Opinion
No. 37440-4-II.
October 20, 2009.
Appeal from the Superior Court, Clallam County, No. 07-1-00183-1, S. Brooke Taylor, J., entered February 22, 2008.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Penoyar, J.; Van Deren, C.J., dissenting.
Tyshon Charles Swain appeals his jury conviction for second degree assault-domestic violence. He asserts instructional error and improper expert witness opinion. We affirm.
Swain was also convicted at the same trial for third degree malicious mischief-domestic violence, but he does not challenge that conviction.
Facts
Swain's girlfriend, Joylena Owen, testified at trial about events that occurred on the evening of March 10, 2007. Owen said that Swain called her to come pick him up because his truck was stuck. When she arrived, the back tires of the truck were in a ditch, and Swain appeared to be intoxicated. Owen asked Swain if he had been drinking, Swain became angry, and the two of them argued about his drinking as he got into her car. Owen said that Swain punched and broke the front window on the passenger's side of her car, and she then hit him because she was angry.
Owen testified that Swain then began choking her and continued until she began to blackout. Owen heard Swain repeating that she was never going to talk again. Owen described how Swain gripped her neck with his hands and squeezed. She could not breathe or talk. Owen struggled against Swain as he choked her; she scratched him, and put her foot on the dashboard trying to push herself into the back seat to get away from Swain, but she could not get away. The couple's two small children and Swain's six-year-old son were seated in the back seat of Owen's car, screaming while Swain choked Owen. The children's cries "sounded like they were in a tunnel" and Owen's vision went black. RP (Feb. 13, 2008) at 72-73. Swain ultimately stopped choking Owen in response to his son's entreaties to stop.
Afterward, Swain told Owen to drive them home, and she did so because she was scared. At home, the two continued to argue and fight into the early morning; and Owen said that Swain scratched her face in retaliation.
After coworkers and family convinced Owen to report the incident, a deputy interviewed Owen and photographed her injuries on March 12, 2007. Owen had scratches on her face, marks near her mouth and on her cheek and lips, a puffy and swollen eyelid and redness in her right eye, marks on her neck, and bruising. The deputy described her voice as scratchy and hoarse.
The State charged Swain with second degree assault against a household member, alleging that he intentionally assaulted Owen and recklessly inflicted substantial bodily harm. The State also charged Swain with third degree malicious mischief against a household member for breaking the window of Owen's car.
Dr. Stanley Garlick testified that he treated Owen on March 12, 2007. Owen's chief complaint was that she had residual pain in her neck and pain when swallowing. She told Dr. Garlick that the injuries were sustained in a choking incident the previous day. Dr. Garlick examined the injuries surrounding Owen's neck and determined that she had experienced a "significant choking injury." RP (Feb. 14, 2008) at 27. He testified that choking usually results in neck injuries, and can stop the flow of blood and oxygen to the brain. He said that a choking victim might lose consciousness and experience darkening of vision, and in response to questions agreed that such a circumstance was "a substantial impairment of bodily function." RP (Feb. 14, 2008) at 28.
In its instructions to the jury, the trial court defined the phrase "[s]ubstantial bodily harm" to mean "bodily injury that involves a temporary but substantial disfigurement, or that causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or that causes a fracture of any bodily part." CP at 37 (instruction 10). The court also defined "reckless," in part by noting that "[r]ecklessness also is established if a person acts intentionally or knowingly." CP at 38 (instruction 11).
During closing argument, the prosecuting attorney relied on Dr. Garlick's testimony, Owen's testimony, and the physical evidence to argue that Swain inflicted substantial bodily harm upon Owen.
During its deliberations, the jury asked to see Dr. Garlick's report. The court responded that the jury had been provided with all of the evidence admitted during the trial. The jury convicted Swain as charged and the trial court imposed a standard range sentence. Swain timely appealed.
Discussion Instructional Error
Swain argues that the instruction defining "recklessness" created a mandatory presumption, misstated the law, misled the jury, and relieved the State of its burden to prove an essential element. Br. of Appellant at 6 (capitalization altered). This is the same argument that we previously rejected in State v. Keend, 140 Wn. App. 858, 166 P.3d 1268 (2007), review denied, 163 Wn.2d 1041 (2008). We adhere to that decision and apply its analysis to the facts of the present case.
