Opinion
No. 24531-4-III.
December 5, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-01603-8, Robert D. Austin, J., entered September 19, 2005.
Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, Spokane, WA, 99201-2018.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, Spokane, WA, 99260-2043.
Andrew J. Metts III, Spokane County Pros Offc, Spokane, WA, 99260-0270.
Authored by KENNETH H. KATO, Concurring: TERESA C. KULIK, DENNIS J. SWEENEY.
UNPUBLISHED OPINION
Affirmed by unpublished opinion per Kato, J., concurred in by Sweeney, C.J., and Kulik, J.
Richard Atkinson ran over his estranged wife, Andrea Atkinson, several times in front of their children. She died from her injuries. Mr. Atkinson was charged and convicted of first degree murder, three counts of second degree assault, and one count of reckless endangerment. The court imposed an exceptional sentence. Claiming the evidence did not support his convictions and the court abused its discretion by not imposing an exceptional sentence downward, he appeals. We affirm.
Mr. and Ms. Atkinson were married on April 7, 2002. They had three children together, I.A., N.A. and D.A. On February 26, 2004, Ms. Atkinson filed for divorce.
On April 12, Ms. Atkinson and the children went to visit her friend, Sandra Abel. She and her children stayed at Ms. Abel's home for 30 minutes and then left in Ms. Atkinson's blue Plymouth Voyager van.
Mr. Atkinson and his daughter from a previous relationship, W.A., were in his white Chevy Astro van when they saw Ms. Atkinson's van. Both cars began speeding down the street. Ms. Atkinson was in front of him. Mr. Atkinson hit her van from the rear three times. Ms. Atkinson veered off the street and onto a side street. She went over a fire hydrant and stopped against a sidewalk. Mr. Atkinson drove past Ms. Atkinson's van, turned around, and ran into her van again.
Ms. Atkinson and her children got out of the van and ran through a fence into a neighboring yard. She had one child in her arms. The other two children were running in front of her. Mr. Atkinson drove his van through the fence and into the yard. Ms. Atkinson pushed the two children out of the way and threw the child she had in her arms. Mr. Atkinson then hit her with his van. Ms. Atkinson fell to the ground. He reversed his van and ran over her two more times.
Ms. Atkinson died of a crushed chest. Her shoulder blades, numerous ribs, and vertebrae were fractured. Ms. Atkinson's right lung was amputated from the trachea. She had a collapsed left lung. Ms. Atkinson had numerous abrasions and what appeared to be a tire mark across her right breast.
Mr. Atkinson was charged with one count of first degree murder, three counts of second degree assault relating to D.A., I.A. and N.A, and one count of reckless endangerment relating to W.A. The case proceeded to bench trial.
Brian Chevillet testified that he saw Mr. Atkinson's van come to a rest after hitting Ms. Atkinson three times. Mr. Chevillet said Mr. Atkinson got out of the van and started to run. Mr. Chevillet and several other witnesses chased him. They tackled Mr. Atkinson. While Mr. Chevillet had him pinned to the ground, Mr. Atkinson said in a normal tone of voice, "Is she dead yet? Is she dead yet?" Report of Proceedings (RP) at 204.
Viktor Lavrov testified that he was in his kitchen when he heard a braking sound. He looked out the window and saw Ms. Atkinson's van in front of his house. He went to the front door and saw Ms. Atkinson and her children running toward him. While she was running, Mr. Atkinson drove his van through Mr. Lavrov's fence. After Mr. Atkinson hit Ms. Atkinson, he got out of his van and approached her. Mr. Atkinson grabbed Ms. Atkinson with both hands and shook her. He then let her go in an "uncaring manner" and got back into his van. RP at 317.
Police Officer Lynnette Longshore testified that when she arrived at the scene, she ran through the yard to where Ms. Atkinson was lying on the ground. Officer Longshore said the paramedics were with Ms. Atkinson. The children, sitting nearby, were hysterical. They were crying, screaming, and shaking. A few minutes after the paramedics left with Ms. Atkinson, W.A. approached Officer Longshore. Hysterical, W.A. told Officer Longshore that she was in the van with her father. She said he followed Ms. Atkinson from Ms. Abel's house. Mr. Atkinson collided with Ms. Atkinson's van several times and then proceeded to run her over a couple of times. W.A. told the officer that Mr. Atkinson had asked her several times in the last few days if she would forgive him if he killed Ms. Atkinson.
Mr. Atkinson relied on a diminished capacity defense. Dr. Henry Montgomery, a psychologist, diagnosed him as suffering from major depression and post-traumatic stress disorder (PTSD). Dr. Montgomery testified that based on his diagnosis, Mr. Atkinson was unable to form the intent to kill Ms. Atkinson.
In rebuttal, the State called Dr. William Fredrickson, also a psychologist. Dr. Frederickson testified that he reviewed the tests administered on Mr. Atkinson by Dr. Montgomery. Dr. Fredrickson believed Mr. Atkinson was suffering from a long-standing personality disorder, not a significant mental disorder, disease, or defect. Dr. Fredrickson also believed Mr. Atkinson was not suffering from "full-blown" PTSD. RP at 550. Dr. Fredrickson opined that Mr. Atkinson had the capacity to premeditate and form the intent to kill Ms. Atkinson.
