Opinion
No. 40261-1-II
10-18-2011
STATE OF WASHINGTON, Respondent, v. CORY A. SUNDBERG, Appellant.
UNPUBLISHED OPINION
Penoyar, C.J. - Cory A. Sundberg appeals his convictions of second degree assault (domestic violence) and unlawful imprisonment (domestic violence). He challenges the sufficiency of the evidence as to both counts and claims that the prosecutor committed misconduct in closing argument that denied him a fair trial. We reverse in part, affirm in part, and remand for resentencing.
Facts
After a volatile evening, Sundberg agreed to give RM, his girlfriend for the previous eight months, a ride from his home in Grapeview to Belfair. When Sundberg reached the intersection of State Route 106 and Highway 3, he turned right toward Allyn instead of left into Belfair. According to RM, he said to her that he was going to take her back to where he got her from. This remark frightened RM and she started waving her arms out the door, hoping someone would call the police. She continued screaming at the top of her lungs for him to stop the car, but he accelerated the car instead. Once they reached Allyn, he slowed down and she undid her seatbelt and turned toward her open door so she could jump out if he stopped. According to RM, Sundberg did not stop, pushed her from the car, drug her along the side of the car by the seatbelt, and when she finally freed herself, she flew tumbling through the air. She suffered multiple abrasions to her back, legs, head, and arms.
A woman driving behind them at the time described seeing feet six feet in the air before she braked to a stop. She said that the car in front of her never slowed down and the brake lights did not come on. She described RM as crying, shaking, distraught, and very worried about her dog, which was still in Sundberg's car.
Later that day, Sundberg gave a statement to Mason County Sheriff's Detective Jeffrey Rhoades. Sundberg told him that RM was upset about him turning to Allyn and opened the door and said she was going to jump out. When it was safe to do so, he stopped the car, according to his statement, and she got out. He noticed her standing in the middle of the road giving him the finger when he was about 100-150 feet away. Later, Sundberg said that perhaps he had not come to a complete stop and that she might have been tangled up in the seatbelt. At trial, Sundberg testified that he stopped the car, RM got out, and she started kicking the car. At that point, he left, went home, and went to sleep.
The State charged Sundberg with second degree assault (domestic violence), alleging that he intentionally assaulted RM with a deadly weapon: the roadway pavement. It also charged him with unlawful imprisonment (domestic violence). A jury found him guilty of both offenses. The court imposed concurrent standard range sentences of 84 months and 50 months respectively. Sundberg appeals.
A violation of RCW 9A.36.021(1)(c); RCW 10.99.020(5).
A violation of RCW 9A.40.040; RCW 9A.40.010(1); RCW 10.99.020(5).
analysis
I Sufficiency of the Evidence: Second Degree Assault (Domestic Violence)
Sundberg first argues that the State failed to prove that he used the pavement to assault RM, reasoning:
[T]he road does not constitute a deadly weapon in that it was not the road in the circumstances in which it was used that created the risk of death or substantial bodily harm; the road was simply there and [RM] landed on it. There was no deadly weapon involved as what created the potential for death or substantial bodily harm was the fact that [RM] was pushed from a moving car even though she suffered only minor injuries.Appellant's Br. at 9.
Both Sundberg and the State rely on this court's decision in State v. Marohl, 151 Wn. App. 469, 213 P.3d 49 (2009), rev'd, 170 Wn.2d 691, 246 P.3d 177 (2010), in which this court held that a casino floor was an instrument or thing likely to produce harm when the defendant slammed the victim into the floor, dislodging his prosthetic arm and causing significant injuries. Our Supreme Court has subsequently disagreed, holding: "The language of RCW 9A.36.031(1)(d) does not include the casino floor within the meaning of instrument or thing because, under the circumstances of this case, it was not likely to produce harm and it was not used as a weapon." Marohl, 170 Wn.2d at 700. The Supreme Court specifically concluded that a casino floor was unlike a weapon:
Accepting Marohl forced Peterson to the ground, there is no evidence his use of the ground transformed it into an object similar to a weapon.Marohl, 170 Wn.2d at 702-03 (emphasis added).
The issue in this case is whether a floor is an instrument or thing likely to produce harm when the defendant causes the victim to impact the ground. The plain meaning of the statute is unambiguous—under these circumstances, the casino floor was not similar to a weapon, nor was it "likely to produce bodily harm." The casino floor was not within the scope of RCW 9A.36.031(1)(d).
