App. 653, 638 P.2d 89, 92 (1981) ("[A] defendant could be ordered to pay restitution which exceeds the maximum value of property prescribed for conviction of the underlying offense.")

[¶45] We agree with these jurisdictions and hold that restitution is not limited to the amount that must be proved for conviction so long as the amount ordered is consistent with the applicable Wyoming statutes.

[¶46] Mr. Kuebel also asserts there was insufficient evidence to support the district judge's decision as to the amount of restitution.

[¶47] A district judge's factual findings are not entitled to the limited review afforded a jury verdict. BNSF Railway Co. v. Box Creek Mineral Limited Partnership , 2018 WY 67, ¶ 15, 420 P.3d 161, 165-66 (Wyo. 2018). Rather, these findings are presumptively correct. Because we give due regard for the district court's opportunity to assess the credibility of the witnesses, our review does not entail re-weighing disputed evidence; however, the appellate court may examine all of the properly admissible evidence in the record. Id .

[¶48] A judge's findings of fact will not be set aside unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id .

[¶49] During the hearing on restitution, the State called a witness who testified that he had nearly life-long experience working with motorcycles, jet skis and cars. This witness was familiar with the Norton motorcycles owned by the Collinses. He testified, without objection, that the 1972 Norton motorcycle had a value between $2,500 and $3,500. Mr. Kuebel testified that the motorcycle was in poor condition, but he presented no contrary evidence as to its value.

[¶50] We defer to the district judge's findings of fact unless, considering the entire record, we find them clearly erroneous. We conclude the district judge's decision was supported by evidence, and not clearly erroneous. We affirm the court's decision on restitution.

CONCLUSION

[¶51] Mr. Kuebel's convictions and sentences are affirmed.