Opinion
41715-4-II
01-08-2013
STATE OF WASHINGTON, Respondent, v. DELWYN JAMES GIBBONS, Appellant.
UNPUBLISHED OPINION
Quinn-Brintnall, J.
A jury found Delwyn Gibbons guilty of three counts of second degree assault, two counts of fourth degree assault, and one count of unlawful imprisonment. The jury also found aggravating factors, including that the crimes were domestic violence. In this appeal, Gibbons challenges the special verdict forms, arguing that they violated State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), and State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003). In a statement of additional grounds (SAG) Gibbons alleges (1) insufficient evidence supports the jury's verdict, (2) the fourth degree assault statute is unconstitutionally vague, (3) the police illegally entered Gibbons's house and unlawfully arrested him, and (4) he received ineffective assistance from his trial counsel. Our Supreme Court recently overturned Goldberg and Bashaw in State v. Nuñez, 174 Wn.2d 707, 285 P.3d 21 (2012), and Gibbons's SAG claims lack merit. We affirm.
FACTS
On April 28, 2010, Lecia Massey-Badgley called the police to request a welfare check on her sister, Dawn Cauthron. Massey-Badgley reported that Cauthron was paraplegic and she was with a man, Gibbons, who was trying to take her two-month-old baby away from her. Massey-Badgley also reported that when she attempted to call her sister, Gibbons would take the phone from Cauthron and hang it up. Deputy Kevin Gadaire of the Clark County Sheriff's Office responded to Cauthron and Gibbons's home to perform a welfare check. When Gadaire arrived at the house, he could hear music or a television inside and he could see cars in the driveway, but nobody was answering the door. Gadaire called Massey-Badgley for more information. Massey-Badgley reported that there had been several domestic violence incidents between Cauthron and Gibbons in the past. After backup arrived, Gadaire and the deputies demanded entry into the house to perform a welfare check on Cauthron. At that point, Gibbons answered the door.
After entering the house, Deputy Gadaire found Cauthron on the bed in the master bedroom. Gadaire testified that when he found Cauthron, she was
like half -- her head was about halfway down on the bed. And, her -- her feet were almost to the edge of the bed and they were bent up and they were towards her --they were bent and her feet were almost touching her buttocks and her feet were --her knees were pointed up and they were spread out to the extreme. And, she was on her back with her -- her head facing straight towards the ceiling and her arms were by her side.2 Report of Proceedings (RP) at 229. Her wheelchair was across the room against the wall opposite the foot of the bed, outside of Cauthron's reach. Cauthron did not move her head and she had trouble speaking. Cauthron told Deputy Gadaire that over the last several days Gibbons had strangled her three times, Gibbons had also slapped her in the face, and had, at one point, picked her up out of her wheelchair and thrown her on the ground. Cauthron was transported to the hospital for treatment. At the hospital, Cauthron made an additional statement to Detective Lindsay Schultz of the Clark County Sheriff's Office.
On July 1, 2010, the State charged Gibbons with three counts of second degree assault (domestic violence) (counts 1 through 3), one count of harassment - death threats (domestic violence) (count 4), one count of fourth degree assault (domestic violence) (count 5), and one count of unlawful imprisonment (domestic violence) (count 6). Former RCW 9A.36.021(1)(g) (2007); former RCW 9A.46.020(1)(a)(i), (2)(b)(ii) (2003); RCW 9A.36.041(1); RCW 9A.40.040(1). On December 16, 2010, the State filed its fifth amended information which included the following aggravating factors to counts 1 through 4, and 6: (1) deliberate cruelty, and (2) particularly vulnerable victim. RCW 9.94A.535(3)(a); RCW 9.94A.535(3)(b). The fifth amended information also included an additional count of fourth degree assault (domestic violence) (count 7). RCW 9A.36.041(1).
A jury trial began on December 13, 2010. On December 17, 2010, the jury found Gibbons guilty of three counts of second degree assault, two counts of fourth degree assault, and one count of unlawful imprisonment. The jury found that Gibbons and Cauthron were family or household members for the purposes of the domestic violence charges. The jury returned special verdict forms finding that two of the second degree assaults (counts 1 and 2) were committed with deliberate cruelty and that Cauthron was a particularly vulnerable victim for all three second degree assaults and the unlawful imprisonment. Gibbons timely appeals.
