Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41772-3-II

                             Respondent,

       v.

NICOLE ELISE ROBINSON,                                     UNPUBLISHED OPINION

                             Appellant.

       Quinn-Brintnall, J.   --   A jury found Nicole Robinson guilty of second degree malicious 

mischief. The trial court sentenced Robinson to 48 hours in jail and ordered her to pay legal 

financial obligations totaling $3,089.69. Robinson argues that the evidence was insufficient to 

support her conviction and that the court erred by imposing legal financial obligations.  Sufficient 

evidence supports Robinson's conviction and her challenge to legal financial obligations is 

premature. Accordingly, we affirm.

                                            FACTS

       Robinson moved in with  Alisha Willis1 and  her fiancé, Matt Hayes, in March 2008.  

Robinson was pregnant and single; Willis and Hayes invited her to live in their home rent-free so 

1 Alisha Willis married Matt Hayes and changed her name to Alisha Hayes prior to the time of 
trial.  To avoid confusion, Alisha Hayes is referred to as Willis throughout. 

No. 41772-3-II

that she could save money to use when the baby was born.  Over a period of several months, the 

relationship between Robinson and Willis soured, and on July 14, 2008, Willis asked Robinson to 

move out.  Willis told Robinson that she had one to two months to move out and that Willis and 

Hayes would assist her to find a new place and help her with her first month's rent.  

       The following day, Willis came home at 4 pm.  With the assistance of her neighbor, she 

intended to bury her husband's cat, which had died that morning.  On the table, Willis found a 

note from Robinson which said she would be back to retrieve her belongings.  When her neighbor 

failed to arrive, Willis left the house at 4:30 pm.  She placed the cat outside in a box for her 

neighbor to bury.  

       Willis returned to the home with her sister at about 8 pm to find red paint spilled on the 

steps and sidewalk and her front door locked with the deadbolt.  Willis did not have a key for the 

deadbolt and had to help her sister enter the house through a window to unlock the door from the 

inside.  When she entered the house, Willis found significant damage.  Red paint was on the floor 

and sofa.  Someone had written "fuck u!" on the wall, scribbled out Willis's face on pictures and 

had written "burn in hell cunt" on the bathroom mirror using a car marker.  Ex. 3, 8.  Bananas and 

eggs were exploded in the microwave.  Willis found the dead cat inside her mattress in her 

bedroom.  Baby clothes that Willis had bought Robinson as a gift and Robinson's key were sitting 

on the paint-damaged sofa.  

       Donald Bornstedt, who lived across the street, recognized Robinson as one of four people 

who came and frantically moved things out of the house in the late afternoon of July 15, 2008.  

He testified that Robinson and the others made two trips.  The first time they were at the house 

for twenty to thirty minutes, moving things from the house to two vehicles.  The vehicles were 

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Robinson's grey Honda and a pickup truck.  The group left for 15 or 20 minutes and then came 

back.  When they returned, they stayed at the house for another 30 minutes.  No one else came to 

the house until Willis and her sister arrived around 8 pm. 

       Kelso Police Department Sergeant Khembar Yund located Robinson's vehicle.  He noted 

that the vehicle contained items consistent with someone moving.  Yund contacted Robinson by 

phone.  Robinson initially told him that she had not assisted in the move and did not know what 

had happened.  When told that an eyewitness saw her at the scene, she admitted to being there, 

but denied any involvement in the damage.  Yund was unable to match fingerprints on the car 

marker or footprints in the red paint to Robinson.  

       Jennifer Hughes testified that she was present at Willis's home with two other individuals 

and helped Robinson move.  Hughes noticed spilled red paint, but testified that no one in the 

group assisting with the move had spilled it.  She testified that the paint was in a puddle on the 

walkway, and had not been spread around.  She admitted that Robinson was upset at being 

required to move out.  

       At the close of the State's case, Robinson moved to dismiss the case based on insufficient 

evidence.  The trial judge denied the motion, noting that the evidence was slim but sufficient to 

submit to the jury.   The jury convicted Robinson of second-degree malicious mischief on 

December 13, 2010.  The court denied Robinson's motion for judgment notwithstanding the 

verdict, sentenced Robinson to 48 hours in jail and imposed $3,089.69 in legal financial 

obligations.  The court ordered that Robinson make payments in the amount of $50 per month.  

