Opinion
No. 38499-0-II.
January 26, 2010.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 08-1-00404-2, F. Mark McCauley, J., entered October 27, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Houghton, J.
A jury found Wade T. Hill guilty of second degree assault, contrary to RCW 9A.36.021. The jury also returned a special verdict finding that Hill was armed with a deadly weapon when he committed the offense. Hill appeals his conviction, asserting that the trial court erred (1) by failing to give a unanimity jury instruction and (2) by relieving the State of its burden to prove every element beyond a reasonable doubt by giving two jury instructions with different definitions of a "deadly weapon," one to convict Hill for second degree assault and one for the deadly weapon enhancement. Hill has also filed a statement of additional grounds (SAG). Because the trial court was not required to give a unanimity instruction, the trial court properly informed the jury on the definitions of a "deadly weapon" for purposes of determining guilt and for the special verdict, and Hill's SAG arguments lack merit, we affirm.
RAP 10.10.
FACTS
On August 12, 2008, Sean Brown went to his grandfather's house in Aberdeen, Washington, to dump some garbage. Brown's uncle, Robert Adams, was living at the house and allowed his friend, Hill, to stay with him. When Brown came to the house, he saw Hill smoking marijuana in a garage near the back of the property. Brown asked Hill where his uncle was at and Hill stood up and said he was not there, causing the bag of marijuana to fall on the ground. Brown picked up the bag of marijuana and told Hill, "You're not going to be smoking marijuana here." Report of Proceedings (RP) (Oct. 15, 2008) at 10. After Brown informed Hill that he was going to turn the marijuana over to law enforcement, Hill pulled out a knife and said, "you're going to give me back my fucking weed right now." RP (Oct. 15, 2008) at 11.
Brown's grandfather suffered from Alzheimer's disease and had previously moved from the home; Brown's parents paid property taxes on the house and allowed Adams, who was homeless, to live there.
Brown offered to smoke some of the marijuana with Hill and then picked up a board on the ground to defend himself. After Hill continued to approach Brown with the knife, Brown swung the board towards Hill, ran behind a dumpster, and called 911. Brown ran out to the street to wait for the police and Hill started throwing garden bricks at him. After police officers arrived at the house, Hill placed the knife in his belt and headed through the back yard away from the property. Police officers quickly caught up with Hill and arrested him. The officers found a knife with a four-inch blade in Hill's waistband.
On August 13, 2008, the State charged Hill with second degree assault and alleged that Hill was armed with a deadly weapon during the commission of the crime. A one-day trial began on October 15, 2008. Neither party proposed a unanimity instruction. The trial court gave two jury instructions defining a "deadly weapon":
Deadly weapon means any weapon or instrument which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or substantial bodily harm.
Clerk's Papers (CP) at 20.
For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime.
A person is armed with a deadly weapon if, at the time of the commission of the crime, the weapon is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there was a connection between the weapon and the defendant. The State must also prove beyond a reasonable doubt that there was a connection between the weapon and the crime. In determining whether this connection existed, you should consider the nature of the crime, the type of weapon, and the circumstances under which the weapon was found.
A knife having a blade longer than three inches is a deadly weapon. A deadly weapon is an implement or instrument that has the capacity to inflict death and, from the manner in which it is used, is likely to produce or may easily produce death. Whether a knife having a blade less than three inches long is a deadly weapon is a question of fact that is for you to decide.
CP at 21.
Defense counsel did not object to these jury instructions. The jury returned a verdict finding Hill guilty of second degree assault. The jury also returned a special verdict finding that Hill was armed with a deadly weapon during the commission of the crime. Hill timely appeals his conviction.
ANALYSIS
Unanimity Jury Instruction
For the first time on appeal, Hill asserts that the trial court erred by failing to give a unanimity jury instruction because the State presented evidence that he committed two assaults, one with a knife and the other with garden bricks. The State responds that a unanimity instruction was not required because it only charged Hill with second degree assault for his assault on Brown with a knife, all of the evidence presented focused on the assault with a knife, and "[a]t no point did the State refer to the rocks . . . as deadly weapons." Br. of Resp't at 3. Because the State elected to prosecute Hill for his assault with the knife only, the trial court was not required to give a unanimity instruction which could only have confused the jury by making it appear that the State had charged assault with alternative weapons which it had not.