ANALYSIS
Gibbons contends that the trial court committed reversible error by instructing the jury that unanimity was required to answer "no" on the sentence enhancement special verdicts. Because the Supreme Court recently overturned Goldberg, and overruled the "nonunamity rule" for special verdicts, the trial court did not err, as a matter of law, in instructing the jury that it needed to agree unanimously on the answer to the special verdict. Nuñez, 174 Wn.2d at 709.
SAG
Sufficiency of the Evidence
Gibbons argues that insufficient evidence supports the jury's verdict on two of the second degree assaults (counts 2 and 3) and the two fourth degree assaults (counts 5 and 7). Essentially, Gibbons argues that because Cauthron recanted her earlier statements to the police, a reasonable jury could not have found him guilty of the assault charges.
Evidence is sufficient if, when viewed in a light most favorable to the jury's verdict, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201.
Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Our role is not to reweigh the evidence and substitute our judgment for that of the jury. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Instead, because they observed the witnesses testify first hand, we defer to the jury's resolution of conflicting testimony, evaluation of witness credibility, and decisions regarding the persuasiveness and the appropriate weight to be given the evidence. See State v. Walton, 64 Wn.App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
Under former RCW 9A.36.021(g), a defendant commits second degree assault if he assaults another by strangulation. Under count 2 of the information, the State alleged that Gibbons was guilty of second degree assault by wrapping a black silk bathrobe tie around Cauthron's throat and wrists and pulling her hands down until the tie cut off her ability to breathe. Under count 3, the State alleged that Gibbons was guilty of second degree assault by strangulation by putting Cauthron in a "chokehold" and lifting her out of her wheelchair. 5 RP at 842.
Here, the State presented testimony from Deputy Gadaire and Deputy Schultz about the statements in which Cauthron described the above assaults to them. The deputies testified that when they interviewed her in the hospital, Cauthron had difficulty speaking in a manner which is indicative of strangulation. We also note that the trial court admitted Cauthron's statements to the police as excited utterances under ER 803(a)(2) because there was no indication that "there was anything that would mean that . . . she has had a chance to calm down or that she has had a chance to process." 2 RP at 195.
The State also presented statements Cauthron made in a defense interview that were consistent with the statements that she made to the deputies. But during trial, Cauthron minimized the incidents in her testimony. She testified that when Gibbons wrapped the black bathrobe tie around her hands and neck, it was not tight enough to restrict her airway. She also testified that when Gibbons wrapped his arm around her and lifted her out of her wheelchair, he was hugging her not putting her in a chokehold. Based on the testimony presented at trial, a reasonable jury could have found that the deputies' testimony about Cauthron's excited utterances more credible than her minimizing testimony at trial. We defer to a jury's determination of credibility. There was sufficient evidence to support the jury's verdicts finding Gibbons guilty of both the strangulation with the black bathrobe tie and the strangulation by chokehold.
Under RCW 9A.36.041, a defendant commits fourth degree assault if he commits an assault under circumstances not amounting to first, second, or third degree assault, or custodial assault. The State charged Gibbons with two counts of fourth degree assault, counts 5 and 7. Count 5 was based on Gibbons slapping Cauthron in the face and causing a "swollen lip." 5 RP at 845. Count 7 of the information was based on Gibbons picking Cauthron up and throwing her out of her wheelchair.
The State presented the testimony of the deputies regarding the excited utterances that Cauthron made about the assaults. Deputy Gadaire testified that Cauthron had a swollen lip and a cut on her face when he first contacted her in the bedroom. And the State also presented pictures of Cauthron's facial injuries and other bruises taken the day Cauthron was admitted to the hospital. Based on all of the testimony recounting Cauthron's excited utterances on the day of the incident and the pictures depicting Cauthron's facial injuries and bruises, a reasonable jury could have found the elements of the crime beyond a reasonable doubt, even considering that Cauthron minimized the incidents when she testified at trial. Therefore, sufficient evidence supports the jury's verdicts on the two counts of fourth degree assault.
