Opinion
No. 37012-3-II.
October 28, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-03281-1, Ronald E. Culpepper, J., entered November 21, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Armstrong and Hunt, JJ.
UNPUBLISHED OPINION.
Steven Mahoney appeals his conviction of second degree assault and felony harassment. Each charge includes a firearm enhancement. The charges arose from an altercation in which he fired a weapon and made a death threat. He appeals, arguing (1) insufficient evidence supports his convictions and (2) prosecutorial misconduct denied him a fair trial. We affirm.
FACTS
On June 20, 2007, Mahoney was with friends on Jackson Lake's public beach and swam in the lake. He began yelling profanities, which made Jessica Hawkins, who was paddling a canoe on the lake, uncomfortable. She paddled back to her and her fianc's, Clinton Wyatt, lakefront property, where he was mowing the lawn. Wyatt stopped mowing and watched Mahoney swim toward his house in pursuit of Hawkins. Mahoney yelled profanities, challenged Wyatt to a fight, and entered Hawkins and Wyatt's property.
Wyatt began to panic when he estimated that Mahoney was "just under 300 pounds" and "a lot bigger" than me. 2 Report of Proceedings (RP) at 142. He immediately kicked Mahoney in the chest, causing Mahoney to stagger. Mahoney, nevertheless, continued to approach, trying to grab Wyatt's legs. Wyatt punched Mahoney repeatedly until Mahoney backed off. Out of breath and bleeding from a cut on his face, Mahoney retreated to the dock and sat down and rested.
Wyatt told Mahoney to leave. Concerned that Mahoney might not be able to complete the swim back to the public beach, Wyatt offered to take him in his family's canoe. Mahoney declined, swam back on his own, and yelled, "`I'm a Hell's Angel and I'll be back.'" 2 RP at 147.
Wyatt wanted to resolve the situation and to ensure that Mahoney swam safely across the lake, he followed Mahoney in his canoe. Mahoney exited the water. Reunited with his two friends, Mahoney ordered one of his friends to get a gun. Meanwhile, Mahoney drank a beer and appeared calm to Wyatt. Wyatt approached, apologizing: "`I'm sorry any of this ever happened. This should not have happened. I'm just trying to protect my family.'" 2 RP at 153.
Mahoney's friend returned with a knife and a gun. Mahoney became angry and Wyatt reiterated, "`I just want this to be over right now.'" 2 RP at 154. Taking the gun, Mahoney replied, "`It will be over right there.'" 2 RP at 155. Wyatt assumed a defensive posture and then returned to his canoe. Mahoney pushed the canoe into the water and yelled, "`If you come around me again, I'll kill you.'" 2 RP at 157.
Wyatt back paddled away from the island, facing Mahoney, so that he could react if Mahoney decided to shoot at him. Once out of gunshot range, Wyatt turned the canoe toward his house. Wyatt then heard a gunshot; heard Mahoney yell, "The next one will be between your eyes"; and saw Mahoney waiving the gun in his direction. 2 RP at 157. Terrance Sullivan, a lakefront property owner who observed the altercation, testified to seeing Mahoney point the gun directly at Wyatt and fire.
Sheriff's deputies contacted Mahoney later the same day. The deputies arrested Mahoney; retrieved his gun; and transported him to a hospital emergency room, where he received stitches for the cut on his face. By third amended information, the State charged Mahoney with second degree assault with a deadly weapon, felony harassment with a deadly weapon, and two counts of misdemeanor harassment.
At trial, Mahoney testified and admitted to (1) pointing the gun at Wyatt to induce him to return to his canoe and leave the public beach; (2) firing the gun into the ground when Wyatt was paddling on the water; and (3) yelling at Wyatt, "`Go away or the next one's coming at you.'" 3 RP at 245. Wyatt testified that he feared for his life, especially because Mahoney knew where he and his family lived.
Mahoney requested that the jury be instructed on self-defense. The trial court instructed the jury on self-defense and Mahoney did not object to the instructions. The jury found Mahoney guilty of second degree assault and felony harassment with firearm enhancements on both charges. He appeals.
The trial court dismissed one count of misdemeanor harassment, and the jury found Mahoney not guilty of the remaining harassment charge.
ANALYSIS Sufficiency of the Evidence
Mahoney first contends that insufficient evidence supports his convictions of second degree assault and felony harassment. He asserts that (1) the State failed to disprove beyond a reasonable doubt that he acted in self-defense and (2) the State failed to prove that Wyatt feared Mahoney was going to carry out the specific threat to kill him.
RCW 9A.36.021(1) provides: "A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . (c) Assaults another with a deadly weapon."
RCW 9A.46.020(1) defines harassment as occurring when "[a] person . . . (a) Without lawful authority . . . knowingly threatens (i) To cause bodily injury immediately or in the future to the person threatened or to any other person." RCW 9A.46.020(2)(b) provides: "A person who harasses another is guilty of a class C felony if . . . (ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened."
