Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         July 6, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 47277-5-II

                               Respondent,

        v.

 CHASE BRENDON McCRACKEN,                                    UNPUBLISHED OPINION

                               Appellant.


       LEE, J. — Chase Brendon McCracken was convicted, after a bench trial on stipulated facts,

of malicious mischief and residential burglary, both with sexual motivation.          On appeal,

McCracken argues that (1) there was insufficient evidence to support (a) the element of malice in

his malicious mischief conviction and (b) that he acted with sexual motivation when he committed

residential burglary; (2) the State erred in believing it could not withdraw the sexual motivation

allegations; and (3) the legal financial obligations (LFOs) imposed at his sentencing should be

stricken because he lacks the ability to pay. We affirm.

                                             FACTS

       In early November 2013, McCracken entered a woman’s house, without her knowledge or

permission, through the “doggie door.” Clerk’s Papers (CP) at 23. McCracken entered the house
No. 47277-5-II


because he was cold and hungry. McCracken had heard that the woman was frequently out of

town and chose to enter her house hoping she would not be there.

       Inside, McCracken ate some candy, drank some juice, used the bathroom, undressed, and

got into the bed in the master bedroom. While he was in bed, he masturbated. McCracken left

before the woman returned home.

       When the woman returned home, she discovered stains on her bedding, she contacted the

authorities, who took a sample from stain on the bedding. Testing by the Washington State Patrol

Crime lab showed that the stains were semen with a DNA (deoxyribonucleic acid) profile that

matched McCracken.

       McCracken was charged with one count of residential burglary and one count of third

degree malicious mischief. He attempted to plead guilty at his first appearance, but he was not

allowed to do so. Before his arraignment, the State filed an amended information that added a

special allegation of sexual motivation to both charges.

       McCracken moved to dismiss the sexual motivation allegations. The State opposed the

motion, arguing that the State was not allowed to dismiss the sexual motivation allegations without

the superior court making specific findings. The State also argued that while there may have been

other reasons for McCracken’s entry and remainder in the home, one of his purposes for remaining

in the home was to “gratify himself sexually” through masturbation. Transcript (Tr.) (Feb. 27,

2104) at 9. The superior court denied McCracken’s motion to dismiss the sexual motivation

allegations.

       The case proceeded to a bench trial on stipulated facts. The stipulated facts included a

written statement by McCracken to the court and the police reports setting out the above facts.



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No. 47277-5-II


Also included was a report of a psychologist and certified sex offender treatment provider who

determined that McCracken’s behavior was not consistent with a crime that was sexually

motivated and McCracken did not meet the description of someone who should register as a sex

offender.

       The trial court found McCracken guilty of both counts with sexual motivation for each.

With respect to the malicious mischief with sexual motivation conviction, the trial court found

McCracken “masturbated with the affect [sic] of ejaculation and that was a willful disregard of the

rights of another, privacy rights among other things. Definitely would be vexing and annoying

and injurious. He knowingly and willfully did it and it was wrongfully done without lawful

excuse.” Tr. (Aug. 27, 2014) at 29. The trial court further found, with respect to the residential

burglary with sexual motivation conviction, that McCracken “was damaging sheets while

committing the residential burglary,” and he was sexually motivated when he damaged the sheets.

Tr. (Aug. 27, 2014) at 31.

       McCracken was sentenced to an exceptional sentence below the standard range. The

sentencing court also imposed the following LFOs on McCracken: $500 Victim Assessment fee,

a $200 Criminal Filing Fee, and a $100 DNA Collection Fee.

       McCracken appeals.

                                           ANALYSIS

A.     SUFFICIENCY OF THE EVIDENCE

       McCracken argues that there was insufficient evidence to support the element of malice in

his conviction for malicious mischief. He also argues that there was insufficient evidence that he

acted with sexual motivation when he committed the residential burglary. We hold that there is



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No. 47277-5-II


sufficient evidence to support the malice element in McCracken’s conviction for malicious

mischief, and that there is sufficient evidence to support a finding of sexual motivation on

McCracken’s residential burglary conviction.

       a.      Legal Principles

       To determine whether sufficient evidence supports an adjudication, we view the evidence,

along with all reasonable inferences that may be drawn from the evidence, in the light most

favorable to the State and determine whether any rational fact finder could have found the crime’s

elements beyond a reasonable doubt. State v. Drum, 168 Wash. 2d 23, 34-35, 225 P.3d 237 (2010).