Vagueness Challenge
Gibbons also argues that the fourth degree assault statute, RCW 9A.36.041, is unconstitutionally vague because it does not describe the specific conduct prohibited by the statute. Because the fourth degree assault statute incorporates the common law definition of assault and an ordinary person would understand Gibbons's conduct was prohibited by the statute, the statute is not unconstitutionally vague. Thus, Gibbons's argument lacks merit.
A statute is unconstitutionally vague if ordinary people cannot understand what is prohibited or the statute lacks sufficient standards of guilt leading to arbitrary enforcement. State v. Jarvis, 160 Wn.App. 111, 117, 246 P.3d 1280, review denied, 171 Wn.2d 1029 (2011). "Vagueness challenges to statutes that do not involve First Amendment rights are to be evaluated in light of the particular facts of each case." Jarvis, 160 Wn.App. at 117 (citing State v. Sigman, 118 Wn.2d 442, 445, 826 P.2d 144 (1992)). "'A statute employ[ing] words with a well-settled common law meaning, generally will be sustained against a charge of vagueness.'" Jarvis, 160 Wn.App. at 117 (internal quotation marks omitted; alteration in original) (quoting State v. Monschke, 133 Wn.App. 313, 332, 135 P.3d 966 (2006), review denied, 159 Wn.2d 1010, cert. denied, 552 U.S. 841 (2007)). RCW 9A.36.041(1) states,
A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another."Because Washington's criminal code does not define assault, the courts apply common law definitions." Jarvis, 160 Wn.App. at 117 (citing State v. Stevens, 158 Wn.2d 304, 310-11, 143 P.3d 817 (2006)). The common law definition of assault includes an unlawful touching with criminal intent. Jarvis, 160 Wn.App. at 117-18 (quoting State v. Walden, 67 Wn.App. 891, 893-94, 841 P.2d 81 (1992)). A touching may be unlawful because it was harmful or offensive. Jarvis, 160 Wn.App. at 118 (quoting State v. Thomas, 98 Wn.App. 422, 424, 989 P.2d 612 (1999), review denied, 140 Wn.2d 1020 (2000)).
Here, the State charged Gibbons with one count of fourth degree assault for slapping Cauthron in the face and one count of fourth degree assault for throwing Cauthron out of her wheelchair. Therefore, the appropriate inquiry is whether an ordinary person would understand that slapping a person in the face and throwing a person out of a wheelchair is harmful or offensive touching prohibited by the statute. See Jarvis, 160 Wn.App. at 118. Not only are Gibbons's actions offensive, they both caused Cauthron harm. Any ordinary person would be able to identify Gibbons's conduct as prohibited by RCW 9A.36.041(1). Accordingly, Gibbons's vagueness challenge fails.
Illegal Entry and Arrest
Gibbons alleges that the deputies illegally entered his home and lacked probable cause to arrest him. But Gibbons did not raise this argument at trial and he has waived it. RAP 2.5(a)(3). Under RAP 2.5(a),
The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: . . . manifest error affecting a constitutional right.As we recently held in State v. Grimes, 165 Wn.App. 172, 267 P.3d 454 (2011), review denied, 175 Wn.2d 1010 (2012), for this RAP 2.5(a)(3) exception to apply, an appellant must show both that (1) the error implicates a specifically identified constitutional right, and (2) the error is "manifest" in that it had "practical and identifiable consequences" in the trial below. See 165 Wn.App. at 186-87 (citing State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011)). Generally, failure to move to suppress evidence constitutes a waiver of the right to exclude it as obtained in violation of the Fourth Amendment. State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995). In State v. Robinson, 171 Wn.2d 292, 253 P.3d 84 (2011), our Supreme Court determined rules of issue preservation do not apply to waiver of Fourth Amendment challenges when the following conditions are met:
(1) a court issues a new controlling constitutional interpretation material to the defendant's case, (2) that interpretation overrules an existing controlling interpretation, (3) the new interpretation applies retroactively to the defendant, and (4) the defendant's trial was completed prior to the new interpretation.Robinson, 171 Wn.2d at 305.
