### FILED 

### APR25, 2013 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

. STATE OF WASHINGTON, ) No. 30236-9-111 ) Respondent, ) ) 

### v. ) ) UNPUBLISHED OPINION ELUTERIO MORFIN-CAMACHO, ) ) Appellant. ) KORSMO, C.J. - A stolenpotatotruck burst throughthe side ofa warehouse and left the scene withoutproviding the information required ofa driver involved in an accident. We conclude the evidence supportedthe hitand run and other associated convictions. FACTS The bizarre events ofthe early hours ofMay 22,2011, allegedly hadtheirgenesis in a motel parking lot. Mr. Eluterio Morfin-Camachowas assisting his girl friend in moving from one Pascomotelto another when he encounteredtwo strangers intheNo.30236-9-II1 State v. Morfin-Camacho parking lot ofthe Motel 6 shortly after midnight. They invited him to**~~party"** with them and, after the group drove to the Airport Motel l in two vehicles, he got into their car. After driving away from the hotel, one ofthe men pointed an automatic pistol at Mr. Morfin-Camacho and ordered him toremove all ofhis clothing andjewelry. He complied with the command. The car stopped and he was ordered out. Fearing thathe would be shot, Mr. Morfin-Camacho fled to a nearby warehouse while the two men drove back toward the Airport Motel. Finding a partially opened roll-up door, he entered and discovered a potato transporttruck and a pair ofoveralls, but no telephone. While dressing in the overalls, he heard another vehicle outside. Hejumped into the truck, started it up, and drove outthroughthe door without attempting to open it. The door was destroyed and the truck sustained damages in excess of$1 ,200. Mr. Morfin-Camacho drove the truck away from the scene and stopped at the Airport Motel. The manager refused to allow him to use the telephone and ordered him to remove the truck from the parking lot. Mr. Morfin-Camacho moved it to a nearby gas station and returned to the motel. Heborrowed a phone from a stranger andused it to call another friend rather than the police. He later admitted that he knew he was only about a mile away from thepolice station, but he made no effortto contactthem.

I The Airport Motel was the destination to whichhis girl friend was moving. 2No. 30236-9-III State v. Morfin-Camacho The motel manager anonymously called the police. They responded and found Mr. Morfin-Camacho. The officers described him as excited, smelling ofintoxicants, and appearing to have mood swings. He was barefooted and dressed solely inthe overalls; he still hadthe keys to the truck. He showed officers the warehouse where he had obtained the potato truck. The prosecutor filed charges ofsecond degree burglary, second degree taking a motor vehicle, second degree malicious mischief, and failure to remain at the scene ofan accident. The case eventuallyproceeded to bench trial. The case was defended on the basis ofnecessity. Thetrialjudge found that Mr. Morfin-Camacho was not a credible witness, but nonetheless he acquitted him on the burglary count. The court found him guilty on the three remaining charges. The courtimposed concurrent terms of90 days' incarceration for the three offenses. Mr. Morfin-Camacho thentimely appealed to this court. ANALYSIS This appeal challenges the adequacy ofthe charging document, the sufficiency of the evidence supportingthe three convictions, and the performance ofdefense counsel for pursuing a necessity defense instead ofa duress defense.2 We will address the issues in that order.

2 Appellant also argues that the CrR 6.1 findings are inadequate, primarily as they fail to address the mental states at issue. In light ofthe defense at trial, which admitted 

### 3No. 30236-9-111 State v. Morfin-Camacho ChargingDocument Mr. Morfin-Camacho initially argues that the misdemeanor hit-and-run charge was not adequately stated in the charging document. He did not raise this claim in the trial court. We agree that the charging document is deficient. Settledprinciples govern review ofthis claim. A charging document must state the elements ofthe alleged crime in order to give the accused an understanding ofthe crime charged. "All essential elements ofa crime, statutory or otherwise, must be included in a charging document in order to afford notice to an accused ofthe nature and

cause ofthe accusation against him." State v. Kjorsvik, 117 Wn.2d 93,97, 812 P.2d 86 (1991). When challenged for the first time after a verdict has been returned, courts will liberally construe the document to see ifthe necessary facts can be found. Ifnot, the charge will be dismissed without prejudice. Even ifthe charge is stated, a defendant who shows prejudice from "inartful"pleading also receives a dismissal ofcharges without prejudice. 

### fd. at 105-06. Mr. Morfin-Camacho did not challenge the charging documentuntil this appeal. Thus, the liberal construction standard applies here. 

