FILED 

APR 25, 2013 

In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


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

) 

Respondent, ) 

) 

v. ) 

) UNPUBLISHED OPINION 

ELUTERIO MORFIN-CAMACHO, ) 

) 

Appellant. ) 

KORSMO, C.J. - A stolen potato truck burst through the side of a warehouse and 

left the scene without providing the information required of a driver involved in an 

accident. We conclude the evidence supported the hit and run and other associated 

convictions. 

FACTS 

The bizarre events ofthe early hours ofMay 22,2011, allegedly had their genesis 

in a motel parking lot. Mr. Eluterio Morfin-Camacho was assisting his girl friend in 

moving from one Pasco motel to another when he encountered two strangers in the 
No.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 Motell 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 to remove all of his clothing and jewelry. He 

complied with the command. The car stopped and he was ordered out. Fearing that he 

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 transport truck and a pair of overalls, but no telephone. While 

dressing in the overalls, he heard another vehicle outside. He jumped into the truck, 

started it up, and drove out through the 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. He borrowed a phone from a stranger and used it to 

call another friend rather than the police. He later admitted that he knew he was only 

about a mile away from the police station, but he made no effort to contact them. 

I The Airport Motel was the destination to which his girl friend was moving. 

2 

No. 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 of intoxicants, and 

appearing to have mood swings. He was barefooted and dressed solely in the overalls; he 

still had the 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 of an 

accident. The case eventually proceeded to bench trial. The case was defended on the 

basis of necessity. The trial judge 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 court imposed concurrent terms of 90 days' incarceration for the three 

offenses. Mr. Morfin-Camacho then timely appealed to this court. 

ANALYSIS 

This appeal challenges the adequacy of the charging document, the sufficiency of 

the evidence supporting the three convictions, and the performance of defense counsel for 

pursuing a necessity defense instead of a 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 of the defense at trial, which admitted 

3 

No. 30236-9-111 

State v. Morfin-Camacho 

Charging Document 

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. 

Settled principles govern review of this claim. A charging document must state 

the elements of the alleged crime in order to give the accused an understanding of the 

crime charged. "All essential elements of a crime, statutory or otherwise, must be 

included in a charging document in order to afford notice to an accused of the nature and 

cause of the 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 if the necessary facts can be found. If not, the 

charge will be dismissed without prejudice. Even ifthe charge is stated, a defendant who 

shows prejudice from "inartful" pleading also receives a dismissal of charges without 

prejudice. fd. at 105-06. 

Mr. Morfin-Camacho did not challenge the charging document until this appeal. 

Thus, the liberal construction standard applies here. fd. RCW 46.52.010(2) governs the 

circumstance of an accident resulting in property damage, while RCW 46.52.010(1) 

the charges but claimed justification, 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 619,624-25,964 P.2d 1187 (1998). 

4 
No. 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 of any vehicle involved in an accident resulting only in damage 

to property fixed or placed upon or adjacent to any public highway shall 

take reasonable steps to locate and notify the owner or person in charge of 

such property ofsuch fact and of the name and address of the operator and 

owner of the vehicle striking such property, or shall leave in a conspicuous 

place upon the property struck a written notice, giving the name and 

address of the operator and of the owner ofthe vehicle so striking the 

property, and such person shall further make report ofsuch accident as in 

the case of other accidents upon the public highways ofthis state. 

The final charging document filed in this case alleged in count 1 that 

the said Eluterio Camacho in the County of Franklin, State of Washington, 

on or about March 22, 2011, then and there, while driving a motor vehicle, 

with knowledge that an accident occurred, was involved in an accident 

resulting in property damage to an unattended vehicle or other property, 

failed to immediately stop his vehicle at the scene ofthe accident or as 

close thereto as possible, and locate or attempt to locate, and notify the 

operator or owner or person in charge ofthe damaged property of his 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 accident that causes damage to 

property adjacent to 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 mention the reporting requirement. 

3 Prior to amendment by Laws of2003, ch. 53, § 241, the statute treated 

unattended vehicles and other property the same for purposes ofthis statute. 

5 

No. 30236-9-III 

State v. Morfin-Camacho 

Even giving the charging document the liberal construction required by the belated 

challenge, it is deficient on the accident reporting element. A driver's duties are two-fold 

after an accident-notify the property owner (by one of two methods) and file an accident 

report. The charging document here does not state that second duty and there is no way 

to infer that element from the other charging language.4 It did not adequately notify Mr. 

Morfin-Camacho of all ofthe elements of the offense. 

Accordingly, the charge of failure to stop in count I is reversed without prejudice. 

Sufficiency o/the Evidence 

Mr. Morfin-Camacho challenges the sufficiency of the evidence to support all 

three convictions, arguing that the State failed to prove that he had not properly reported 

the accident and that his actions were justified, thus negating the mental elements of the 

other two counts. We disagree. 

The sufficiency ofthe evidence to support a verdict also is reviewed according to 

long-settled principles. The reviewing court does not weigh the evidence or sift through 

competing testimony. Instead, the focus is whether there is sufficient evidence to support 

the determination that each element ofthe crime was proved beyond 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 was prejudiced by its inclusion. 

