The State of Washington, Appellant, v. Sharon K. Freigang, Respondent, 115 Wash. App. 496

Quinn-Brintnall, A.C.J. — The State charged Sharon K. Freigang with second degree assault with a firearm. After a witness to the alleged assault testified at a pretrial hearing, she made a Knapstad motion to dismiss the charge and the trial judge granted the motion. The State filed an amended information adding an attempted second degree assault with a firearm charge and reasserting the initial assault charge. The court likewise granted Freigang’s second Knapstad motion. The State appeals the dismissals.

Because the trial court improperly excluded the State’s affidavit and declined to determine the admissibility of evidence that, if admissible, requires denial of the Knapstad motions, we vacate the orders of dismissal and remand. FACTS About 6:45 p.m., on April 27, neighbors Freigang and Todd O’Mealy were arguing about O’Mealy’s dog running loose when Freigang pepper sprayed O’Mealy. O’Mealy went to the home of another neighbor, George Iuliano, and asked him to report the incident to the police. Later that evening, Iuliano walked past Freigang’s house and saw her outside with a shotgun in her arms.

Freigang yelled: “Todd, get the hell out of here or I’m going to shoot you.” Clerk’s Papers (CP) at 20 (Iuliano’s testimony at Knapstad hearing). Freigang apparently mistook Iuliano for O’Mealy. Shortly thereafter, Iuliano told O’Mealy what happened and that Freigang had a shotgun in her hand. O’Mealy called the police. The State charged Freigang with one count of second degree assault against Iuliano, and one count of fourth degree assault and one count of felony harassment for the pepper spray incident involving O’Mealy.

On Freigang’s motion, the court severed the counts relating to O’Mealy from the second degree assault involving Iuliano. During the hearing on the motion to sever, Iuliano testified that Freigang did not point the shotgun at him. Based on this testimony, Freigang moved under Knapstad to dismiss the second degree assault charge. Freigang also presented an affidavit from Iuliano that stated: That on April 27, 1999, I was in the company of Sharon Freigang as I walked her back to her home after I saw her arguing with Todd O’Mealy about his dog running loose in our neighborhood.

Later that evening, as I walked past Mrs. Freigang’s home, I saw her outside holding a shotgun in her arms. Although when I first saw her, the gun was faced in my direction, Mrs. Friegang never pointed the shotgun at me, and I was never afraid for my safety because of the gun. CP at 119-20 (Iuliano Aff.). O’Mealy described these same events as follows: George Iuliano came back up to me and said that he had been visiting another neighbor and was just walking back, past Ms. Freigang’s home, when Ms. Freigang came outside and pointed a shotgun at him. Mr. Iuliano told me that when Ms.

Freigang pointed the gun at him, she threatened to kill him, and then began calling Mr. Iuliano, “Todd.” It seemed to Mr. Iuliano that Ms. Freigang had mistaken Mr. Iuliano for me, Todd O’Mealy. George Iuliano said that Ms. Freigang scared him with a shotgun, and he was scared she was going to shoot him because she mistook him for me, Todd O’Mealy. George Iuliano warned me not to walk near Ms. Freigang’s house because she was apparently very angry with me, she had a gun, and was talking about how she was going to kill me. When Mr.

Iuliano was explaining what had happened he was upset and very excited, and it appeared that he had been frightened by what had just happened. The 911 operator was called and Mr. Iuliano explained what had just occurred to the sheriff’s deputy who came and took a report. CP at 60 (Decl. of Todd O’Mealy). On September 9, the State filed a new information again charging Freigang with second degree assault (Count

I) and adding an attempted second degree assault (Count II) charge, both based on the incident with Iuliano. Following a hearing on Freigang’s second Knapstad motion, the court ruled that the undisputed facts were legally insufficient to support a prima facie case of second degree assault or an attempt of the same and dismissed both counts. The court also ruled that there were no material facts in dispute. The State appeals. This case presents two issues. Is an affidavit from a nonwitness deputy prosecutor (State’s affidavit) competent evidence in a Knapstad motion?

And, if so, what information in the State’s affidavit must the trial court consider before determining whether the evidence is sufficient to establish a prima facie case that defeats a defendant’s Knapstad motion? ANALYSIS We review these questions of law de novo. State v. Barajas, 88 Wn. App. 387, 389, 960 P.2d 940 (1997), review denied, 134 Wn.2d 1026 (1998). In Knapstad, 107 Wn.2d at 356, the Supreme Court adopted a

summary judgment procedure for use in criminal cases. The Knapstad court set out the following procedure to avoid a “trial when all the material facts are not genuinely in issue and could not legally support a judgment of guilt.” 107 Wn.2d at 356. A Washington defendant should initiate the motion by sworn affidavit, alleging there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt. The affidavit must necessarily contain with specificity all facts and law relied upon in justification of the dismissal.