### fd. RCW46.52.010(2) governs the circumstance ofan accident resulting in property damage, while RCW46.52.010(1)

the charges but claimedjustification, we do not see that the findings prejudiced the appeal, so there is no need to remand for a more thorough explanation. State v. Head, 136 Wn.2d 619,624-25,964P.2d 1187 (1998). 4No. 30236-9-111 State v. Morfin-Camacho defines an operator's duties when striking an unattended vehicle. 3 The duties set forth in RCW 46.52.010(2) are: The driver ofany vehicle involved in an accident resulting only in damage toproperty fixed or placed upon or adjacent to any public highway shall take reasonable steps to locate and notify the owner orperson in charge of suchproperty ofsuch fact and ofthe name and address ofthe operator and owner ofthe vehicle striking such property, or shall leave in a conspicuous place upon the property struck a written notice, givingthe name and address ofthe operator and ofthe owner ofthevehicle so striking the property, and such person shall further make report ofsuch accident as in the case ofother accidents upon the public highways ofthis state. The final charging document filed in this case alleged in count 1that the said Eluterio Camacho in the County ofFranklin, State ofWashington, on or about March 22, 2011, then and there, while driving a motorvehicle, with knowledge that an accident occurred, was involved in an accident resulting in property damage to an unattended vehicle or otherproperty, failed to immediately stop his vehicle atthe scene ofthe accident oras close thereto as possible, and locate or attemptto locate, and notify the operator or owner orperson in charge ofthe damaged property ofhis name and address, or failed to leave in a conspicuous place upon the damaged property a written notice containing his name and**address~** Clerk's Papers at 28. The statute requires a driver involved in an accidentthat causes damage to property adjacentto a public highway to (1) take reasonable steps to notify the property

owner or to leave a note with his identifying information, and (2) to make a report ofthe accident. The charging document, however, does not mentionthe reportingrequirement.

3 Prior to amendment by Laws of2003, ch. 53, § 241, the statute treated unattended vehicles and otherproperty the same for purposes ofthis statute. 

### 5No. 30236-9-III State v. Morfin-Camacho Even giving the charging documentthe liberal constructionrequired by the belated challenge, it is deficient on the accident reporting element. A driver's duties are two-fold after an accident-notifythe property owner (by one oftwo methods) and file an accident report. The charging document here does not state that second duty and there is noway to inferthat element from the other charging language.4 Itdid not adequately notify Mr. Morfin-Camacho ofall ofthe elements ofthe offense. Accordingly, the charge offailure to stop in count I is reversed withoutprejudice. 

### Sufficiency o/theEvidence Mr. Morfin-Camacho challenges the sufficiency ofthe evidence to support all three convictions, arguing that the State failed to prove that he had notproperly reported the accident and that his actions werejustified, thus negating the mental elements ofthe other two counts. We disagree. The sufficiency ofthe evidenceto support a verdict also is reviewed according to long-settledprinciples. Thereviewing court does not weigh the evidence or sift through competing testimony. Instead, the focus is whetherthere is sufficient evidence to support the determination that each element ofthe crime was provedbeyond a reasonable doubt. 

### Jackson v. 

### Virginia, 443 U.S. 307, 319, 99 S. Ct. 2181, 61 L. Ed. 2d 560 (1979); 

### State v.

4 We agree with appellant that there is significant extraneous language in the charging document, which appears to have combined the requirements ofRCW 46.52.020(1) and (2), but we disagree that he wasprejudicedby its inclusion. 6No. 30236-9-111 State v. Morfin-Camacho 

### Green, 94 Wn.2d 216, 221-22,616 P.2d 628 (1980). Thereviewing courtwill consider the evidence in a light most favorable to theprosecution. 

### Green, 94 Wn.2d at 221-22. 

### Failure to Stop. Appellant contends thatthe State did not establish thatthe warehouse was adjacentto a public highway orthat he failed in his reporting duties. The evidence did establish those elements ofthe crime. As notedpreviously, RCW46.52.010(2) requires the State toprove that the defendant damaged "property fixed orplaced upon or adjacent to any public highway." There was evidence in the record to support this element. Officer Anthony Aceves described the location as "on4th" andthat ifyou traveled on 4th, "you'll run right into it." Report ofProceedings (July 13,2011) at 14. Exhibit 2 is a photo showing the warehouse; the street is visible nearby.5 Viewing the evidence most favorably to the prosecution, the warehouse was "adjacent"to a "public highway." Thereporting elementwas also established. Mr. Morfin-Camacho did not leave a note at the scene, nordid he communicate with the building owner and identifY himself

as the person who drove through the warehouse. He likewise did not file an accident report. Merely talking topolice does not satisfY these two requirements ofthe statute.

5Indeed, Mr. Morfin-Camacho'sjustification for taking the truck and driving through the door (instead ofopening it) was that he heard a vehicle right outside the warehouse. That explanation itselfsuggests the building was adjacentto a public highway. 7No. 30236-9-111 State v. Morfin-Camacho Viewed in a light most favorable to the prosecution, the evidence supported the conviction. Taking a Motor Vehicle andMalicious Mischief Appellant also contends that, in light ofhis desperate situation, the record does not support thathe acted culpably. His view ofthe incident ignores the standards that govern this court's review. A person commits second degree taking a motorvehicle when, without permission, he "intentionally

... drives away any ... motor vehicle" belonging to anotherperson. RCW 9A.56.075(1). Second degree malicious mischiefis committed when a person "knowingly and maliciously [c]auses physical damage to theproperty of another in an amount exceeding seven hundred fifty dollars." RCW 9A.48.080(l)(a). Mr. Morfin-Camacho contends that he did not have the requisite mental state because he was acting to savehimselfratherthan to take or destroy theproperty of another. This argument fails ontwo accounts. First, the trial courtexpressly found Mr. Morfin-Camacho was not credible and thathis story made no sense.6 This court has to defer to that finding and cannot engage in its own credibility determination. Quinn v. Cherry LaneAutoPlaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009).