We must first determine, however, if Swain waived his right to appeal the alleged instructional error by failing to object at trial. A party is required to object to an erroneous instruction in order to afford the trial court the opportunity to correct the error. CrR 6.15(c); State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988). Failing to object to an instruction may bar review. Scott, 110 Wn.2d at 686. But a party may raise a manifest error of constitutional magnitude for the first time on appeal. RAP 2.5(a)(3). An instruction that omits an element of a crime charged thus relieving the State of its burden of proof is such a constitutional error. Scott, 110 Wn.2d at 688 n. 5.
Here, relying on State v. Goble, 131 Wn. App. 194, 126 P.3d 821 (2005), Swain argues that the trial court's instruction defining recklessness provided a mandatory presumption relieving the State of its burden to prove an element of second degree assault. Accordingly, having couched the alleged error as one relieving the State of its burden of proof, we will address Swain's newly raised argument.
As in Keend, the instruction defining "reckless" in Swain's case mirrored 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.03, at 153 (2d ed. 1994), and stated:
A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and the disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.
Recklessness also is established if a person acts intentionally or knowingly.
CP at 38 (instruction 11) (emphasis added). See also Keend, 140 Wn. App. at 863-64 (citing the same language). The first sentence of this instruction is taken from RCW 9A.08.010(1)(c); the second sentence of this instruction is taken from RCW 9A.08.010(2).
Jury instructions are sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law. State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012 (2005). We review challenged jury instructions de novo, examining the effect of a particular phrase in an instruction by considering the instructions as a whole and reading the challenged portions in the context of all the instructions given. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). In a criminal case, the trial court must instruct the jury that the State has the burden to prove each essential element of the crime beyond a reasonable doubt; and it is reversible error if the instructions relieve the State of that burden. Pirtle, 127 Wn.2d at 656.
As did the defendant in Keend, Swain cites to Goble, arguing that the last sentence of the instruction defining "recklessness" created a mandatory presumption and allowed the jury to convict him if it found that he had acted intentionally. Swain argues that this instruction allowed the jury to presume that he recklessly inflicted substantial bodily harm on the victim if the jury found that he intentionally assaulted the victim. As we held in Keend, this argument is without merit. Keend, 140 Wn. App. at 865.
As we explained in Keend, the Goble case, analyzed a "knowledge" instruction that included the sentence, "[ a]cting knowingly or with knowledge also is established if a person acts intentionally." Goble, 131 Wn. App. at 202; Keend, 140 Wn. App. at 865. In Goble, we held that the instruction was confusing because it potentially allowed the jury to find the defendant guilty of third degree assault against a law enforcement officer if it found that the defendant intentionally assaulted the victim, but without having to find that the defendant knew the victim was a law enforcement officer performing his official duties. Goble, 131 Wn. App. at 202-03. Keend, 140 Wn. App. at 865-66. Thus, the instruction improperly conflated the intent and knowledge elements required under the to-convict instruction into a single element and relieved the State of its burden of proving that the defendant knew the victim's status if the jury found that the assault was intentional. Goble, 131 Wn. App. at 203; Keend, 140 Wn. App. at 866.
But, as Keend explained, "under RCW 9A.36.021(1)(a), a person commits second degree assault if he '[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm.'" Keend, 140 Wn. App. at 866. "This crime is defined by an act (assault) and a result (substantial bodily harm)[, a]nd the mens rea of 'intentionally' relates to the act (assault), while the mens rea of 'recklessly' relates to the result (substantial bodily harm)." Keend, 140 Wn. App. at 866 (citation omitted). Although assault requires the mens rea of intent, assault by battery does not require specific intent to accomplish some further result, such as inflicting substantial bodily harm. Keend, 140 Wn. App. at 866. Common-law assault by battery is an unlawful touching with criminal intent. Keend, 140 Wn. App. at 866-67. In other words, assault by battery simply requires intent to do the physical act constituting assault. Keend, 140 Wn. App. at 867. Thus, under RCW 9A.36.021(1)(a), a defendant could intend to assault another without thereby intending to inflict substantial bodily harm. Keend, 140 Wn. App. at 867.