The court found Mr. Atkinson guilty as charged. At sentencing, defense counsel asked the court to impose an exceptional sentence downward. The court denied this request and imposed an exceptional sentence upward based on aggravating circumstances. This appeal follows.
Mr. Atkinson contends the evidence was insufficient to support his conviction because the State failed to show he acted with premeditated intent. When reviewing a claim of insufficiency of the evidence of premeditation, we review the facts presented at trial drawing all reasonable inferences from those facts in favor of the State and interpreting the evidence most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993). We defer to the jury on the credibility of witnesses and the persuasiveness of the evidence. State v. Bonisisio, 92 Wn. App. 783, 794, 964 P.2d 1222 (1998), review denied, 137 Wn.2d 1024 (1999). Our inquiry must include whether any rational trier of fact could have found the elements of premeditation beyond a reasonable doubt. State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995).
Under RCW 9A.32.020, "the premeditation required in order to support a conviction of the crime of murder in the first degree must involve more than a moment in point of time." Premeditation is "`the deliberate formation of and reflection upon the intent to take a human life.'" Gentry, 125 Wn.2d at 597 (quoting State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284 (1982)). It is "`the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.'" Gentry, 125 Wn.2d at 597-98 (quoting State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987)).
Premeditation may be proved by circumstantial evidence, such as the existence of a motive or the use of a weapon. State v. Clark, 143 Wn.2d 731, 769, 24 P.3d 1006 (citing Gentry, 125 Wn.2d at 599), cert. denied, 534 U.S. 1000 (2001). An inference of premeditation can be established by a wide range of proven facts. State v. Finch, 137 Wn.2d 792, 831, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). "Motive, procurement of a weapon, stealth, and method of killing" are factors relevant to establishing premeditation. State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). Multiple blows are strong evidence of premeditation. State v. Cross, 156 Wn.2d 580, 132 P.3d 80 (2006), cert. denied, 2006 LEXIS 8433.
Mr. Atkinson saw Ms. Atkinson in her van and followed her. He then hit the back of her van several times. When she veered off the road, he turned around and hit the van again. When Ms. Atkinson ran from the van, Mr. Atkinson drove his van into the yard and ran over her three times. Mr. Chevillet also testified that upon tackling Mr. Atkinson, he asked, "Is she dead yet?" RP at 204. This is evidence of premeditated intent.
Additionally, W.A. told Officer Longshore that Mr. Atkinson had asked her if she would forgive him if he killed her mother. W.A. also told the officer that she and Mr. Atkinson would drive around looking for her. She said they had done that on the day of the accident. They saw her van at Ms. Abel's and waited for her to leave. Mr. Atkinson argues W.A. denied making the statements attributed to her. In an insufficiency claim, however, the defendant admits the truth of all the State's evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). From this evidence, a rational trier of fact could find evidence of premeditated intent beyond a reasonable doubt.
Mr. Atkinson further argues the court erred by rejecting his diminished capacity defense. Dr. Montgomery testified Mr. Atkinson was unable to premeditate that evening; Dr. Fredrickson testified to the contrary. This is a credibility determination and the trier of fact was entitled to believe the State's witnesses rather than the defense witnesses. Bonisisio, 92 Wn. App. at 794; see also State v. Putzell, 40 Wn.2d 174, 179, 242 P.2d 180 (1952); State v. Skinner, 1 Wn. App. 493, 500, 463 P.2d 193 (1969) (a jury is not bound by unanimous expert testimony that a defendant lacked capacity to commit the crime because of insanity; the ultimate decision regarding the sanity of a defendant is the responsibility of the jury after considering all the evidence and the law as given by the court).
Mr. Atkinson claims the court erred by disregarding Colleen Dea's testimony. Ms. Dea was the nursing supervisor at the jail. She gave Mr. Atkinson the medications prescribed to him. She neither gave any medical diagnosis nor testified about his ability to form premeditated intent. No one disputed Mr. Atkinson was taking medications. The issue was whether he was able to form premeditated intent. The court found that he could and he did. The evidence supports this finding.
Mr. Atkinson contends the court erred by refusing to impose an exceptional sentence downward based upon his diminished capacity defense. When a trial court has denied a defendant's request for a sentence below the standard range, review is limited to circumstances where the court has refused to exercise discretion at all or has relied on an impermissible basis for refusing to impose an exceptional sentence below the standard range. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998). A court refuses to exercise its discretion if it refuses categorically to impose an exceptional sentence below the standard range under any circumstances. Id. A court relies on an impermissible basis for declining to impose an exceptional sentence below the standard range if it takes the position, for example, that no drug dealer should get an exceptional sentence down or it refuses to consider the request because of the defendant's race, sex, or religion. Id. But a trial court that has considered the facts and has concluded there is no basis for an exceptional sentence has exercised its discretion. State v. Schloredt, 97 Wn. App. 789, 801, 987 P.2d 647 (1999).
At sentencing, the court indicated it found Mr. Atkinson had intentionally killed his wife. Although acknowledging that alcohol and drugs were a factor in committing the crime, the court reasoned it was not a basis to excuse his conduct. The record shows the court properly exercised its discretion and refused to impose an exceptional sentence downward.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Kato, J.
WE CONCUR:
Sweeney, C.J.
Kulik, J.