Opinion
No. 21173-8-III.
Filed: February 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Ferry County. Docket No: 02-1-00001-1. Judgment or order under review. Date filed: 06/04/2002.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), James Alan Von Sauer, Ferry County Prosecuting Attorney, 350 East Delaware Ste 11, Republic, WA 99166-0566.
Ralph T. Carr appeals his conviction for first degree assault. He contends the information was defective, the court improperly responded to a jury inquiry, and the evidence was insufficient to convict him. We affirm.
Mr. Carr was charged with assaulting his wife, Janie, on January 7, 2002. At trial, Ms. Carr testified Mr. Carr beat her up, knocking her unconscious and causing her to lose vision in one eye and suffer nerve damage to her leg. On cross examination, Ms. Carr admitted telling paramedics and police after the incident that she had slipped or fallen. A physician's assistant and a doctor testified Ms. Carr's injuries were not consistent with a slip or fall.
A jury found Mr. Carr guilty of first degree assault.
Mr. Carr first contends reversal is required because the trial court failed to arraign him on an amended information. He originally was charged with second degree assault. An amended information charged him with first degree assault, alleging:
That the defendant, RALPH T. CARR, on or about January 7, 2002, did assault Janie Carr and did inflict great bodily harm against her. This occurred in Ferry County, Washington.
Clerk's Papers (CP) at 25. The trial began on May 13, 2002. On May 14, the court granted the State's motion to amend the information again, revising the language to read: `did intentionally inflict great bodily harm against her.' CP at 55 (emphasis added). Defense counsel apparently did not object to the amendment and approved the court's order `as to form.' CP at 54. The court instructed the jury that the crime of assault requires intent. The jury returned its verdict on May 14.
A trial court may allow amendment of an information `at any time before verdict or finding if substantial rights of the defendant are not prejudiced.' CrR 2.1(d). Mr. Carr apparently concedes the second amended information was properly filed before the verdict, but he correctly points out he was never arraigned on the amended information as required by CrR 4.1.
Failure to arraign a defendant on an amended information is a due process violation when it `results in failure to give the accused and his counsel sufficient notice and adequate opportunity to defend.' State v. Alferez, 37 Wn. App. 508, 516, 681 P.2d 859, review denied, 102 Wn.2d 1003 (1984). The defendant bears the burden of establishing such prejudice. State v. Royster, 43 Wn. App. 613, 619-20, 719 P.2d 149 (1986).
Here, Mr. Carr has failed to demonstrate how he was prejudiced by the failure to arraign him on the second amended information. The jury was properly instructed that intent is an element of the crime, and defense counsel did not object to that instruction. In the absence of prejudice, reversal is not required.
Mr. Carr next contends reversal is required because of the trial court's answer to a jury inquiry. During deliberations, the jury sent the following message to the court: `We have (1) person who says they can not say he is guilty [] will not change.' CP at 75.
The court contacted both the prosecutor and defense counsel, who agreed on a response to the jury. The court then instructed the jury:
In view of the fact you have been deliberating for about two hours[,] I desire you to continue your deliberations. Also[,] you should reread instruction #2.
Instruction 2 provided:
`As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become convinced that it is wrong. However, you should not change your honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict.' CP at 64; see 11 Washington Pattern Jury Instructions: Criminal sec. 1.04, at 14 (2d ed. 1994).
CP at 75.
CrR 6.15(f)(2) provides:
After jury deliberations have begun, the court shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate.
`The purpose of this rule is to prevent judicial interference in the deliberative process.' State v. Boogaard, 90 Wn.2d 733, 736, 585 P.2d 789 (1978). The rule does not prohibit all instructions in response to a jury's statement that it is deadlocked. State v. Watkins, 99 Wn.2d 166, 175, 660 P.2d 1117 (1983). An instruction is prohibited only if it suggests (1) the need for agreement; (2) the consequence of the jury's failure to agree; or (3) the amount of time the jury will be required to deliberate. Id. To obtain a new trial, `a defendant must establish a reasonably substantial possibility that the verdict was improperly influenced by the trial court's intervention.' Id. at 178.
Mr. Carr contends the court's response suggested both that the jurors needed to agree and that additional time was required for deliberations. But the response did not tell jurors they were required to agree; it merely told them to continue deliberating and referred them to Instruction 2, which Mr. Carr does not contend is an incorrect statement of the law. Nor did the court give jurors a specific amount of time it would be required to deliberate.
Mr. Carr contends merely telling jurors they should continue to deliberate was improper. This argument reads too much into CrR 6.15(f)(2), and effectively would preclude any response to a jury that reports itself deadlocked. Watkins does not support Mr. Carr's argument.
Mr. Carr has failed to demonstrate even a remote possibility that the court's response influenced the jury. This conclusion is supported by defense counsel's acquiescence in the response. Reversal is not required.
Finally, Mr. Carr contends the evidence was insufficient to convict him. When a defendant challenges the sufficiency of the evidence, the court must view the evidence in a light most favorable to the prosecution and must determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). The court must draw all reasonable inferences in the State's favor and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). The elements of a crime may be established by either direct or circumstantial evidence, and one type of evidence is no more or less trustworthy than the other. State v. Gosby, 85 Wn.2d 758, 765-66, 539 P.2d 680 (1975).
Mr. Carr points out first that Ms. Carr did not identify him in court as the person who assaulted her. However, while in-court identification is preferred, the evidence may be sufficient if the defendant is present throughout the trial and identity is not a matter of `particular significance' to the trier of fact under the circumstances. State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974). Here, Mr. Carr was present throughout the proceedings, and, as his accuser's husband, he was undeniably the person involved. The evidence was sufficient.
Mr. Carr also contends there was insufficient evidence of his intent to cause Ms. Carr's injuries. `Specific intent cannot be presumed, but it can be inferred as a logical probability from all the facts and circumstances.' State v. Pierre, 108 Wn. App. 378, 386, 31 P.3d 1207 (2001). Given the severity of Ms. Carr's injuries, Mr. Carr's specific intent to cause great bodily harm may be inferred. He also points out that Ms. Carr gave a different version of the events to police and paramedics, apparently suggesting her testimony against him was not credible. However, the jury obviously found her testimony in court credible, and that determination is not subject to review. See State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). The evidence was sufficient.
The conviction is 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.
BROWN, C.J. and SCHULTHEIS, J., concur.