The trial court, here, defined "deadly weapon" as follows: "Deadly weapon means any weapon, device, instrument, substance, or article, 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 39. But under the Supreme Court's rationale in Marohl, the roadway here was clearly not similar to a weapon and the jury's conclusion that it was cannot stand. Marohl, 170 Wn.2d at 703. Because the roadway was not a deadly weapon, the State failed to prove second degree assault, and we reverse that conviction. II. Sufficiency of the Evidence: Unlawful Imprisonment
The State did not argue to the jury that this was a dragging case; rather, it argued that Sundberg pushed RM, causing her to strike the roadway. Thus, it seems unlikely, not reasonably likely, that the jury based its verdict on the dissent's theory that Sundberg dragged RM along the roadway and thereby the manner in which he used the roadway amounted to second degree assault.
Sundberg claims that the State failed to prove that he committed unlawful imprisonment. As instructed, this required the State to prove:
(1) That on or about October 2, 2009, the defendant restrained the movements of [RM] in a manner that substantially interfered with her liberty;CP at 50. He contends that he stopped the car and let her out when she was yelling for him to stop and thus there is no evidence that he "restrain[ed]" her. Appellant's Br. at 13.
(2) That such restraint was
(a) without [RM's] consent or
(b) accomplished by physical force, intimidation, or deception; and
(3) That such restraint was without legal authority;
(4) That, with regard to elements (1), (2), and (3), the defendant acted knowingly; and
(5) That any of these acts occurred in the State of Washington.
When facing a challenge to the sufficiency of the evidence, we ask 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. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), we defer to the trier of fact's resolution of conflicting testimony, evaluation of witness credibility, and decisions regarding the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Here, RM testified that Sundberg turned toward Allyn instead of Belfair, sped up when she yelled at him to stop, she waved her arms frantically so that someone would see her and call 911, and that he finally pushed her from a moving vehicle going 35 miles per hour. This was ample evidence from which a jury could find that he was keeping RM in the car against her will by his manner of driving. III. Prosecutorial Misconduct
Finally, Sundberg argues that prosecutorial misconduct denied him his right to a fair trial. He claims that the following amounted to an improper statement as to the prosecutor's personal beliefs:
Now credibility. I'll touch on this more, but I want to—I want to talk about it while we're here. I guess. You observed all the witnesses testify. That was your job. I saw you guys taking notes. You were doing a good job of that. I know there was—there was quite a few witnesses. You saw [RM] testify. She gave statements at the time of the incident, a number of statements she testified. And those statements and her testimony were consistent with one another, for the most part. There's going to be some inconsistencies in any testimony and statements for a number of reasons. But for the most part, she was consistent. Her story never changed because it was the truth.Report of Proceedings at 359. He claims that this last remark was particularly egregious because this case boiled down to a credibility determination between RM and him.
In making this claim, Sundberg must show (1) misconduct and (2) that it was so flagrant and ill-intentioned that no curative instruction could have obviated the prejudice the misconduct created. State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
The State concedes that the prosecutor made an improper comment but argues that it was a single comment, not repeated, and the trial court had instructed the jury that they were the sole judges of credibility and to disregard any remark or comment from the attorneys that the evidence did not support.
We agree. This was not solely a case of credibility. RM was injured, witnesses saw her fly from the car, and Sundberg neither stopped nor used his brakes. That RM gave consistent stories throughout was something the jury could consider and, in our view, while the prosecutor should have rephrased his explanation of this, it did not so prejudice the jury that it affected the trial's outcome. This coupled with the trial court's instructions, mitigated any potential prejudice. We fail to see this remark as flagrant and ill-intentioned.
Finally, Sundberg filed a statement of additional grounds in which he claims that trial counsel's failure to allow him to fully testify and present witnesses favorable to his defense denied him his right to effective assistance of counsel. We cannot consider matters or evidence outside the record in a direct appeal. RAP 9.2(b); State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 (1995).
RAP 10.10.
We reverse Sundberg's conviction of second degree assault, affirm his conviction of unlawful imprisonment, and remand for resentencing.
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.
Penoyar, C.J.
I concur:
Quinn-Brintnall, J.
Hunt, J. (Dissenting in part, concurring in part) — I concur in most of the majority's opinion, but I respectfully dissent from its holding that the roadway was not a deadly weapon under RCW 9A.04.110(6). I would affirm both Sundberg's unlawful imprisonment and second degree assault convictions.