As an initial matter, Hill did not propose a unanimity instruction at trial. But this court may review for the first time on appeal a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). The right to a unanimous verdict is part of the fundamental constitutional right to a jury trial, and we have reviewed challenges to the absence of such an instruction when made for the first time on appeal. RAP 2.5; State v. Handyside, 42 Wn. App. 412, 415, 711 P.2d 379 (1985); see also In re Det. of Sease, 149 Wn. App. 66, 75, 201 P.3d 1078 (noting that a trial court's failure to give a unanimity instruction is subject to constitutional harmless error analysis but holding that the trial court did not err by failing to give unanimity instruction) (citing State v. Kitchen, 110 Wn.2d 403, 405-06, 756 P.2d 105 (1988)), review denied, 166 Wn.2d 1029 (2009). Accordingly, we review Hill's contention for the first time on appeal.
Criminal defendants in Washington have a right to a unanimous jury verdict. Wash. Const. art. 1, § 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). Where the State alleges multiple acts resulting in a single charge, either it must elect which act it is relying on as the basis for the charge or the trial court must instruct the jurors that they must unanimously agree that the State proved a single act beyond a reasonable doubt. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). If the State fails to follow one of the alternatives, it commits a constitutional error stemming from the possibility that some jurors may have relied on one act or incident while other jurors may have relied on another, resulting in a lack of unanimity on all of the elements necessary for a valid conviction. Kitchen, 110 Wn.2d at 411.
Although the State presented evidence of Hill's assault on Brown, both with a knife and with garden bricks, the State clearly charged Hill only for his assault with the knife and the trial court did not err by failing to give a unanimity instruction. See State v. Coleman, 159 Wn.2d 509, 511, 150 P.3d 1126 (2007) ("[w]hen the prosecution presents evidence of multiple acts of like misconduct, any one of which could form the basis of a count charged, either the State must elect which of such acts is relied upon for a conviction or the court must instruct the jury to agree on a specific criminal act.") (emphasis added). Here, the information clearly charged Hill with second degree assault only for his conduct with the knife:
[The State], by this Information [does] accuse the defendant of the crime of ASSAULT IN THE SECOND DEGREE, committed as follows:
That the said defendant, Wade T. Hill, . . . did intentionally assault another person, to wit: Sean A. Brown, with a deadly weapon, to wit: a fixed blade black handled knife;
CONTRARY TO RCW 9A.36.021(1)(c) and against the peace and dignity of the State of Washington.
CP at 1.
Hill acknowledges that the charging document mentioned only the assault with a knife but argues that a unanimity instruction was nonetheless required because the State addressed both Hill's assault with the knife and with the garden bricks at closing. Although the State referred to the rock-throwing incident as an "assault" in its closing argument, reading the entire closing argument as a whole and in context, it is clear that the State was only prosecuting Hill for his assault with the knife. Here, the State asserted at closing:
But then it turns violent and that is what the defendant is charged with. He pulled out a knife. He pulled out a kitchen knife from his belt and attacked Sean Brown. Now he gets charged with assault in the second degree.
[Discusses the legal definition of assault.] The pulling out a knife, I'm going to hurt you, if you've got a knife I'm ready willing and capable of cutting you. That's what they're talking about. You find that in his position at that moment when Mr. Hill pulled out that knife he was reasonably in fear that Mr. Hill might use, that that's what the instruction says. That is an assault.
. . . Pulling out the knife, you know, give me back my marijuana, that is the assault by this definition in Instruction 8.
And clearly it's a deadly weapon. Deadly weapon is any weapon readily capable of causing death or substantial bodily harm. Something that can cut you, caused you to believe is — can cause substantial bodily harm. This is a four-inch kitchen knife. [State continues to discuss the knife as a deadly weapon.]
RP(Oct. 15, 2008) at 53-54. After the extensive discussion about the knife as a deadly weapon, the State referenced Hill's conduct in throwing the garden bricks.
The officer . . . testified that based on what he saw at that moment he believed that the person he apprehended was the same person that he saw throwing the rocks.
And then what's with all of the throwing the rock stuff? Why is he throwing rocks at this person when — when he pulls — pulls up? That's an assault. He's trying to hurt him. And why does he run? Because he knows he's guilty. Flight is the ultimate indication of one's knowledge of guilt.