Unless specifically denied, the factual matters alleged in the motion are deemed admitted. The State can defeat the motion by filing an affidavit which specifically denies the material facts alleged in the defendant’s affidavit. If material factual allegations in the motion are denied or disputed by the State, denial of the motion to dismiss is mandatory. If the State does not deny the undisputed facts or allege other material facts, the court is required to ascertain in the omnibus hearing whether the facts which the State relies upon, as a matter of law, establish a prima facie case of guilt.

If the motion is granted the court must enter a written order setting forth the affidavits and other materials it has considered and its conclusion regarding the insufficiency of the evidence. Since the court is not to rule on factual questions, no findings of fact should be entered. The court has the discretion to order the defendant held in custody or admitted to bail for a reasonable, specified time pending the filing of a new indictment or information. If no new information is filed the defendant would be discharged. Knapstad, 107 Wn.2d at 356-57. The Knapstad procedure resembles a

summary judgment motion in civil cases. In both instances, the court does not pass judgment on the facts. Compare Safeco Ins. Co. of Am. v. Butler, 118 Wn.2d 383, 394-95, 823 P.2d 499 (1992) (summary judgment is appropriate only if reasonable persons could reach but one conclusion) with State v. Groom, 133 Wn.2d 679, 684, 947 P.2d 240 (1997) (court is to determine whether the undisputed material facts establish a prima facie case of guilt).

Summary judgment is appropriate where reasonable minds could reach but one conclusion from the admissible facts in evidence. Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996). However, there are three differences between the

summary judgment procedures created in Knapstad and the civil

summary judgment procedures governed by CR 56. First, in a Knapstad motion, the State’s affidavit of probable cause and responding affidavit can be made by someone not competent to testify in the trial. See, 107 Wn.2d at 356. See, e.g., Groom, 133 Wn.2d at 693. Second, when a Knapstad motion is granted, the State may refile the charges because a Knapstad dismissal is without prejudice. And the third difference is that only the State can appeal the granting of the Knapstad motion. Here, the trial court erred when it refused to consider the State’s affidavit because it did not meet the requirement of CR 56(

e) that the affiant be competent to testify to the matters stated therein. Knapstad, 107 Wn.2d at 356, expressly provides that “the State can defeat the motion by filing an affidavit which specifically denies the material facts alleged in the defendant’s affidavit.” We hold that an affidavit of a nonwitness deputy prosecuting attorney is proper competent evidence for the trial court to consider in ruling on a Knapstad motion.

The State asserts that not only is its affidavit competent evidence at the Knapstad motion, but that anything averred therein must be considered as competent evidence by the trial court in making its Knapstad ruling. We do not agree. A trial court’s Knapstad decision turns on the State’s ability to prove a prima facie case; not on the facts asserted in the State’s affidavit, but on only those facts admissible at trial. CR 56(e) (shall set forth such facts as would be admissible in evidence); Marquis, 130 Wn.2d at 105. The State argues that the statement in O’Mealy’s affidavit, “Ms.

Freigang scared [Iuliano] with a shotgun, and he was scared she was going to shoot him because she mistook him for me” (CP at 60), creates an issue of material fact. And that because the trial court cannot resolve disputed issues of material fact in reviewing a Knapstad motion, denial of Freigang’s Knapstad motion was mandatory. But the State’s argument mistakenly assumes that the prohibition on the trial court’s resolving disputed factual issues precludes it from resolving the legal issue of admissibility of the governing evidence.

In evaluating a Knapstad motion, a trial court cannot treat hearsay as if it were substantive evidence in making a prima facie case determination. Iuliano’s statement to O’Mealy could be evidence establishing a prima facie case but only if it is admissible at trial. CR 56(e). The trial court must first determine whether O’Mealy’s testimony about Iuliano’s statement is admissible before determining whether, as a matter of law, the State can produce evidence sufficient to establish a prima facie case. ER 104.

If, for example, Iuliano’s statements are admissible as excited utterances, they are substantive evidence establishing a prima facie case and the court is required to deny Freigang’s Knapstad motion. If, however, Iuliano’s statements are not admissible, the court must exclude them from consideration in making a determination of whether the State can present sufficient evidence to support a prima facie case. CR 56(e).

The trial court may not weigh the conflicting statements and base its decision on the statement (the report to O’Mealy, 911, and the police, or Iuliano’s recanting testimony and affidavit) it finds the most credible. “Since the [trial] court is not to rule on factual questions, no findings of fact should be entered.” Knapstad, 107 Wn.2d at 357.