Also, as in Keend, the "to convict" instruction in this case set forth the elements of the crime separately, as follows:
(1) That on or about the 10th day of March, 2007, the Defendant intentionally assaulted Joylena Owen[];
(2) That the Defendant thereby recklessly inflicted substantial bodily harm on Joylena Owen[]; and
(3) That the acts occurred in the State of Washington.
CP at 34 (instruction 7) (emphasis added). See also Keend, 140 Wn. App. at 867. The trial court also separately defined "intentionally" in instruction number 9 and "reckless" in instruction number 11. CP at 36, 38.
As in Keend, under both the statute and the trial court's instructions, the jury could convict Swain if he intentionally assaulted the victim and one of three results occurred from that unwanted touching: (1) Swain intended to choke Owen (i.e., interrupt the flow of air to her lungs and blood to her brain by squeezing her neck) until she was nearly unconsciousness, (2) Swain knew that by continuing to squeeze Owen's neck, she was likely to black out; or (3) Swain knew and disregarded the risk that Owen would become unconscious if he continued to squeeze her neck. Without including all the substitutes for the definition of "recklessly," the trial court would not have provided for the instance where Swain specifically intended the result of his intentional assault, i.e., choking Owen until she blacked out. Therefore, as in Keend, it was appropriate for the trial court to instruct the jury that a reckless act is established if a person acts intentionally. Keend, 140 Wn. App. at 867-68.
As Swain choked Owen, he repeatedly told her that she was never going to talk again.
Moreover, the jury is presumed to read the trial court's instructions as a whole, in light of all other instructions. State v. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 1061 (1998), cert. denied, 525 U.S. 1157 (1999). Here, the trial court set forth the mental states of the crime separately in the "to convict" instruction and separately defined "intentionally" and "recklessly." And although Swain relies on Goble, it is inapposite. In Goble, we were concerned with a dispute involving the "knowledge" instruction and the defendant's knowledge of the victim's status, i.e., whether the victim was a law enforcement officer. Goble, 131 Wn. App. at 202-03. And we held that the jury could have been confused by the "knowledge" instruction. Goble, 131 Wn. App. at 203. After all, if the jury found that the unwanted touching was intentional, the jury could have presumed that the defendant knew that the victim was a law enforcement officer. Goble, 131 Wn. App. at 203.
But, as in Keend, there was no possibility here that the jury was confused. There was no conflation of the mental states. As a whole, the jury instructions, including the "to convict" instruction and the definition instructions, were clear, accurate, and separately listed. We presume that juries follow all instructions that the trial court gives them. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). There is no possibility that, because the jury found that Swain intended to grab Owen around the neck, it necessarily found that Swain intended to choke her to near unconsciousness. In other words, the second sentence of the "recklessness" instruction did not allow the jury to presume that Swain intended to inflict substantial bodily harm if it found that he intentionally assaulted Owen. Thus, consistent with Keend, we find no error.
Opinion Testimony
Swain contends that Dr. Garlick's opinion testimony improperly invaded the province of the jury by stating that Own suffered substantial bodily harm. We disagree.
Initially, we note that Swain failed to specifically object to Dr. Garlick's testimony on the grounds of improper opinion. Thus, he has failed to preserve this issue for appeal. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007); State v. Avendano-Lopez, 79 Wn. App. 706, 710, 904 P.2d 324 (1995), review denied, 129 Wn.2d 1007 (1996); ER 103(a)(1). Although an improper opinion that deprives the defendant of his right to a jury trial may be raised for the first time on appeal, see Kirkman, 159 Wn.2d at 926-27, the opinion testimony here does not so qualify.