Here, Gibbons has not demonstrated there has been a "new controlling constitutional interpretation" of the controlling law on either (1) welfare checks or (2) probable cause to arrest. Without new controlling authority, Gibbons cannot meet any of the additional factors required to demonstrate that the principles of issue preservation do not apply to his case. Accordingly, Gibbons has waived his Fourth Amendment challenges to the entry of his home and his arrest. See State v. Lee, 162 Wn.App. 852, 856-57, 259 P.3d 294 (2011), review denied, 173 Wn.2d 1017 (2012).
Ineffective Assistance of Counsel
Finally, Gibbons argues that he received ineffective assistance of counsel because his defense counsel failed to call potentially exculpatory witnesses. Gibbons also claims his defense counsel failed to impeach Massey-Badgley's testimony using (1) a deposition interview, (2) a 911 tape, and (3) an alleged incident involving Massey-Badgley leaving Cauthron outside of the courtroom. Finally, Gibbons alleges that his trial counsel failed to present a surveillance video of Cauthron at a Walgreen's and a video showing Cauthron withdrawing money from a "cash machine" during the period the assaults took place. Gibbons's ineffective assistance of counsel claim also fails.
To prevail on an ineffective assistance of counsel claim, Gibbons must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance is deficient if it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Our scrutiny of counsel's performance is highly deferential; we strongly presume reasonableness. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To rebut this presumption, a defendant bears the burden of establishing the absence of any conceivable legitimate trial tactic explaining counsel's performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). To establish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have differed absent the deficient performance. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). If an ineffective assistance claim fails to support a finding of either deficiency or prejudice, it fails. Strickland, 466 U.S. at 697. We do not review evidence not in the record on appeal; a personal restraint petition is the appropriate vehicle for presenting such evidence. McFarland, 127 Wn.2d at 338.
The decision whether to call a particular witness is a tactical decision that will not support an ineffective assistance of counsel claim. In re Davis, 152 Wn.2d 647, 742, 101 P.3d 1 (2004). Therefore, Gibbons's claim based on defense counsel's failure to call his neighbors as witnesses is not sufficient to support his ineffective assistance of counsel claim and this part of his claim fails.
Gibbons's claim based on his defense counsel's failure to impeach Massey-Badgley likewise fails. First, Gibbons alleges that defense counsel failed to impeach Massey-Badgley with a deposition. Although Gibbons does not specifically note which deposition, his defense counsel did impeach Massey-Badgley with the transcripts of an interview she did with the defense. Second, the remaining evidence Gibbons alleges should have been used for impeachment (a 911 tape and an alleged incident where Massey-Badgley left Cauthron outside the courtroom) is not in the record. Because we do not review evidence outside the record on appeal, Gibbons's alleged impeachment evidence cannot form a basis for an ineffective assistance of counsel claim. McFarland, 127 Wn.2d at 338.
Even if we reviewed the merits of Gibbons's claim regarding impeachment with the 911 tape, it would fail. Defense counsel's decision not to impeach Massey-Badgley with the 911 tape was a valid trial tactic. Defense counsel may not have wanted to play the 911 tape for the jury because Massey-Badgley was emotional and concerned about her sister's welfare when she called the police; defense counsel may not have wanted the jury to hear the emotion in the call. Because legitimate trial tactics are not a basis for an ineffective assistance of counsel claim, Gibbons's claim that defense counsel was ineffective for failing to impeach Massey-Badgley with the 911 tape fails. Grier, 171 Wn.2d at 33.
The videos allegedly picturing Cauthron out of the house during the alleged assaults are also not in the record. Because we do not review evidence outside the record on appeal, we cannot review Gibbons's alleged claim that his trial counsel failed to present exculpatory evidence. McFarland, 127 Wn.2d at 338.
The trial court did not err when it instructed the jury that unanimity was required to answer "no" on the special verdict forms because the nonunanimity rule was overturned by Nuñez and Gibbons was not prejudiced. Gibbons's SAG claims lack merit. Accordingly, we affirm.
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.
We concur: PENOYAR, J., WORSWICK, C.J.