RP (Oct. 15, 2008) at 56. Although the State, at closing, briefly mentions that the rock-throwing incident constituted an "assault," it did not refer to the rocks as deadly weapons. And the jury instructions clearly state that in order for the jury to convict Hill, it must have found "[t]he assault was committed with a deadly weapon." CP at 19. Here, the State charged Hill for assaulting the victim with a knife only, the focus at trial was on Hill's assault with the knife, and the State's closing argument clearly indicated it was prosecuting Hill for assault with the knife. Notwithstanding its brief reference to Hill throwing bricks, the State clearly elected to prosecute Hill for assault with the knife. Accordingly, we hold that a unanimity instruction in addition to that contained in jury instruction 1 would not be appropriate. Jury Instruction Nos. 6 and 13
Next, Hill asserts that the trial court erred by giving jury instructions with two different definitions of a "deadly weapon," one to convict Hill for second degree assault and one for a deadly weapon sentencing enhancement, without adequately informing the jury that the definitions did not supplement each other. Although Hill did not object to the instructions or propose a clarifying instruction at trial, he asserts that he can raise the issue for the first time on appeal because the jury instructions relieved the State of its burden to prove each element of second degree assault beyond a reasonable doubt. RAP 2.5(a)(3); State v. Chino, 117 Wn. App. 531, 538, 72 P.3d 256 (2003). Specifically, Hill argues that the jury may have used the definition of a "deadly weapon" in the deadly weapon enhancement instruction, which defines a deadly weapon in part as a "knife having a blade longer than three inches," to convict Hill of second degree assault, which uses a narrower definition of assault. CP at 21. Because the instructions properly informed the jury of the law and held the State to its burden of proof as to both the element and sentence enhancement, there was no error below.
Jury instructions that relieve the State of its burden to prove every element of an offense violate a defendant's due process rights. State v. Randhawa, 133 Wn.2d 67, 76, 941 P.2d 661 (1997) (citing County Court of Ulster County, New York v. Allen, 442 U.S. 140, 156, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979)).
An instructional error is harmless if it appears beyond a reasonable doubt that the error did not contribute to the jury's verdict. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (citing Neder v. United States, 527 U.S. 1, 19, 119 S. Ct 1827, 144 L. Ed. 2d 35 (1999)). In the context of a jury instruction that is missing an element or has misstated an element, the error is harmless if that element is supported by uncontroverted evidence. Brown, 147 Wn.2d at 341 (citing Neder, 527 U.S. at 18).
To convict Hill of second degree assault, the State was required to prove that he assaulted his victim with a deadly weapon. RCW 9A.36.021(1)(c). RCW 9A.04.110(6) provides that for purposes of the second degree assault statute,
"[d]eadly weapon" means any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance . . . which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.
The trial court instructed the jury on the deadly weapon element in jury instruction 13.
In contrast, the definition of a "deadly weapon" for purposes of a sentencing enhancement includes "any knife having a blade longer than three inches." Former RCW 9.94A.602 (1983). Thus, the jury needed only to find that Hill was armed with a knife with a blade longer than three inches during the commission of the crime to find the sentencing enhancement beyond a reasonable doubt, but to find Hill guilty of second degree assault with a deadly weapon, the jury was required to find that the manner in which Hill used, attempted to use, or threatened to use the knife made it capable of causing death or substantial bodily harm.
Hill does not contend that the challenged jury instructions, when read separately, do not adequately state the law. Instead, he argues that the trial court should have clarified that the second definition of a "deadly weapon" applied only to the special verdict and could not be used to convict him of second degree assault. But the jury instructions made this legal distinction clear and no further clarification was required.
Here, jury instruction number 13 begins, " [f]or purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime" before defining a deadly weapon as a "knife having a blade longer than three inches." CP at 21 (emphasis added). Thus, jury instruction number 13 clearly states that its definition of a deadly weapon applies only to the special verdict. And we presume that a jury follows the trial court's instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). Moreover, we have approved the use of nearly identical instructions in State v. Winings, 126 Wn. App. 75, 90-91, 107 P.3d 141 (2005).
In Winings, the defendant argued that by including two definitions of a deadly weapon nearly identical to the challenged instructions here, the trial court effectively commented on the evidence by suggesting that a sword brandished by the defendant was a deadly weapon per se, regardless of its use. 126 Wn. App. at 90. We rejected Winings's argument, stating:
The instruction explicitly states "[f]or purposes of a special verdict[,] the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of commission of the crime. A deadly weapon . . . is . . . any knife having a blade longer than three inches." . . . Nothing in the language of these instructions suggests that the jury should find that the sword was a deadly weapon per se for purposes of determining guilt. Rather, these instructions correctly state the law and informed the jury that it should find that the sword was a deadly weapon per se only for "purposes of [its] special verdict."