We hold that the responsive affidavit of a nonwitness deputy prosecutor is competent evidence in a Knapstad hearing, but the court may consider only admissible evidence referenced in the affidavit to determine whether the State can present a prima facie case for the crime charged. Here, the trial court ruled that because the State’s affidavit was hearsay and because the affidavit was not admissible at trial as substantive evidence, the State had failed to present evidence of a prima facie case sufficient to defeat Freigang’s motion.

But a responsive affidavit is the proper method to present the State’s offer of proof to the trial court. Knapstad, 107 Wn.2d at 356. The trial court erred when it refused to consider the deputy prosecutor’s affidavit on grounds that it was a hearsay document. Instead, it was required to accept the affidavit as an offer of proof and evaluate the admissibility of the evidence outlined therein.

The court also erroneously refused to allow the State the opportunity to present O’Mealy’s affidavit and testimony that, it claims, would have established that Iuliano’s statements to 911, the police, and O’Mealy were excited utterances and substantive evidence sufficient to establish the State’s case. If O’Mealy’s testimony regarding Iuliano’s statements is admissible, a prima facie case of assault is established and denial of Freigang’s Knapstad motion is mandatory.

Knapstad, 107 Wn.2d at 356 (if material factual allegations in the motion are denied or disputed by the State, denial of the motion to dismiss is mandatory). We remand to the trial court for a hearing to determine whether Iuliano’s statements to O’Mealy, 911, and/or the police are admissible at trial. If they are, the trial court must consider them in determining whether the State can establish a prima facie case. If they are not admissible, the trial court must exclude the statements from consideration in its ruling on the Knapstad motion. See CR 56(e). See State v. Lopez, 93 Wn.

App. 619, 622, 970 P.2d 765 (1999) (dismissal of the information is appropriate only if no rational trier of fact could find the elements of the crime beyond a reasonable doubt); State v. Dunn, 82 Wn. App. 122, 126, 916 P.2d 952 (the court looks to the undisputed facts and ascertains whether, as a matter of law, they establish a prima facie showing of guilt), review denied, 130 Wn.2d 1018 (1996). Houghton, J., concurs. State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).

We note that although the witness later provided an affidavit consistent with his testimony at the pretrial hearing, Freigang’s Knapstad motion was not based on a complaining witness’ recanting affidavit. A Knapstad motion, like the State’s prima facie case, must be supported by competent evidence. Hearsay, which is admissible for impeachment purposes only, does not create a material issue of disputed fact. Such evidence is insufficient as a matter of law to support or defeat a motion to dismiss brought under Knapstad, 107 Wn.2d at 356. See Meyer v.

Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98 (1986) (after the moving party submits affidavits, the nonmoving party must set forth specific facts which rebut the moving party’s contentions and disclose the existence of a genuine issue as to a material fact; merely asserting contrary facts in the responding affidavit is insufficient). See also CR 56(e) (after motion for

summary judgment, adverse party may not rest on mere allegation or denials). The State does not appeal this ruling. Although the court invited consideration of a formal rule, to date none has been forthcoming. See Knapstad, 107 Wn.2d at 352-54. “In a sense, this is somewhat similar to

summary judgment proceedings in civil cases, but a dismissal under this rule is not a bar to a subsequent prosecution.” Knapstad, 107 Wn.2d at 355-56 (citing Committee Note, Fla. R. Crim. P. 3.190). “A dismissal and discharge under this procedure is not a bar to a subsequent prosecution for the same offense based on additional evidence.” Knapstad, 107 Wn.2d at 357. “A defendant has no right to appeal a denial of the motion to dismiss. RAP 2.2(a). The State has a right of appeal.

RAP 2.2(b).” Knapstad, 107 Wn.2d at 357. “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” CR 56(e). “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court....” ER 104(a).

A hearsay statement qualifies as an excited utterance and is admissible as substantive evidence if (1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the event or condition. ER 803(a)(2); State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000). We note that whether Iuliano was subjectively afraid of Freigang is not a necessary material element of the crime of assault with a deadly weapon.

If admissible evidence establishes that Freigang was obviously armed and uttered a threat to kill, that evidence alone is sufficient to support the charge of assault with a deadly weapon. See, e.g., State v. Murphy, 7 Wn. App. 505, 511, 500 P.2d 1276 (air pollution control officers confronted by armed landowner yelling threats sufficient to establish second degree assault), review denied, 81 Wn.2d 1008 (1972). “A person is guilty of assault in the second degree if he or she . . . (c) [a] ssaults another with a deadly weapon .. ..” RCW 9A.36.021(1).

Iuliano’s lack of actual fear (because he knew she had mistaken him for O’Mealy or because he did not believe she would shoot) does not negate any of the elements of the crime of assault with a deadly weapon and is not material.