court of appeals

SPOKANE – A Ferry County man has won his appeal of a firearm theft conviction before the state Court of Appeals for Division 3.

Shane Robert Malotte won a new trial on the charge of theft of a firearm.

He appealed one of five convictions, contending that the trial court should have given a jury unanimity instruction. The to-convict instruction for theft of a firearm allowed the jury to convict him on the basis of one of three independent acts and the state presented sufficient evidence to convict for only one of the actions, according to his appeal.

The unpublished appeals court decision was filed Oct. 6 and authored by Judge George Fearing, with Kevin Korsmo and Laurel Siddoway concurring.

Malotte, Republic, appealed a May 20, 2019, Ferry County Superior Court decision signed by Judge Jessica T. Reeves.

According to the appeals court decision, the prosecution arose from Malotte’s attack on and alleged theft of a firearm owned by Todd Griffith, Republic.

On Nov. 20, 2018, Griffith purchased a bottle of bourbon whiskey and visited the home of a neighbor, Vera Hamilton, to share the spirits, court records said. Also present were Hamilton’s son, 14, daughter, 17, and Malotte, who was the daughter’s boyfriend, said court records.

Griffith shared the whiskey with Malotte, but the court said it didn’t know whether other liquor was consumed by the two or the others present.

Griffith apparently made an accusation against the boy about a neighbor’s missing money and Hamilton took offense, telling Griffith “to cease the lewd repartee,” said court records. The boy then went upstairs.

Socializing progressed, with Griffith making comments about the girl’s pregnancy. Malotte and Griffith then played a game of body shots, with Malotte eventually complaining that Griffith struck him in the head, court records said.

A knife and brass knuckles were produced by Griffith, then the conversation turned to firearms. Griffith volunteered to allow Malotte and the girl to use his SKS rifle for target shooting, and the three then shot at targets on Hamilton’s land.

“At some unidentified time after target shooting, Todd Griffith’s consciousness grew ‘dark,’” said court records. The boy, about the same time, heard a “poof,” looked outside and saw a white cloud.

He and his mother went outside, and the boy observed “a chaotic scene that included a propane bottle and broken camping torch, which he believed cause the poof” sound, said court records.

Griffith awoke from his fog to sense a man kicking his head and his being struck with his rifle.

Malotte aimed the rifle at Griffith, who tried to stand, but was punched, kicked and yelled at by Malotte, said court records. Law enforcement was called.

The boy, worried that Griffith might die, grabbed Malotte’s arm to attempt to stop him from striking Griffith. Malotte told the boy to leave, which he did.

The struggle continued until sheriff’s deputies arrived, about 10 minutes later, court records said.

According to court records, the girl handed the rifle to Malotte, and the girl, Hamilton and Malotte told the boy to tell deputies he didn’t know Malotte’s name. Malotte then grabbed the gun and ran from the house toward a tree line, said court records.

As he approached the Hamilton home, Deputy Matthew Kersten saw a man running away. He stopped and pursued the man on foot, but then Hamilton, the girl and the boy yelled that Griffith was trying to steal the deputy’s car, said court records.

Kersten also reported hearing gunshots.

He went back to speak with Griffith, whose face was bloody and eyes were swollen shut. He placed Griffith in handcuffs, but did not notice the man attempting to take the vehicle, said court records.

Deputies Talon Venturo and Christine Clark arrived, with Hamilton and her two children telling deputies they did not know the identity of the man – Malotte – who fled, court records said. Griffith also did not tell them the man’s identity. The weapon could not be found.

Malotte returned to Hamilton’s house by early the next morning and stored the rifle in the loft of the home where he slept, court records said. He sometimes carried the rifle, obtained ammunition for it and placed markings on the rifle.

During a search of Hamilton’s home on Nov. 29, 2018, deputies seized the rifle.

Malotte was charged with first-degree assault, theft of a firearm, third-degree possession of stolen property, second-degree unlawful possession of a firearm and possession of a controlled substance other than marijuana.

During trial, Griffith identified the rifle as his, testified that the clip belonged to his gun but that the ammunition in the clip was not his because he used brass ammunition and the clip contained green bullets. He also testified that markings on the rifle were added by someone else, court records said.

Neither party objected to the jury instruction regarding theft of a firearm, and the parties did not propose – and the court did not give – a unanimity instruction for the theft of a firearm charge, said court records.

The jury acquitted Malotte of first-degree assault but convicted him on the lesser included offense of second-degree assault. It found him guilty of the other charged crimes.

Malotte contends the state presented insufficient evidence of two of three alternative means by which theft of a firearm can occur, and that the trial court failed to instruct the jury in a unanimity instruction.

The state argued that sufficient evidence supported all the means, so no such instruction was required.

Appeals judges said the state Constitution guarantees criminal defendants the right to a unanimous jury verdict.

“When a crime had alternative means of commission, and sufficient evidence supports each of the means, a defendant does not have a right to have the jury express unanimity as to the method of commission,” said the appeals court.

“The state presented no evidence that Shane Malotte sought to deceive Todd Griffith or impose a false impression on him,” said the opinion. “The state identifies no information that Malotte sought to conceal from Griffith in order to steal his rifle.

“The state underscores that Shane Malott told (the boy) not to reveal his identity, and then Malotte fled from Deputy Matthew Kersten,” the opinion continued. “The state asserts that the jury could infer that Malott, by inducing (the boy) to conceal his identity, created a false impression. He then used this impression to prevent Todd Griffith from obtaining information related to the firearm.”

Although Malotte convinced the others to say they didn’t know who fled, the connection between that act of deception and taking the rifle “is tenuous,” said court records. The girl “handed Malotte the gun, and he ran. He did not gain possession of the gun by deception of the sheriff deputies, let alone deception of Todd Griffith.”

Malotte may have hidden the rifle and placed marks on it, but he did not do so until after appropriation of the weapon, the court said.

“Because the state failed to provide sufficient evidence to support at least one of the three alternative means of theft announced to the jury, we reverse Shane Malotte(’s) conviction for theft of a firearm. We remand for a new trial on the charge,” said the appeals judges.

Malotte was represented on appeal by Andrea Burkhart of Two Arrows, Kennewick. Counsel for the state was Ferry County Prosecutor Kathryn Isabel Burke.

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