Impermissible opinion testimony regarding the defendant's guilt may be reversible error because such evidence violates the defendant's constitutional right to a jury trial, which includes the independent determination of the facts by the jury. Kirkman, 159 Wn.2d at 927. However, our Supreme Court has explained that admission of witness opinion testimony on an ultimate fact without objection is not automatically reviewable as a manifest constitutional error. Kirkman, 159 Wn.2d at 933, 936-37; RAP 2.5(a)(3). To qualify as such "manifest" error, a witness must make an explicit or almost explicit statement expressing a personal opinion as to the defendant's guilt or veracity, or the veracity of another witness. Kirkman, 159 Wn.2d at 933, 936-37. That is not the case here.
Moreover, it has long been recognized that a qualified expert is competent to express an opinion on a proper subject even though he thereby expresses an opinion on the ultimate fact to be found by the trier of fact. Kirkman, 159 Wn.2d at 929 (citing Gerberg v. Crosby, 52 Wn.2d 792, 795-96, 329 P.2d 184 (1958)). See also ER 704 (testimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact), ER 702 (if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise). The mere fact that the opinion of an expert covers an issue which the jury has to pass upon, does not call for automatic exclusion. Kirkman, 159 Wn.2d at 929. A trial court's decision to admit expert testimony is reviewed for abuse of discretion. Kirkman, 159 Wn.2d at 927.
Dr. Garlick's testimony was not improper. He explained the physiology of how choking would affect the soft tissue of the neck and the respiratory/pulmonary and circulatory systems. He described the progression of events when sufficient pressure is applied to the neck to shut off the airway to the lungs and the blood flow to the brain. He explained that such disruption of the circulatory system could cause a person to lose consciousness within one to two minutes. The State asked Dr. Garlick that if someone is being choked to such an extent that they start to lose consciousness "would it be your opinion then that that would be a substantial impairment of a bodily part or function at the time that happens?" RP (Feb. 14, 2008) at 20. Dr. Garlick replied affirmatively; and when asked why, he explained that such choking that impaired circulation, causing impending loss of consciousness, would amount to impairment of the central nervous system.
Dr. Garlick also described the type of injuries to the neck that would indicate choking. He also testified that upon examining Owen, he assessed "a significant choking injury." RP (Feb. 14, 2008) at 27. Toward the close of Dr. Garlick's direct examination, the following exchange occurred:
[State]: Doctor, you told us that in your opinion, someone who is choked and has their blood shut off, has their air shut off, that would be a substantial impairment of a bodily function, right? Generally?
[Dr. Garlick]: Yes.
[State]: Did you see this with the injury you saw with Ms. Owen? The same thing?
[Dr. Garlick]: Yes.
RP (Feb. 14, 2008) at 28.
Dr. Garlick's testimony did not include the phrase "substantial bodily harm" as Swain contends. Moreover, Dr. Garlick did not impermissibly state an opinion as to the veracity of a witness or the defendant, or state an opinion as to Swain's guilt. Dr. Garlick's testimony regarding the physiological effects of choking, his assessment of Owen's injuries, and his professional opinion regarding those matters was permissible and served its proper function of providing technical assistance to the jury, who then ultimately decided Swain's guilt based on all the testimony and evidence admitted at trial. See ER 702, 704; Kirkman, 159 Wn.2d at 929. Because Swain has not shown that the expert opinion testimony was improper in any fashion, we hold that the trial court did not abuse its discretion in admitting Dr. Garlick's testimony.
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.
Under the facts in this case, I concur in the majority opinion.
PENOYAR, J., concur.
I respectfully dissent on the issue of whether the "recklessness" jury instruction deprived Swain of his due process rights because it relieved the State of its burden to prove all elements of the crime. For the reasons articulated in our recent case, State v. Hayward, No. 377705-II, 2009 WL 2437227 (Wash Ct. App. Oct. 2, 2009), I would reverse Swain's conviction and remand for a new trial using the revised Washington Pattern Jury Instruction 10.03 that more closely follows the statutory language of RCW 9A.08.010(2) and which articulates the necessity for the fact finder to determine whether the defendant acted recklessly to cause substantial bodily harm, i.e., not just acted intentionally to assault Owen. See 11 Washington Pattern Jury Instructions: Criminal at 209 (3d ed. 2008).