Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                             FILED

                                                         FEB 23, 2012

                                                  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

STATE OF WASHINGTON,                           )       No. 29529-0-III
                                               )       (consolidated with
                             Respondent,       )       No. 29603-2-III)
                                               )
                      v.                       )
                                               )
MICHAEL EUGENE HAZELMYER,                      )
                                               )
                             Appellant.        )
___________________________________)                   Division Three
In re the Personal Restraint Petition          )
of:                                            )
                                               )
MICHAEL E. HAZELMYER,                          )
                                               )
                             Petitioner.       )       UNPUBLISHED OPINION

       Korsmo, J.  --  By appeal and by personal restraint petition (PRP), Michael 

Hazelmyer brings various challenges to his felony conviction for harassment.  The 

challenges are without merit.  Therefore, we affirm the conviction and dismiss the PRP.

                                            FACTS

       This case arises from a longstanding property dispute involving an easement.  Mr. 

No. 29529-0-III
No. 29603-2-III
State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

Hazelmyer and Shawn Mattix are neighbors.  Mr. Hazelmyer accesses his property from 
an easement road that crosses the Mattix1 property.  The two men have a history of 

disputes concerning the easement road.  One argument between the two men occurred 

November 29, 2009.  In the course of that encounter, Mr. Mattix showed Mr. Hazelmyer 

a stun gun.

       Mr. Hazelmyer reported the incident that day to the Washington State Patrol 

(WSP).  He talked with communications officer George Neal via telephone; the call was 

recorded by WSP.  Mr. Hazelmyer told Neal that he did not believe the Springdale town 

marshal would address his complaint.  He told the officer that he would take his ".303 out 

there . . . if this guy keeps playing this game I'm going to -- I will.  You know?  It's -- I 

have no other recourse." Concerned about potential escalation, the communications 

officer sent an email to WSP supervisor Sergeant Chan St. Clair.

       After listening to the recording, Sergeant St. Clair called Mr. Hazelmyer the 

following day.  He told an agitated Mr. Hazelmyer that WSP had no jurisdiction over the 

matter and that any investigation would have to be conducted by the town marshal.  Mr. 

Hazelmyer became more agitated and launched an obscenity-laced tirade during which he 

       1 Mr. Mattix's mother, Ms. Siemers, is the property owner.
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No. 29529-0-III
No. 29603-2-III
State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

referenced the marshal as a "town clown."  He confirmed to the sergeant that he did own 

a .303 British rifle.  He repeated several times that, "I'll take him down," or "I guess I'm 

going to have to take him down." He did not expressly indicate who he was threatening 

to shoot.

       Mr. Mattix petitioned for a civil protection order on December 3.  Mr. Hazelmyer 

did the same thing on December 23.  The two cases were consolidated and the trial court 

ultimately entered mutual restraining orders.  

       The Springdale Town Marshal had been alerted to the conversations by WSP.  He 

eventually contacted Mr. Mattix and another neighbor, Mr. Wolff, and obtained 

statements from them.  The prosecutor filed one count of felony harassment -- based on a 

threat to kill theory -- and one count of criminal trespass.  The charging document 

referenced the conversations of November 29 and 30, but did not specify the victim of the 

harassment count.

       The matter eventually proceeded to bench trial.  The trial judge found Mr. 

Hazelmyer guilty of harassment, but acquitted him on the trespass charge.  He was 

sentenced to 90 days in jail; 30 of the days were allowed to be converted to community 

service. Mr. Hazelmyer timely appealed to this court.

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No. 29529-0-III
No. 29603-2-III
State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

       Prior to sentencing, Mr. Hazelmyer filed a pro se motion for a new trial along with 

a request for new appointed counsel to represent him.  The trial court denied the request 

for a new attorney.  It struck the pro se motion with leave to renote it.  The motion was 

never renoted for argument.  

       The trial court permitted Mr. Hazelmyer to remain out of custody pending appeal, 

but revoked the release when Mr. Hazelmyer plowed the easement and created snow 

berms that blocked Mr. Mattix's driveway.  The court set bond for the appeal and entered 

a condition that Mr. Hazelmyer personally not plow or maintain the easement.

       After the modification of relief conditions, Mr. Hazelmyer filed a PRP.  This court 

consolidated it with the direct appeal. Mr. Hazelmyer also filed a Statement of 

Additional Grounds (SAG) in support of the appeal.

                                         ANALYSIS

       The appeal presents the sole issue of whether the charging document was defective 

in failing to name a victim of the harassment count.  The PRP reiterates the arguments 

made in the motion for a new trial.  We will address the two documents separately.

       Charging Language. The appeal focuses on the sufficiency of the charging 

document, contending that the Information was defective by failing to name Mr. Mattix 

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No. 29603-2-III
State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

as the person being threatened.  We conclude that the document did state an offense and 

was not constitutionally defective.