6 Despite knowing that the robbers had driven back toward the motel where he had been abducted, Mr. Morfin-Camacho returned there andthen made no effortto contact police. The trier offact understandably did notcredit the story. 8No. 30236-9-111 State v. Morfin-Camacho Second, this argument stands appellate review on its head. We look atthe evidence in the light most favorable to the prosecution. Viewed in theproper manner, the evidence easily supported the verdicts. The appellant admittedly drove offwith the truck for the purpose ofgetting away from the warehouse. Itwas intentionally taken. Similarly, he knowingly drove through the warehouse door rather than attempt to open it, and the resulting damage to the door and the truck easily exceeded the $750 statutory limit. Without considering his professed reasoning for doing so, the evidence still amply supported the conviction. The evidence was sufficientto support all three**convictions~** 

### EffectiveAssistance o/Counsel Mr. Morfin-Camacho also argues that his counsel erred by pursuing a necessity defense instead ofa duress defense. This was a matter oftactics, but counsel also pursued the proper defense under the evidence. Mr. Morfin-Camacho also was not prejudicedby the choice ofdefenses. As withthe other issuespresented in this appeal, the standards ofreview ofa claim ofineffective assistance ofcounsel are well understood. The Sixth Amendment guaranty ofthe right to counsel requires that an attorney perform to the standards ofthe profession. Counsel's failure to live up to those standards will require a new trial when the client has been prejudicedby counsel's failure. 

### State v. 

### McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be 9No. 30236-9-111 State v. Morfin-Camacho highly deferential to counsel's decisions. A strategic ortactical decision is not a basis for finding error. 

### Stricklandv. Washington, 466 U.S. 668, 689-91,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on a claim ofineffective assistance, the defendant must show both that his counsel erred and that the error was so significant, in light ofthe entire trial record, that it deprived him ofa fair trial. Id. at 690-92. Necessity is a common law defense that excuses criminal conduct when pressure brought on "by forces ofnature" leads to a criminal actthat avoids a greater harm. 

### State

v. 

### Gal/egos, 73 Wn. App. 644, 651, 871 P.2d 621 (1994); 

### State v. 

### Turner, 42 Wn. App. 242,247, 711 P.2d 353 (1985); 

### State v. 

### Diana, 24 Wn. App. 908, 604 P.2d 1312 (1979). In contrast, duress is a statutory defense. The legislature has provided in relevantpart that duress exists when [t]he actor participated in the crime under compulsion by another who by threat oruse offorce created an apprehension in the mind ofthe actorthat in case ofrefusal he or she or another would be liable to immediate death or immediate grievous bodily injury. RCW 9A.l6.060(1)(a). Appellant argues thatthe necessity defense did not apply in this circumstance because it wasthe actions ofthe two robbers, not a "force ofnature," that compelled his criminal actions. There is some support for this argument. 

### See Gal/egos, 73 Wn. App. 644 (friend's need ofaid did not support necessity defense); 

### Diana, 24 Wn. App. 908 (medical necessity for marijuana use because ofdisease). However, Division Two ofthis

10No. 30236-9-III State v. Morfin-Camacho courthas concluded that a necessity defense is available when the defendanthas been threatened with criminal violence. State v. Niemczyk, 31 Wn. App. 803, 644 P.2d 759 (1982) (escape from prison to avoid sexual assault). We need notresolve this split of authority here because the trial court did consider the necessity defense. Itrejected the defense because the defendant's story was not credible; it did not find the defense unavailable as a matter oflaw. By the plain terms ofthe duress statute, the defense was not available to Mr. Morfin-Camacho. Duress applies when anotherperson coerces the defendant into committing the crime by threatened use offorce ifthe person refuses to participate. It does not apply to crimes committed to avoid another person's threatened criminal activity. In otherwords, duress is a defense ifone is forced by anotherto commit the crime in question; it is not a defense to a crime committed out offear ofinjury by another. See Turner, 42 Wn. App. 242 (duress proper instead ofnecessity when defendant forced to deliver drugs to prison to avoid assaults againsther husband and son); Niemczyk, 31 Wn. App. 803 (duress not available in escape from prison to avoid sexual assault). Duress was not available under these facts. Defense counsel therefore was not ineffective for failing to use that defense. Moreover, even ifthe duress defense hadbeen available here, counsel cannot be faulted for instead choosing to use the necessity defense sinceNiemczyk suggested it was available. Thus, this strategic decision is beyond 11No. 30236-9-111 State v. Morfin-Camacho challengeper 

### Strickland. Finally, even ifthe necessity defense had been improperly presented, Mr. Morfin-Camacho cannot establishprejudice because the trial court nonetheless considered the defense. For all ofthe stated reasons, appellant has not borne his burden ofestablishing that counsel performed deficiently. Affirmed in part; reversed inpart. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but ifwill be filed for public record pursuantto RCW 2.06.040.

WE CONCUR: orsmo, C.J.

Kulik,1.

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