I. Standard of Review
Sundberg argues, and the majority agrees, that the State did not prove the "deadly weapon" element of his second degree assault conviction. Majority at 3-4. It is well settled that evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). We draw all reasonable inferences from the evidence in the State's favor when testing for sufficient evidence. Salinas, 119 Wn.2d at 201 (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)).
The State bears the burden of proving all elements of a crime. State v. Teal, 152 Wn.2d 333, 337, 96 P.3d 974 (2004). The question we must reach is whether, assuming the truth of the State's evidence, the roadway pavement constituted a "deadly weapon" within the statutory meaning, a legal question, which we review de novo. See State v. McCormack, 117 Wn.2d 141, 143, 812 P.2d 483 (1991).
II. Pavement as a "Deadly Weapon"
Although no Washington case has yet held that pavement can be considered a "deadly weapon" for second degree assault purposes, Washington's statutory definition of "deadly weapon" is sufficiently broad to encompass stationary objects, such as pavement, if the objects are used in a manner readily capable of causing death or substantial bodily harm. See RCW 9A.04.110(6). Since Sundberg used the pavement as an instrument under circumstances likely to cause RM serious bodily injury, I would hold that the pavement used here constitutes a "deadly weapon."
Sundberg concedes that the circumstances of his assault created a "potential for death or substantial bodily injury." Br. of Appellant at 9. Sundberg's only point of contention is that there was no deadly weapon used when Sundberg pushed RM out of a moving car and dragged her along the pavement.
A. RCW 9A.04.110(6), "Deadly Weapon"
RCW 9A.04.110(6) defines "deadly weapon" to include any
weapon, device, instrument, article, or substance, including a "vehicle" as defined in this section, 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.(Emphasis added). "Deadly Weapons" can be per se deadly (i.e., explosives and firearms) or deadly because they are capable of causing death or substantial bodily injury under the circumstances in which they are used. State v. Carlson, 65 Wn. App. 153, 158-59, 828 P.2d 30, review denied, 119 Wn.2d 1022 (1992). Here, because pavement is not per se deadly in the way that a loaded gun is deadly, I focus on the second prong of the "deadly weapon" test, which focuses on the circumstances in which the potentially harmful instrument is used.
Such circumstances include "the intent and present ability of the user, the degree of force, the part of the body to which it was applied and the physical injuries inflicted." State v. Schilling, 77 Wn. App. 166, 171, 889 P.2d 948 (1995) (quoting State v. Sorenson, 6 Wn. App. 269, 273, 492 P.2d 233 (1972)). In this way, any device, instrument, substance, or article can become a "deadly weapon" depending on how it is used; in other words, particular sets of circumstances can turn otherwise non-threatening objects into deadly weapons. See State v. Hoeldt, 139 Wn. App 225, 230, 160 P.3d 55 (2007) (a dog can constitute a "deadly weapon" for second degree assault purposes if trained and used as an instrument of violence and death); State v. Barragan, 102 Wn App. 754, 761-62, 9 P.3d 942 (2000) (a pencil can be considered a "deadly weapon" when used in attempt to stab fellow prison inmate in the eye); Schilling, 77 Wn. App. at 171-72 (a glass was a "deadly weapon" when smashed against the backside of a patron's head). Thus, pavement may be considered a deadly weapon if, under the circumstances in which it is used, including Sundberg's intent in pushing the victim onto the pavement from a moving car, it was likely to cause serious bodily harm to RM.
B. Using Pavement in a Deadly Manner
The majority notes that "[t]he State did not argue to the jury that this was a dragging case; rather, it argued that Sundberg pushed RM, causing her to strike the roadway. Thus, it seems unlikely, not reasonably likely, that the jury based its verdict on the dissent's theory that Sundberg dragged RM along the roadway and thereby the manner in which he used the roadway amounted to second degree assault." Majority at 4, n.3. In my view, whether the defendant dragged RM or caused RM to strike the roadway does not determine whether the pavement constituted a deadly weapon: In both instances, Sunberg would have been using the force and friction of RM's hitting the pavement to subject her to injuries capable of causing death or substantial bodily harm.