Following a bench trial, our review is limited to determining whether substantial evidence supports

the challenged findings and, if so, whether the findings support the conclusions of law. State v.

Stevenson, 128 Wash. App. 179, 193, 114 P.3d 699 (2005). Unchallenged findings of fact are verities

on appeal, and a trial court’s conclusions of law are reviewed de novo. Id.; State v. Gatewood,

163 Wash. 2d 534, 539, 182 P.3d 426 (2008).

       b.      Malice—Malicious Mischief

       RCW 9A.48.090 codifies Washington’s proscription of third degree malicious mischief.

In pertinent part, the statute states, “A person is guilty of malicious mischief in the third degree if

he or she . . . [k]nowingly and maliciously causes physical damage to the property of another,

under circumstances not amounting to malicious mischief in the first or second degree.” RCW

9A.48.090(1)(a). “Malice” and “maliciously” are defined as “an evil intent, wish, or design to

vex, annoy, or injure another person.” RCW 9A.04.110(12). The definition also includes a

permissive inference that says, “Malice may be inferred from an act done in willful disregard of




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No. 47277-5-II


the rights of another, or an act wrongfully done without just cause or excuse.”                 RCW

9A.04.110(12).

       McCracken argues the trial court erred by relying on the permissive inference as a

mandatory presumption. But, the record shows that sufficient evidence supports the trial court’s

finding that McCracken’s actions met the definition for malice without relying on any inference.

       The trial court found that McCracken’s staining the woman’s sheets was “vexing and

annoying and injurious.” Tr. (Aug. 27, 2014) at 29. The definition of malice includes actions

done with “evil intent, wish, or design to vex, annoy, or injure another person.”               RCW

9A.04.110(12). We hold that, when viewed in the light most favorable to the State along with the

reasonable inferences that follow, the evidence that McCracken entered the woman’s home

without permission, ate her food, drank her juice, used her bathroom, and then masturbated and

ejaculated on her bed is sufficient to support the trial court’s finding that these actions were done

with an evil intent, wish, or design to vex, annoy or injure. Surely, even if there was no evil intent,

the act of entering someone’s home without permission, eating and drinking her property, using

her bathroom, and then soiling her bedding could be reasonably construed as a design to vex, annoy

or injure. Therefore, the record supports the trial court’s finding that the element of malice had

been proven.

       However, even if the trial court improperly relied on an inference and treated the

permissive inference as a mandatory presumption, we hold that an inference of malice was

appropriate. “A permissive inference suggests to the jury a possible conclusion to be drawn if the

State proves predicate facts, but does not require the jury to draw that conclusion.” State v. Ratliff,

46 Wash. App. 325, 330, 730 P.2d 716 (1986), review denied, 108 Wash. 2d 1002 (1987). “A



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No. 47277-5-II


permissive inference is valid when there is a ‘rational connection’ between the proven fact and the

inferred fact, and the inferred fact flows ‘more likely than not’ from the proven fact.” Id. at 330-

31 (quoting County Court of Ulster County v. Allen, 442 U.S. 140, 165, 99 S. Ct. 2213, 60 L. Ed.
2d 777 (1979).

       In Ratliff, Division One considered “whether the trial court erred in instructing the jury that

it could infer malice ‘from an act done in willful disregard of the rights of another.’” 46 Wash. App.

at 329-30 (quoting jury instructions). There, police officers left Ratliff in the back of a police van

for approximately 15 minutes unattended and when they returned, they found Ratliff had broken

the window between the holding area and the cab of the van. Id. at 326. They saw that the radio

was damaged and an officer’s jacket was pulled through the window. Id. at 326. Ratliff was

convicted of second degree malicious mischief. Id. at 327.

