STATE OF WASHINGTON v. S.S., Appellant. (2011)

respondent. We find no error, and affirm.

BACKGROUND

On February 12, 2009, S.S. and K.W., both 14 years old, entered a wooden enclosure owned by Wizards Casino in Burien.   There, the two consumed alcohol and prescription medication while smoking cigarette butts on a golf cart owned by the casino.   After obtaining more alcohol, Orajel tooth desensitizer and Nyquil, they returned to the enclosure to consume these substances.   Each of the boys lit multiple fires using the plastic Orajel swabs and dripped the burning plastic onto the golf cart seat.   S.S. admitted burning a hole through the foam padding of the seat.   The boys then left the enclosure.

The golf cart ignited into a large fire that consumed the golf cart, the north side fence of the wooden enclosure, and extra kitchen equipment the casino stored there.   The radiant heat of the fire damaged a metal storage container and its contents.

Casino staff called 911 and Burien Fire Department arrived to extinguish the blaze.   As King County certified fire investigator Ted Devine viewed surveillance footage with the casino manager, S.S. and K.W. returned to the parking lot.   The manager recognized the boys as having been in the area earlier that day and the day before.   Devine detained the boys and questioned them separately.   After waiving their rights, the boys admitted what they had done and were arrested.   The State charged the two with arson in the second degree.

The court denied S.S.'s motions to sever his hearing from K.W.'s and found both guilty as charged.

DISCUSSION

Arson in the second degree requires proof that the respondent “knowingly and maliciously” caused a fire that damaged property.¹  S.S. contends there was no proof of malice to support the court's determination of guilt.

In a challenge to the sufficiency of the evidence, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the accused.²  Evidence is sufficient if, when viewed in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.³

Malice means “an evil intent, wish, or design to vex, annoy, or injure another person” and “may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty.” ⁴  Personal ill will toward the owner of the property is not required,⁵ and malice may be inferred from circumstantial evidence that a fire was deliberately set.⁶

Here, the undisputed evidence is that S.S. repeatedly set fire to Orajel swabs and let the burning plastic drip onto and burn the casino's golf cart.   This easily satisfies the definition of “malice.”

S.S. argues that any malice extends only to burning the golf cart seat and not to the ensuing blaze that damaged other structures.   He therefore suggests the court should have found him guilty only of the lesser included offense of reckless burning.⁷  But the State did not need to prove S.S. intended to burn the other structures.   The statute requires only that S.S. maliciously caused a fire that damaged “any property,” including the golf cart seat.   The evidence amply supports that charge.

S.S. next contends the court violated his Sixth Amendment rights under Bruton v. United States by refusing to sever his prosecution from K.W.'s based on the respondents' implication of each other in their respective statements.⁸  Whether the trial court has violated the confrontation clause is a question of law, reviewed de novo.⁹

Under Bruton, admitting a non-testifying codefendant's confession that names the defendant as a participant in the crime violates the defendant's Sixth Amendment right to confrontation.¹⁰  To comply with Bruton, CrR 4.4 requires separate trials unless the defendant's confession is redacted to exclude references implicating the co-defendant.¹¹  Since J.W.'s statement was admitted without redaction and J.W. did not testify, S.S. contends he was denied his right to confrontation.   We disagree.

The basis of Bruton is that even a carefully instructed jury cannot be expected to disregard completely the incriminating confession of a non-testifying codefendant.¹²  But S.S. and J.W. were both tried before a judge, not a jury.¹³  Trial judges are presumed to be able to disregard inadmissible evidence.¹⁴  In this case, the court explicitly did so, stating, “The court relied upon [K.W.'s] transcribed statement only to the extent that it implicated [K.W.]. Any references to [S.S.] within [K.W.'s] statement were not considered in determining the innocence or guilt of [S.S.]” ¹⁵ The court did not violate S.S.'s right to a fair trial.

Further, any error was clearly harmless, as S.S.'s own statement provides overwhelming evidence of his guilt.¹⁶  S.S. told investigators:

I lit an Orajel on fire [to] see if it would like explode or something.   And then it didn't, and then it started melting and dripping fire and stuff, so then I played with it a little bit more.   And then I lit the cartridge on fire, and then ․ that lit it on fire, and it started dripping fire, so then I put it on the seat and then it burned a hole through it or in it.[17]

The court found S.S.'s statement to be credible.

Affirmed.

WE CONCUR:

FOOTNOTES

FOOTNOTE.  RCW 9A.48.030 (“A person is guilty of arson in the second degree if he knowingly and maliciously causes a fire or explosion which damages ․ any property.”).State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995).Id. at 596–97.RCW 9A.04.110(12).State v. Nelson, 17 Wn.App. 66, 69–72, 561 P.2d 1093 (1977).State v. Clark, 78 Wn.App. 471, 481, 898 P.2d 854 (1995).See RCW 9A.48.040 (“A person is guilty of reckless burning in the first degree if he recklessly damages a building or other structure ․ by knowingly causing a fire or explosion.”).391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).State v. Jones, 168 Wn.2d 713, 719–20, 230 P.3d 576 (2010).Bruton, 391 U.S. at 137.CrR 4.4 provides, in part, “A defendant's motion for severance on the ground that an out-of-court statement of a codefendant referring to him is inadmissible against him shall be granted unless:  (i) the prosecuting attorney elects not to offer the statement in the case in chief;  or (ii) deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement.”Bruton, 391 U.S. at 135–36 (“[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. ”).Although Washington courts have not articulated whether Bruton applies in this context, a “myriad of Courts of Appeals ․ have recognized that the rule and rationale of Bruton do not apply to bench trials.”   Johnson v. Tennis, 549 F.3d 296, 300 (3d Cir.2008) (collecting cases);  see also 21A Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5064.2, at 290 & n.5 (2d ed.   2005 & Supp.2010) ( “because Bruton seeks to protect the defendant against the inability of the jury to understand or abide by limiting instructions, the Bruton doctrine does not apply in cases tried to the court”).State v. Melton, 63 Wn.App. 63, 68, 817 P.2d 413 (1991);  State v. Jenkins, 53 Wn.App. 228, 231, 766 P.2d 499 (1989).Clerk's Papers at 19.See State v. Larry, 108 Wn.App. 894, 907, 34 P.3d 241 (2001) (any potential Bruton violation was harmless beyond a reasonable doubt where there was substantial independent evidence identifying defendant as the perpetrator).Clerk's Papers at 20–21.

Ellington, J.—S.S. appeals his juvenile adjudication, contending there is insufficient evidence to support a determination of guilt on the second degree arson charge and that the court violated his Sixth Amendment right to confrontation by refusing to sever his hearing from that of his nontestifying co