Although normally a harmless instrument, pavement can become deadly where, as here, a person is dragged across it at high speeds, creating enough friction to cause serious bodily injury and death. The common definition of "instrument" is "a means whereby something is achieved, performed, or furthered." Webster's Third new Int'l Dictionary at 1172 (2002). Here, Sundberg used the pavement as a "means" to cause enough friction to create the possibility of death or serious bodily injury to RM. Because, as I note above, there are no Washington cases on point, we may look to other states for persuasive examples of affirmed convictions for deaths caused by pavement. See, e.g., State v. Davis, 107 S.W.3d 410 (Mo. App. 2003) (upholding first degree murder conviction of defendant who, while stealing a car, deliberately dragged a six-year-old child four and one-half miles across pavement, causing the child's death); King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000) (affirming capital murder conviction for dragging a victim behind a car for a mile and a half, tearing the victim's body apart and killing him; ruling in part, that dragging a chained man from a moving truck constitutes deadly force).
Davis attempted to steal a family's parked car without realizing that a six-year-old child was still in the back seat. Davis, 107 S.W.3d at 414. As Davis began to drive off, family members observed the carjacking and attempted to open the back doors to free their son. Ibid. Though the family was able to open the door, they could not get the child's seat belt fully undone; and the car thief sped off with the back door open and the child tangled in the seat belt. Ibid. Despite the mother's shouts that Davis was "dragging a child," he sped off toward the highway, dragging the six-year-old alongside the vehicle, "slamm[ing]" the child into concrete medians and causing numerous "cuts and abrasions" from the friction of being dragged along the roadway pavement. Davis, 107 S.W. 3d at 415. The child died from his injuries. Ibid.
In King, white supremacists kidnapped an African-American man and took him to a remote location in rural Texas. King, 29 S.W.3d at 558-61. The kidnappers then used a logging chain to tie the man's ankles to the back of a truck and proceeded to drag him along the road. King, 29 S.W.3d at 559, 562. Being dragged along the pavement for one and one-half miles caused the man to "suffer the most cruel and horrific pain before his body was finally torn apart" as his head, neck, and arm were eventually severed by the intensity of the friction between his body and the road. King, 29 S.W.3d at 562-63. Holding that the dragging constituted "deadly force," the Texas court explained:
Dragging a chained man from a truck also constitutes the use of deadly force . . . . Byrd's injuries reveal not only that he was alive during half of his tortuous journey, but also that he was conscious for most, if not all, of that time—attempting to hold up his head and relieve the pain of the asphalt scraping and tearing his skin.King, 29 S.W.3d at 563.
The King and Davis cases demonstrate how roadway pavement may be used in a manner likely to cause serious bodily harm or death. As the above Texas and Missouri cases illustrate, stationary objects, such as the road and pavement, are "instruments" that are capable of being used as deadly weapons. The record shows that Sundberg intended to use the road's pavement, not his hand, as the "instrument" of his assault: The object of Sundberg's assault was to push RM out of a fast-moving car while she was still tangled in her seatbelt, in a manner eerily similar to the grisly situations in Davis and King. And, in fact, it was the dragging of RM along the pavement that caused her severe bodily injuries.
Although arguably Sundberg had more direct control over his arm than he did over the pavement when he pushed RM out of the vehicle, such fact is not determinative of the issue here. There is no requirement that the defendant actually be in direct control of an instrument for it to be considered a deadly weapon. Instead, the defendant need only "use" the instrument in a manner likely to cause death or serious bodily harm. See Hoeldt, 139 Wn. App. at 230 ("A large, powerful dog that, by training or temperament, attacks a person in this manner when intentionally released or directed to do so by its handler, meets the instrumentality 'as used' definition of deadly weapon"). See also People v. Cephas, 110 Misc.2d 1075, 1076-78 (N.Y. 1981) (sufficient evidence presented to Grand Jury to try defendant for first degree robbery and attempted first degree robbery where defendant may have used train's movement as a "dangerous instrument"—a statutory definition similar to the statutory definition of a "deadly weapon"—when snatching woman's purse and ripping her coat, even though train not within his control). Because a reasonable trier of fact could have found that Sundberg "used" the pavement to cause enough friction to create the possibility of death or serious bodily injury to RM, I would hold that the evidence is sufficient to support a conviction for second degree assault with a deadly weapon.