6 

No. 30236-9-111 

State v. Morfin-Camacho 

Green, 94 Wn.2d 216, 221-22,616 P.2d 628 (1980). The reviewing court will consider 

the evidence in a light most favorable to the prosecution. Green, 94 Wn.2d at 221-22. 

Failure to Stop. Appellant contends that the State did not establish that the 

warehouse was adjacent to a public highway or that he failed in his reporting duties. The 

evidence did establish those elements of the crime. 

As noted previously, RCW 46.52.010(2) requires the State to prove that the 

defendant damaged "property fixed or placed upon or adjacent to any public highway." 

There was evidence in the record to support this element. Officer Anthony Aceves 

described the location as "on 4th" and that if you traveled on 4th, "you'll run right into 

it." Report of Proceedings (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." 

The reporting element was also established. Mr. Morfin-Camacho did not leave a 

note at the scene, nor did 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 to police does not satisfY these two requirements ofthe statute. 

5 Indeed, Mr. Morfin-Camacho's justification for taking the truck and driving 

through the door (instead ofopening it) was that he heard a vehicle right outside the 

warehouse. That explanation itself suggests the building was adjacent to a public 

highway. 

7 

No. 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 and Malicious Mischief Appellant also contends that, in 

light ofhis desperate situation, the record does not support that he acted culpably. His 

view of the incident ignores the standards that govern this court's review. 

A person commits second degree taking a motor vehicle when, without 

permission, he "intentionally ... drives away any ... motor vehicle" belonging to 

another person. RCW 9A.56.075(1). Second degree malicious mischief is committed 

when a person "knowingly and maliciously [c ]auses physical damage to the property 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 save himself rather than to take or destroy the property of 

another. This argument fails on two accounts. First, the trial court expressly found Mr. 

Morfin-Camacho was not credible and that his story made no sense.

6 This court has to 

defer to that finding and cannot engage in its own credibility determination. Quinn v. 

Cherry Lane Auto Plaza, 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 and then made no effort to contact 

police. The trier of fact understandably did not credit the story. 

8 

No. 30236-9-111 

State v. Morfin-Camacho 

Second, this argument stands appellate review on its head. We look at the 

evidence in the light most favorable to the prosecution. Viewed in the proper manner, the 

evidence easily supported the verdicts. The appellant admittedly drove off with the truck 

for the purpose of getting away from the warehouse. It was 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 sufficient to support all three convictions~ 

Effective Assistance o/Counsel 

Mr. Morfin-Camacho also argues that his counsel erred by pursuing a necessity 

defense instead of a duress defense. This was a matter of tactics, but counsel also 

pursued the proper defense under the evidence. Mr. Morfin-Camacho also was not 

prejudiced by the choice of defenses. 

As with the other issues presented in this appeal, the standards of review of a 

claim of ineffective assistance of counsel 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 prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 

334-35, 899 P .2d 1251 (1995). In evaluating ineffectiveness claims, courts must be 

9 

No. 30236-9-111 

State v. Morfin-Camacho 

highly deferential to counsel's decisions. A strategic or tactical 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 of ineffective 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 of a fair trial. Id. at 690-92. 

Necessity is a common law defense that excuses criminal conduct when pressure 

brought on "by forces of nature" leads to a criminal act that 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 relevant part 

that duress exists when 

[t]he actor participated in the crime under compulsion by another who by 

threat or use of force created an apprehension in the mind ofthe actor that 

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 that the necessity defense did not apply in this circumstance 

because it was the actions ofthe two robbers, not a "force of nature," that compelled his 

criminal actions. There is some support for this argument. See Gal/egos, 73 Wn. App. 

644 (friend's need of aid did not support necessity defense); Diana, 24 Wn. App. 908 

(medical necessity for marijuana use because ofdisease). However, Division Two ofthis 

10 

No. 30236-9-III 

State v. Morfin-Camacho 

court has concluded that a necessity defense is available when the defendant has 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 not resolve this split of 

authority here because the trial court did consider the necessity defense. It rejected the 

defense because the defendant's story was not credible; it did not find the defense 

unavailable as a matter of law. 

By the plain terms of the duress statute, the defense was not available to Mr. 

Morfin-Camacho. Duress applies when another person coerces the defendant into 

committing the crime by threatened use of force ifthe person refuses to participate. It 

does not apply to crimes committed to avoid another person's threatened criminal 

activity. In other words, duress is a defense if one is forced by another to commit the 

crime in question; it is not a defense to a crime committed out of fear of injury by 

another. See Turner, 42 Wn. App. 242 (duress proper instead of necessity when 

defendant forced to deliver drugs to prison to avoid assaults against her 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 had been 

available here, counsel cannot be faulted for instead choosing to use the necessity defense 

since Niemczyk suggested it was available. Thus, this strategic decision is beyond 

11 

No. 30236-9-111 

State v. Morfin-Camacho 

challenge per Strickland. Finally, even if the necessity defense had been improperly 

presented, Mr. Morfin-Camacho cannot establish prejudice because the trial court 

nonetheless considered the defense. 

For all of the stated reasons, appellant has not borne his burden of establishing that 

counsel performed deficiently. 

Affirmed in part; reversed in part. 

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

Washington Appellate Reports, but ifwill be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 

orsmo, C.J. 

Kulik,1. 

12