Winings, 126 Wn. App. at 91 (some alterations in original).
Similarly, here, the challenged jury instructions correctly state the law and did not relieve the State of its burden to prove every element of second degree assault beyond a reasonable doubt. Accordingly, the trial court did not err in giving these jury instructions and we affirm. Statement of Additional Grounds
Hill has filed a pro se SAG containing 68 statements of alleged errors below for this court's review. To the extent that Hill's SAG arguments are discernable, they are without merit.
A number of Hill's SAG arguments relate to a lack of evidence that he possessed marijuana. For example, Hill argues that the State did not fingerprint the bag of marijuana or require him to take a urinalysis to determine whether he smoked the marijuana. But this appeal relates only to Hill's second degree assault conviction. And to the extent that Hill is arguing that sufficient evidence does not support his conviction, his claim is without merit.
A number of Hill's SAG arguments also relate to the State's supposed lack of evidence that he committed the assault. For example, Hill argues that the State did not test the garden bricks for deoxyribonucleic acid (DNA), that no one picked him out of a lineup, and that the officers could not state what clothes he was wearing when they saw him at the scene shortly before he fled. To the extent that these arguments relate to the sufficiency of the evidence, they are addressed herein.
Sufficiency of the evidence is a question of constitutional magnitude that a defendant can raise for the first time on appeal. State v. Alvarez, 128 Wn.2d 1, 13, 904 P.2d 754 (1995). In determining whether sufficient evidence supports a conviction, "[t]he standard of review is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt." State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990) (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Circumstantial evidence and direct evidence are equally reliable for purposes of drawing inferences. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact's resolution of conflicting testimony and evaluation of the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)). In other words, credibility determinations are for the trier of fact and are not subject to our review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
To convict Hill of second degree assault, the State had to prove that Hill assaulted his victim with a deadly weapon. RCW 9A.36.021(1)(c). Here, the State presented evidence that Hill pulled out a knife and threatened to use it on Brown if Brown did not return Hill's marijuana. Sufficient evidence supports his conviction.
Next, Hill appears to argue that his counsel was ineffective for not presenting Hill's claim of self-defense and for suggesting to Hill that he not testify. We review an ineffective assistance of counsel claim de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995), review denied, 129 Wn.2d 1012 (1996). To demonstrate ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance resulted in prejudice. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)), cert. denied, 506 U.S. 856 (1992). Moreover, if defense counsel's conduct can be characterized as legitimate trial strategy or tactics, then it cannot constitute ineffective assistance, and there is a strong presumption that counsel has rendered adequate assistance and has made all significant decisions by exercising reasonable professional judgment. Lord, 117 Wn.2d at 883 (citing Strickland, 466 U.S. at 689-90).
Hill also asserts that his defense counsel refused to allow Hill to testify. But the record indicates that Hill initially wanted to testify against the advice of his attorney but changed his mind.
Generally, counsel's decisions regarding whether to recommend to a defendant that he testify is a matter of trial tactics. State v. Shilling, 77 Wn. App. 166, 177, 889 P.2d 948, review denied, 127 Wn.2d 1006 (1995); State v. King, 24 Wn. App. 495, 499, 601 P.2d 982 (1979). Further, the record contains no suggestion of what Hill would have testified to if called as a witness. And in the absence of a showing that Hill's testimony would have furthered his defense, we presume that the attorney's decision to recommend that Hill not testify was tactical. Shilling, 77 Wn. App. at 177. The record here supports that presumption as it indicates that defense counsel discussed the possibility of Hill testifying on multiple occasions but ultimately concluded that it was not an effective trial strategy.
Hill also makes a number of arguments that this court cannot address on direct appeal because they require examination of matters outside the record. See State v. Bugai, 30 Wn. App. 156, 158, 632 P.2d 917, review denied, 96 Wn.2d 1023 (1981). Hill's remaining contentions are either not relevant to this appeal or are not sufficiently developed to allow review, and we do not reach them. Although Hill is not required to cite to the record or authority in his SAG, he still must "inform the court of the nature and occurrence of [the] alleged errors." RAP 10.10(c).
For example, Hill asserts that his defense counsel made filing errors.
For example, Hill asserts that his corrections officer is "drunk" and is "illegally [throwing] garbage away." SAG at 1.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and VAN DEREN, C.J., concur.