III. Marohl Distinguished
The majority apparently relies on Marohl, a recent Washington Supreme Court case, to support its conclusion that the pavement used here was not a deadly weapon. Majority at 3-4 (citing State v. Marohl, 170 Wn.2d 691, 246 P.3d 177 (2010)). Marohl addressed whether floors or other stationary objects could constitute "a weapon or other instrument or thing likely to produce bodily harm" for third degree assault purposes. RCW 9A.36.031(1)(d). Marohl, a mixed martial arts fighter, was charged with third degree assault when he put a fellow casino bar patron in a chokehold and subsequently fell with him to the floor, causing the bar patron to suffer multiple cuts and bruises. Marohl, 170 Wn.2d at 694-96. The Marohl court held that the casino floor did not constitute an "instrument or thing likely to produce harm" for purposes of third degree assault under RCW 9A.36.031(1)(d) because the casino floor was not in a class of objects inherently likely to cause bodily injury. Marohl, 170 Wn.2d at 699-700. The Marohl court explained that an "instrument or thing likely to produce bodily harm" under RCW 9A.36.031(1)(d) must be similar to a weapon, such as a sword, gun, or some other object inherently likely to cause harm. See Marohl, 170 Wn.2d at 700.
Because it is a third degree assault case, Marohl is inapplicable and unpersuasive in second degree assault cases: Marohl holds that a floor cannot constitute an "instrument or thing likely to produce harm" for third degree assault purposes, not that a floor cannot be considered a deadly weapon for second degree assault purposes. The Marohl court distinguished its holding from Reed, Montano, and Galvin by emphasizing that the applicable statutes in each of those cases defined "deadly weapon" based on use, whereas RCW 9A.36.031(1)(d) made no reference to how an "instrument or thing likely to produce harm" was used. Marohl, 170 Wn.2d at 701-02. By its plain language, RCW 9A.04.110(6), in contrast, defines "deadly weapon" in terms of the "circumstances in which it is used, attempted to be used, or threatened to be used."
State v. Reed, 101 Or. App. 277, 279, 790 P.2d 551 (1990); State v. Montano, 126 N.M. 609, 610, 973 P.2d 861 (1998); People v. Galvin, 65 N.Y.2d 761, 481 N.E.2d 565 (1985).
Thus, even if a stationary object cannot meet the "instrument or thing likely to produce harm" requirement of third degree assault, because it is not an object inherently likely to cause bodily injury, it may still meet the "deadly weapon" element of second degree assault if it is used in circumstances in which contact with the object would be likely to cause death or substantial bodily harm. Other courts have similarly held that stationary objects, such as the floor or ground, can constitute a "deadly weapon" based on how they are used. See U.S. v. Murphy, 35 F.3d 143 (4th Cir. 1994) (slamming victim's head against steel jail cell bars, under circumstances of use, was a deadly weapon); State v. Montano, 126 N.M. 609, 610, 973 P.2d 861 (1998) (slamming victim's head again a brick wall multiple times, under circumstances of use, was a deadly weapon); People v. Galvin, 65 N.Y.2d 761, 481 N.E.2d 565 (1985) (repeatedly striking victim's head on sidewalk; under circumstances of use, was a deadly weapon); State v. Reed, 101 Or. App. 277, 279, 790 P.2d 551 (1990) (repeatedly slamming victim's head on pavement, under circumstances of use, was a deadly weapon); Hampton v. Com., 34 Va. App 412, 419-20 (2001) (curbs constituted "deadly weapon" when employed as a "device against which [one] bashe[s another's] head," as such a usage "has the potential to inflict death").
I further note that whether a stationary object was a "weapon" or an object inherently likely to cause harm involves a very different determination than whether an instrument can become deadly based on how it is used. See Marohl, 170 Wn.2d at 700 n 3, 246 P.3d 177 (2010) (discussing State v. Houck, 652 So. 2d 359, 360 (Fla. 1995) (pavement was not a weapon—repeatedly striking victim's head on pavement not within dictionary definition of "weapon," when no statutory authority existed defining "weapon")).
As the Oregon Court of Appeals aptly noted in Reed, "'Whether the pitcher hits the stone or the stone hits the pitcher, it will be bad for the pitcher.'" 101 Or. App. at 280 (quoting Cervantes, Don Quixote, Part II, ch 43 (1615)). Similarly, here, I would hold that the jury reasonably could have found that Sundberg was using the pavement as a deadly weapon when he dragged RM from his vehicle at a high speed across the pavement, the friction from which seriously injured her. Accordingly, I would affirm Sundberg's second degree assault conviction.
Hunt, J.