       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 if the charge 

is stated, a defendant who shows prejudice from "inartful" pleading also receives a 
dismissal of charges without prejudice.  Id. at 105-106.2

       Mr. Hazelmyer did not challenge the charging document until this appeal.  Thus, 

the liberal construction standard applies here.  Id.  He contends that the standard is easily 

met because the victim's name was not included in the charging language and there is no 

way to infer a name from the charging document.  While we agree that there would be no 

basis in the charging document for determining the name of the harassment victim, Mr. 

       2 Appellant does not contend that the charging document was "inartful."
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No. 29529-0-III
No. 29603-2-III
State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

Hazelmyer has not established that the victim's name is a required element of the charge.

       Mr. Hazelmyer relies upon City of Seattle v. Termain, 124 Wn. App. 798, 103 

P.3d 209 (2004), and State v. Clowes, 104 Wn. App. 935, 18 P.3d 596 (2001).  Those 

cases involved, respectively, the crimes of violating a domestic violence order and 

interfering with the reporting of a crime of domestic violence.  As explained in Termain, 

because the terms of the domestic violence order defined the scope of criminal liability, it 

was necessary to at least identify the order that had been violated in order to prove the 

violation.  124 Wn. App. at 804.  In Clowes, the court reasoned that the crime of 

interfering with the reporting of a crime of domestic violence could not be defined 

without either identifying the victim or the underlying crime that could not be reported.  

104 Wn. App. at 942.  

       Those cases involved specific defects that were more critical to the definition of 

the crimes involved than the identity of the crime victim -- the methodology of the 

commission of the respective offenses was undiscoverable without more specific 

information in the charging document.  Here, the charging document identified the dates 

of the offense and the methodology -- threats to kill another person.  This is more detail 

than the defective charging documents in Termain and Clowes.  

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No. 29529-0-III
No. 29603-2-III
State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

       This case is closer factually to State v. Plano, 67 Wn. App. 674, 838 P.2d 1145 

(1992).  There the charging document had not identified the victim of an assault.  The 

court concluded that the name of an assault victim is not an essential element of the crime 

of fourth degree assault.  Id. at 679-680.  As in Plano, we conclude that the identity of the 
person threatened is not an essential element of the offense.3  An accused is already told 

by the Information what he is alleged to have done; the identity of the person threatened 

is likely known to him.  In those rare instances where the identity is unknown and is 

necessary to the defense, the issue can be easily addressed by requesting a bill of 

particulars.  CrR 2.1(c).  

       The charging document was not constitutionally defective.

       Pro Se Issues. Mr. Hazelmyer has filed both a SAG in support of the appeal and a 
PRP.  The SAG argues that the evidence was insufficient to support the conviction.4  The 

PRP presents varied claims that also were included in the motion for a new trial.  We will 

address the evidentiary sufficiency claim first.

       3 Because the prosecutor is going to need to produce the victim at trial to prove the 
"fear" element of harassment, there is no reason why the victim should not be named in 
the charging document. 
       4 It also includes an argument concerning the motive for the prosecution which is 
also presented in the PRP.  We will address that issue in conjunction with our discussion 
of the PRP. 
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No. 29529-0-III
No. 29603-2-III
State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

       Well settled rules govern review of a challenge to the sufficiency of the evidence.  

The reviewing court does not weigh evidence or sift through competing testimony.  

Instead, the question presented is whether there is sufficient evidence to support the 

determination that each element of the crime was proven beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. 

Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980).  The reviewing court will consider 

the evidence in a light most favorable to the prosecution.  Id.  

       Mr. Hazelmyer concentrates his challenge on whether the victim truly had a well 

founded fear of being killed.  He points out that charges were not filed until months after 

the incident and after the civil restraining orders had issued.  From these facts, he 

concludes Mr. Mattix did not have a reasonable, well-founded fear that the threats would 

be carried out.  The trier-of-fact disagreed.  It is not this court's job to reweigh the 

evidence; as noted, our sole function is to determine whether there was evidence to 

support the factfinder's decision.  There was.  The threats themselves, to use a .303 rifle 

and to "take him down" adequately conveyed the intent to kill.  In light of the troubled 

relations between the parties, the trial judge could conclude that these were a true threat 

to kill and that Mr. Mattix's fear was genuine and reasonable.

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State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

       The evidence was sufficient to support the conviction.  

       The PRP presents several distinct challenges, but the same standard of review 

applies to them all.  The burdens imposed on a petitioner in a PRP are significant.  