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). An appellant's claim of insufficient evidence admits the truth of the State's evidence and all reasonable inferences drawn therefrom. Thomas, 150 Wn.2d at 874. We consider circumstantial and direct evidence equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the fact finder regarding conflicting testimony, credibility of witnesses, and persuasiveness of evidence. Thomas, 150 Wn.2d at 874-75.
Second Degree Assault
To raise a claim of self-defense, Mahoney must first offer credible evidence tending to prove self-defense. State v. Graves, 97 Wn. App. 55, 61, 982 P.2d 627 (1999). He needed to "produce evidence showing . . . a good faith belief in the necessity of force and that that belief was objectively reasonable." Graves, 97 Wn. App. at 62. The use of force is lawful "[w]henever used by a party about to be injured . . . in preventing or attempting to prevent an offense against his or her person . . . in case the force is not more than is necessary." RCW 9A.16.020(3). "`Necessary' means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended." RCW 9A.16.010(1). "[T]he degree of force used in self-defense is limited to what a reasonably prudent person would find necessary under the conditions as they appeared to the defendant." State v. Walden, 131 Wn.2d 469, 474, 932 P.2d 1237 (1997).
Under these definitions, sufficient evidence supported the conviction of second degree assault. Whether Mahoney acted in self-defense depends on whether he acted in response to an offense against his person and whether he used only as much force as necessary in response. A review of the record reveals sufficient evidence showing that he did not act in self-defense.
The record reflects that (1) Mahoney, much larger than Wyatt, challenged Wyatt to a fight, thus showing that Mahoney did not physically fear Wyatt; (2) after the altercation on Wyatt's property, Mahoney rested on Wyatt's dock and then swam across the lake while Wyatt followed in his canoe, thus showing that Mahoney did not perceive Wyatt as a threat to his life; (3) on the public beach, Mahoney reunited with his acquaintances and outnumbered Wyatt three to one; (4) Wyatt apologized to Mahoney and asked to end the dispute; (5) Mahoney retrieved a gun; (6) he threatened to kill Wyatt; (7) Mahoney pointed the gun at Wyatt; (8) Mahoney fired the gun; and (9) Mahoney again threatened to kill Wyatt while waving the gun at him. Mahoney's sufficiency argument on second degree assault fails.
Felony Harassment
In order to establish felony harassment, the State had to prove that Mahoney threatened to kill Wyatt, either immediately or in the future and, by words or conduct, placed Wyatt in reasonable fear that he would carry out the threat. RCW 9A.46.020(1)(a)(i), (2)(b)(ii). Harassment does not require that the victim fear immediate harm. State v. Alvarez, 74 Wn. App 250, 262, 872 P.2d 1123 (1994).
Sufficient evidence supported the conviction of felony harassment. The record shows that (1) when departing from Wyatt's property, Mahoney threatened that he would be back; (2) as Wyatt departed from the public beach, Mahoney threatened to kill him; (3) Mahoney pointed the gun at Wyatt; (4) Mahoney fired the gun; (5) Mahoney waived the gun at Wyatt, while yelling to him that the next shot would kill him; (5) Wyatt feared that Mahoney might carry out the threat at a later time, especially since Mahoney knew where Wyatt lived and promised to return. Mahoney's sufficiency argument on felony harassment likewise fails.
Prosecutorial Misconduct
Mahoney next contends that the prosecutor committed misconduct by expressing his personal opinion during closing arguments. He asserts that the State's action denied him a fair trial.
We review prosecutorial misconduct to determine whether improper conduct prejudiced the defendant. State v. Thomas, 142 Wn. App. 589, 593, 174 P.3d 1264 (2008). Prejudice occurs where there is a substantial likelihood that the misconduct affected the jury's verdict. Thomas, 142 Wn.2d at 593. We measure possible prejudice by weighing the strength of the State's case and reverse only if there is a substantial likelihood that the misconduct affected the jury's verdict. State v. Avendano-Lopez, 79 Wn. App. 706, 712, 904 P.2d 324 (1995). Finally, where a defendant fails to object, he waives the issue unless the misconduct was so flagrant or ill-intentioned that it caused prejudice that could not be cured by the trial court's admonishment. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
Mahoney argues that the prosecutor committed misconduct during his closing argument by stating, "So maybe he believed he was about to be injured. I don't think he did. I would submit to you that he did not believe he was about to be injured, so I would say no." 4 RP at 343. Relying on State v. Powell, Mahoney contends that the prosecutor's statements could not be cured by a curative instruction. 62 Wn. App. 914, 816 P.2d 86 (1991).
Mahoney did not object to these statements during the trial and has waived them on appeal. On appeal, he argues that they were flagrant and intentional personal opinions about the most critical issue of the case: whether Mahoney reasonably feared for his safety. We disagree that the statements were so flagrant or ill-intentioned that they could not have been cured. Mahoney's argument fails.
Affirmed.
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.
ARMSTRONG, J. and HUNT, J., concur.