Robinson appeals her conviction and the legal financial obligations.

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                                          ANALYSIS

Sufficiency of the Evidence

       "The test for determining the sufficiency of the evidence is whether, after viewing the 

evidence in the light most favorable to the State, any rational trier of fact could have found guilt 

beyond a reasonable doubt."  State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).  The 

reviewing court must accept the truth of the State's evidence and all inferences that        can 

reasonably be drawn from that evidence.  Salinas, 119 Wn.2d at 201. The reviewing court "must 

defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the 

persuasiveness of the evidence."  State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) 

(citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).  Circumstantial evidence and 

direct evidence are equally reliable in determining sufficiency of the evidence.  State v. Delmarter, 

94 Wn.2d 634, 638, 618 P.2d 99 (1980).

       Robinson  acknowledges  that the State proved someone committed second degree 

malicious mischief by damaging Willis's property.  She argues only that the State failed to present 

sufficient evidence to prove that she committed the crime as either a principal or accomplice. We 

disagree.

       Taken in the light most favorable to it, the State presented evidence that (1) when Willis 

left the house it was undamaged; (2) Bornstedt's testimony placed Robinson at Willis's house 

between the time Willis left  the house and the time she returned; (3) Robinson and Hughes 

admitted that Robinson was in the house during that period; (4) no witnesses testified to seeing 

anyone enter Willis's house during the time she was gone, other than Robinson and the three 

individuals helping her move; (5) Willis asked Robinson to move out the night before; (6) Hughes 

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No. 41772-3-II

testified that Robinson was upset with Willis about being asked to move; (7) the type of damage 

suggests an act by someone angry at the occupants of the house; (8) the damage appeared to be 

directed toward Willis through profanities written on the wall, Willis's face scribbled out in 

pictures, and the dead cat placed in her bed; (9) baby clothes and a card that Willis had given to 

Robinson were left on the paint-damaged couch; and (10) Robinson's key lay on the couch beside 

the baby clothes.  A reasonable jury could find, based on this evidence, that the damage to Willis's 

home was caused by people seen coming and going from the home during the period Willis was 

gone.  A reasonable jury could further find that Robinson had an apparent reason to hold animus 

towards Willis and participated in the crime as either a principal or an accomplice, leaving items 

belonging to her -- baby clothes Willis had given her and the key she was given to use while living 

there -- in the paint on the ruined couch.  This evidence was sufficient to support the jury's verdict 

finding Robinson guilty of second degree malicious mischief.

Order Imposing Costs and Attorney fees

       Robinson argues that the trial court erred by ordering her to pay the portion of her legal 

financial obligation dedicated to court costs and attorney fees because she does not have the 

ability to pay and that the court erred by failing to make specific findings that she had the ability to 

pay.  A court may not order a defendant to pay costs unless the court determines that the 

defendant has the present or future ability to pay.  RCW 10.01.160(3).   But as the Washington 

Supreme Court recently explained, the relevant question in determining the validity of a 

sentencing condition imposing legal financial obligations is whether the defendant is indigent at 

the time the State attempts to enforce the obligation.  State v. Valencia, 169 Wn.2d 782, 789, 239 

P.3d 1059 (2010).  Challenges to sentencing conditions imposing legal financial obligations are 

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therefore not ripe for review until the State attempts to enforce the obligations.  Valencia, 169 

Wn.2d at 789 (citing State v. Ziegenfuss, 118 Wn. App. 110, 113-15, 74 P.3d 1205 (2003), 

review denied, 151 Wn.2d 1016 (2004)); see also State v. Phillips, 65 Wn. App. 239, 243-44, 

828 P.2d 42 (1992) (constitutional challenge to imposition of costs was not ripe for review; it is at 

point of enforcement of financial obligations that indigent may assert constitutional objection to 

payment).  Because the State has not attempted to enforce payment, Robinson's challenge to her 

legal financial obligations is premature.

       We affirm Robinson's conviction.  We do not reach her challenge to her legal financial 

obligations.

       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.

                                                 QUINN-BRINTNALL, J.
We concur:

HUNT, P.J.

VAN DEREN, J.

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