Opinion
No. 51054-1-I.
Filed: April 19, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-00930-8. Judgment or order under review. Date filed: 08/09/2002. Judge signing: Hon. Carol Schapira.
Counsel for Appellant(s), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Frank Shigaihisa Homsher, Attorney at Law, 617 Dayton St. Ste 11, Edmonds, WA 98020.
Jimmie Jones (Appearing Pro Se), Stafford Creek Corrections Center, Doc # 844715 H4-A22, 191 Constantine Way, Aberdeen, WA 98520.
Counsel for Respondent(s), Shaya Calvo, King County Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
The location of the victim's gunshot wound, including the proximity to critical blood veins, may be relevant to the intent to inflict great bodily injury. The trial court did not abuse its discretion by allowing the trauma surgeon to testify that the bullet wound would have been life threatening if angled more toward the center of the victim's abdomen. The judgment and sentence adequately set forth the term of community placement. We affirm.
FACTS
Jimmie Jones was charged with first degree assault after he shot Edward Atwood in the abdomen. Atwood testified that the shooting occurred in a dispute over $40 Jones gave to Atwood to buy marijuana. Arguing self-defense, Jones testified that he suspected that Atwood had taken $40 during a visit to Jones' apartment. Jones later confronted Atwood in a telephone conversation, and Atwood threatened to bring over ten friends to beat up Jones. When Atwood arrived at Jones' front door, he thought Atwood and others were there to beat him up. Jones testified that he believed Atwood had a knife in his hand when he removed his hand from his pocket. From two to three feet away, Jones fired the .40 caliber revolver into Atwood's side in an attempt to stop but not kill him.
The bullet left a wound in Atwood's abdomen. Trauma surgeon Eileen Bolger treated Atwood and testified that the bullet appeared to enter Atwood's body just above the belly button and exited above the iliac crest of Atwood's back. Dr. Bolger testified that Atwood's wound was not life threatening, but over objection answered the prosecutor's question whether the wound in a slightly different location would have produced a greater injury: `Even in the same location and a change of angle more towards the middle would have been life threatening.' The doctor explained that a different angle of 30 degrees could have caused life threatening injury to the major blood vessels in the central abdomen.
DECISION
Relevance of Wound Location. Jones argues that the speculative testimony of Dr. Bolger about the potential life threatening impact if the bullet had taken a different angle through Atwood's abdomen was not relevant under ER 402. To be admissible, evidence must be relevant. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence more probable or less probable than it would be without the evidence. Even if relevant, however, evidence may still be excluded if its probative value is substantially outweighed by the likelihood it will mislead the jury. The trial court has wide discretion in determining whether evidence will mislead the jury and a trial court's determination of relevance and its balancing of probative value against prejudicial effect is reversed only for a manifest abuse of discretion.
ER 402.
ER 401.
ER 403.
State v. Luvene, 127 Wn.2d 690, 707, 903 P.2d 960 (1995); State v. Halstien, 122 Wn.2d 109, 125, 857 P.2d 270 (1993).
A conviction for first degree assault includes assaulting another with a firearm with intent to inflict great bodily harm. The term "great bodily harm" is defined as "bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ". Evidence of intent is to be gathered from all of the circumstances of the case, including the manner and act of inflicting the wound.
State v. Anderson, 72 Wn. App. 453, 458, 864 P.2d 1001 (1994).
The location of Atwood's wound was relevant to the State's theory that Jones shot Atwood with intent to inflict great bodily harm and not just to try to stop Atwood. The trauma surgeon's testimony regarding how close or far the gunshot wound was to critical blood vessels in the central abdomen is a circumstance relevant to the shooter's intent. Jones fails to demonstrate any abuse of discretion.
Adequate Term of Community Custody. Jones also argues that the community custody portion of his judgment and sentence is unnecessarily ambiguous and misleading. The judgment and sentence for 120 months of confinement also provides for community custody of 24 to 48 months, or for the `entire period of earned early release awarded under RCW 9.94A.150, whichever is longer.'
Jones contends that the sentencing court failed to make the required determination of the precise period of community custody, arguing that caselaw establishes two rules for the required level of precision depending upon whether maximum earned early release date exceeds the statutory term of community custody. But precisely this same argument was rejected in the recent decision of State v. Pharris where this court held there is only one rule. `A sentence imposing a period of community custody equal to the statutory range or the period of earned early release awarded, whichever is greater, is sufficiently specific, whether or not the defendant can earn early release that will exceed the statutory range for community custody.' The term of community custody cannot be specified with greater precision because Jones' potential earned early release period is contingent on the amount of early release time actually awarded to Jones and may exceed the 24 to 48 month statutory range.
Wn. App. ___, P.2d ___ (No. 51583-7, slip op. at (Wash.Ct.App. March 22, 2004)) ('There is one rule, and it is a requirement that the judgment and sentence make clear, insofar as circumstances permit, what community custody obligation is imposed. Where the potential earned early release award cannot exceed the statutory community custody period, referencing both may be redundant, but it is not fatally imprecise. There is no ambiguity here comparable to that in Nelson. Rather, as in Mitchell, Pharris's sentence states the possibilities with sufficient specificity to permit determination of the length of community custody without reference to external sources of information other than rules for awarding earned early release.')
Pharris, slip op. at 1.
Other Issues. In his `pro se supplemental brief' Jones raises other arguments that do not support any relief on appeal. Jones does not establish that the scope of the `protective sweep' of his apartment after the shooting was unconstitutionally broad. He does not demonstrate that his trial counsel's failure to bring a motion to suppress was deficient performance. The record does not reveal a speedy trial violation. And he does not establish a discovery violation that warrants dismissal for mismanagement.
See generally State v. Hopkins, 113 Wn. App. 954, 959, 55 P.3d 691 (2002) (upholding a protective sweep incident to arrest to include a cursory visual inspection of places where people may hide).
See State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995) (defendant challenging failure of trial counsel to raise motion to suppress has the burden to show from the record a sufficient basis to rebut the `strong presumption' counsel's representation was effective.)
See State v. Garcia, 45 Wn. App. 132, 140, 724 P.2d 412 (1986) (appellant has the burden of providing an adequate record to review issue).
See State v. Hanna, 123 Wn.2d 704, 715, 871 P.2d 135 (1994) (denial of motion to dismiss for mismanagement in discovery is not a manifest abuse of discretion where defendant fails to demonstrate that he was prejudiced by the late discovery.)
We affirm.
ELLINGTON and KENNEDY, JJ., concur.