       The court explained that the jury instruction was proper because there was a “rational

connection” between the proven facts of that case and an inference of malice:

       Ratliff admitted on cross examination that he continued to pull radio wires loose
       after he did not succeed in bringing the radio towards him. He stated that he
       continued to pull at the wires because he “was frustrated.” Furthermore, the officers
       testified that one of their jackets had been pulled through the window into the
       prisoner holding area, a situation more consistent with malicious intent than with
       Ratliff’s claims that he wanted to use the radio to call help.

Id. at 330-31. In conclusion, the court held that “the inference of malice flows more likely than

not from the conduct of the defendant.” Id. at 331.

       Here, the same conclusion is appropriate. The evidence shows that McCracken entered the

house without permission when the woman was not there because he was cold and hungry.

McCracken then proceeded to eat candy and drink juice belonging to the woman without her




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No. 47277-5-II


permission. Finally, after using her bathroom, he crawled into the woman’s bed, and then

masturbated and ejaculated on the woman’s bedding. Based on this evidence, an inference of

malice flows more likely than not from McCracken’s actions.

         Sufficient evidence supports the trial court’s finding of malice. McCracken’s challenge

fails.

         c.     Sexual Motivation—Residential Burglary

         McCracken next argues there was insufficient evidence to prove he committed the

residential burglary with sexual motivation because the State could not prove beyond a reasonable

doubt that he committed the crime of residential burglary for the purpose of sexual gratification.

We disagree.

         “A person is guilty of residential burglary if, with intent to commit a crime against a person

or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.”

RCW 9A.52.025(1). “‘Sexual motivation’ means that one of the purposes for which the defendant

committed the crime was for the purpose of his or her sexual gratification.” RCW 9.94A.030(47).

“[T]he State must prove beyond a reasonable doubt that the defendant committed the crime for the

purposes of sexual gratification,” and “[i]t must do so with evidence of identifiable conduct by the

defendant while committing the offense.” State v. Vars, 157 Wash. App. 482, 494, 237 P.3d 378

(2010).1




1
  In analyzing the former juvenile counterpart to RCW 9.94A.030(47), our Supreme Court agreed
that “‘the statute makes sexual motivation manifested by the defendant’s conduct in the course of
committing a felony an aggravating factor in sentencing.’” State v. Halstien, 122 Wash. 2d 109, 120,
857 P.2d 270 (1993) (quoting State v. Halstien, 65 Wash. App. 845, 853, 829 P.2d 1145 (1992)).


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No. 47277-5-II


       As McCracken acknowledges, “There is . . . sufficient evidence of burglary because the

stipulated facts show that [he] entered and remained unlawfully with intent to commit theft of food

and drink.” Br. of Appellant at 13. But there is also evidence that McCracken remained unlawfully

in the woman’s dwelling to masturbate in her bed. And the stipulated fact that McCracken

masturbated and ejaculated in the woman’s bed while remaining unlawfully in her house is

“evidence of identifiable conduct . . . while committing the offense.” Vars, 157 Wash. App. at 494.

The trial court found sexual motivation based on McCracken “damaging sheets while committing

the residential burglary” and being sexually motivated when he damaged the sheets. Tr. (Aug. 27,

2014) at 31. Thus, the stipulated facts support the trial court’s finding that one purpose McCracken

remained unlawfully in the house was for his sexual gratification. Therefore, there is substantial

evidence to allow a rational fact finder to find that McCracken committed residential burglary with

sexual motivation beyond a reasonable doubt. See Drum, 168 Wash. 2d at 34-35. McCracken’s

challenge fails.

B.     STATE’S AUTHORITY TO WITHDRAW SEXUAL MOTIVATION ALLEGATIONS

       McCracken argues that because the prosecutor erroneously believed that the State could

not withdraw the sexual motivation allegations, we should remand the case for further proceedings

so that the prosecution has an opportunity to withdraw the sexual motivation allegations. We

disagree.