Because of the significant societal costs of collateral litigation often brought years after a 

conviction and the need for finality, relief will only be granted in a PRP if there is 

constitutional error that caused substantial actual prejudice or if a nonconstitutional error 

resulted in a fundamental defect constituting a complete miscarriage of justice.  In re 

Pers. Restraint of Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005).  It is the 

petitioner's burden to establish this "threshold requirement."  Id. To do so, a PRP must 

present competent evidence in support of its claims.  In re Pers. Restraint of Rice, 118 

Wn.2d 876, 885-886, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992).  If the facts 

alleged would potentially entitle the petitioner to relief, a reference hearing may be 

ordered to resolve the factual allegations.  Id. at 886-887.  

       This PRP fails to satisfy these heavy burdens and the specific challenges can be 

summarily addressed.  The PRP is styled on the trial court's denial of the pro se motion 
for a new trial.  However, the trial court never ruled on the motion.5 For that reason, and 

       5 Because he was represented by counsel, Mr. Hazelmyer had no basis for bringing 
the pro se motion and the trial court cannot be faulted for ignoring it. 
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No. 29529-0-III
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In re Pers. Restraint of Hazelmyer

because a PRP is an independent action rather than merely a vehicle for a second appeal, 

we must consider whether the allegations of the PRP establish an entitlement to relief 

rather than whether they show the trial court erred in dealing with the new trial motion. 

       The PRP first alleges that trial witnesses conversed with each other outside the 

courtroom in violation of the trial court's directive that witnesses not talk to each other. 

The PRP does not establish how this nonconstitutional error resulted in a complete 

miscarriage of justice.  It does not argue that witnesses provided information unknown to 

the defense in discovery or otherwise suggest how the proceedings were so significantly 

tainted to justify a new trial.

       The second allegation is that the prosecutor failed to ensure an adequate 

investigation before charging, citing to the charging standards of the Sentencing Reform 

Act of 1981, RCW 9.94A.411.  However, by its terms the charging standards do not 

create substantive or procedural rights for the accused.  See State v. Lee, 69 Wn. App. 31, 

33-34, 847 P.2d 25, review denied, 122 Wn.2d 1003 (1993).  Thus, even if there had been 

an inadequate investigation (and the record does not reflect that there was), it is not a 

basis for relief.

       The third allegation is that an improper motive was behind the charges.  He once 

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No. 29529-0-III
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State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

again complains that Mr. Mattix waited to bring charges until after the civil matter was 

litigated.  This allegation founders upon the fact that only the prosecutor, not the victim, 

can file felony charges.  Victims do not file charges in Washington.  That power is left to 

the county prosecutor.  Even if Mr. Mattix had an improper motive (and once again the 

record does not support the allegation), it was of no moment because the county 
prosecutor was the person who decided whether (and when) to file charges.6

       The fourth allegation is that the trial court erred in denying a defense request for a 

continuance once it granted the prosecutor's pretrial motion to admit evidence of another 

incident involving Mr. Hazelmyer.  A trial court's continuance ruling is reviewed for 

abuse of discretion.  State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004).  

Discretion is abused when it is exercised on untenable grounds or for untenable reasons.  

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).  The PRP does not 

establish any abuse of discretion.  In particular, it identifies no specific harm to the 
defense that would have been remedied by an extended period of preparation.7

       6 This allegation also ignores the ironic fact that it was Mr. Hazelmyer's telephone 
calls to the WSP that initiated the investigation, not the defendant's earlier confrontation 
with the victim. 
       7 There also could be no prejudice because the trial court's findings do not refer to 
the evidence giving rise to the continuance request, which suggests it was of no particular 
importance to the verdict.  
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No. 29529-0-III
No. 29603-2-III
State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

       The final allegation is a claim that the revised release conditions were vague and 

confusing.  In particular, Mr. Hazelmyer complains about perceived inability to plow the 

easement.  The petition does not explain why any problem with a release condition would 

invalidate the conviction, which is the remedy sought.  Because there is no connection 

between the alleged deficiency and the desired remedy, this allegation is meritless.  The 

condition also is not vague.  The condition expressly directs Mr. Hazelmyer to have 

someone else conduct maintenance on the easement.  It also provides that Mr. Hazelmyer 

is not to engage in snow removal; it does not prohibit him from hiring someone else to do 

so.  This condition is reasonable in light of Mr. Hazelmyer's misuse of the easement in 

order to annoy his neighbors.  It also is very clear.  It is not vague.

       The PRP falls so far short of meeting its burdens that we need not direct a 

reference hearing concerning the factual allegations.  Accordingly, the PRP is dismissed.

       Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

                                            _________________________________
                                                           Korsmo, J.

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No. 29529-0-III
No. 29603-2-III
State v. Hazelmyer
In re Pers. Restraint of Hazelmyer

WE CONCUR:

______________________________              ___________________________________
       Kulik, C. J.                                        Sweeney, J.

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