       The charging statute on the sexual motivation allegation is as follows:

       (1) The prosecuting attorney shall file a special allegation of sexual motivation in
       every criminal case, felony, gross misdemeanor, or misdemeanor, other than sex
       offenses as defined in RCW 9.94A.030 when sufficient admissible evidence exists,
       which, when considered with the most plausible, reasonably foreseeable defense




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No. 47277-5-II


       that could be raised under the evidence, would justify a finding of sexual motivation
       by a reasonable and objective fact finder.

       (2) In a criminal case wherein there has been a special allegation the state shall
       prove beyond a reasonable doubt that the accused committed the crime with a
       sexual motivation. The court shall make a finding of fact of whether or not a sexual
       motivation was present at the time of the commission of the crime, or if a jury trial
       is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to
       whether or not the defendant committed the crime with a sexual motivation. This
       finding shall not be applied to sex offenses as defined in RCW 9.94A.030.

       (3) The prosecuting attorney shall not withdraw the special allegation of sexual
       motivation without approval of the court through an order of dismissal of the special
       allegation. The court shall not dismiss this special allegation unless it finds that
       such an order is necessary to correct an error in the initial charging decision or
       unless there are evidentiary problems which make proving the special allegation
       doubtful.

RCW 9.94A.835.

       Our Supreme Court held in State v. Rice, 174 Wash. 2d 884, 897, 279 P.3d 849 (2012), that

the legislature, despite its use of the word “shall,” intended the charging of a sexual motivation

aggravator to be a discretionary function of the prosecutor. The Court explained that a prosecutor’s

decision to charge a special allegation, when one is available, depends on “the facts and

circumstances of each case and the prosecutor’s own policies and priorities,” and is, therefore,

necessarily a discretionary function of his office. Id. at 902.

       Here, even if the prosecutor mistakenly believed that the State had no authority to withdraw

the sexual motivation allegations, there is no evidence that the State would have otherwise

withdrawn the allegations. Instead, the record shows that the State amended the information to

add the sexual motivation allegations and then opposed the motion to dismiss the sexual motivation

allegations. The State argued that McCracken committed the residential burglary when he

unlawfully remained in the house to “gratify himself sexually” through masturbation. Tr. (Feb.



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No. 47277-5-II


27, 2104) at 9. Thus, regardless of the understanding of the State’s authority to do so, the record

fails to support the argument or inference that the prosecutor intended to withdraw the sexual

motivation allegations. Therefore, we decline McCracken’s request to remand this case to give

the prosecutor a second chance to remove the sexual motivation allegations.

C.     LEGAL FINANCIAL OBLIGATIONS

       McCracken argues that his LFOs should be stricken because he lacks the ability to pay.

We decline to review the issue because McCracken raises it for the first time on appeal, and even

if we were to grant review, only mandatory LFOs were imposed, and the sentencing court is not

required to make an ability-to-pay inquiry before imposing mandatory LFOs. See RAP 2.5(a);

State v. Blazina, 182 Wash. 2d 827, 832, 344 P.3d 680 (2015) (holding that a defendant who fails to

object to the imposition of LFOs at sentencing is not automatically entitled to review.); State v.

Duncan, No. 90188-1, 2016 WL 1696698 (Wash. April 28, 2016), at *2-3 (affirming the appellate

court’s decision to decline review of the imposition of LFOs that were not objected to at the

sentencing court); see also State v. Lundy, 176 Wash. App. 96, 102, 308 P.3d 755 (2013) (holding

that the legislature expressly directed that an ability to pay analysis not be considered when

imposing victim restitution, victim assessment fees, DNA fees, and criminal filing fees); State v.

Mathers, No. 47523-5-II, 2016 WL 2865576 (Wash. Ct. App. May 10, 2016) *4 (holding that

sentencing courts do not need to conduct an ability to pay analysis before imposing victim

assessment fees or DNA fees).

       In summary, we hold that (1) sufficient evidence supports the trial court’s finding of malice

and sexual motivation; (2) regardless of any understanding regarding the State’s authority, there is

no evidence the State intended to withdraw the sexual motivation allegations; and (3) McCracken’s



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No. 47277-5-II


argument against the imposition of LFOs is without merit. Accordingly, we affirm.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                     Lee, J.
 We concur:



                  Johanson, P.J.




                     Sutton, J.




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