Opinion
No. 53587-1-I
Filed: April 11, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 03-1-02262-9. Judgment or order under review. Date filed: 12/18/2003. Judge signing: Hon. Ellen J. Fair.
Counsel for Appellant(s), Dana M Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Rebecca Jane Quirk, Attorney at Law, Pr Aty of Miss Bldg Ms504, 3000 Rockefeller Ave, Everett, WA 98201-4046.
The jury unanimity requirement `does not extend to unanimity as to which of the several alternate means was used when substantial evidence supports each method by which the single crime may have been committed.' Here, the court instructed the jury on three definitions of attempted battery but failed to give a unanimity instruction. Because we find substantial evidence in the record to support Ricky Gillen's assault convictions based on the challenged theory of attempted battery, we affirm those convictions.
State v. Bland, 71 Wn. App. 345, 353, 860 P.2d 1046 (1993) (citing State v. Whitney, 108 Wn.2d 506, 511, 739 P.2d 1150 (1987)).
FACTS
On October 19, 2003, Ricky Gillen's brother, Michael Gillen, contacted the police to report that his mother's car might have been stolen. Deputy Sheriff David Bilyeu arrived at the Gillen household and spoke with Michael. Michael suggested that Deputy Bilyeu speak with his brother Ricky who was inside the apartment. Michael also mentioned that he believed Ricky was wanted on an outstanding arrest warrant. Deputy Bilyeu returned to his car and using his computer confirmed that Ricky was wanted on an outstanding warrant. Not wanting to confront Ricky by himself, he called for backup.
Master Patrol Deputy Tom Percy and Sheriff Sergeant Barry Ruchty arrived at the scene to assist Deputy Bilyeu. Deputy Bilyeu asked Michael to go into the building and try and persuade Ricky to come outside. Michael went into the apartment but after a few minutes he failed to reappear. Deputy Bilyeu and Deputy Percy then entered the apartment building and approached the open front door of the Gillen apartment. Sergeant Ruchty went to the back of the building to make sure nobody was fleeing.
Deputies Bilyeu and Percy entered the apartment and approached the door to Ricky's bedroom. Deputy Bilyeu could hear Ricky and Michael talking inside the room. Deputy Bilyeu asked Ricky to come outside to talk to him about the car. From his position, Deputy Bilyeu could see Ricky lunge to the right as if to grab something but could not tell what it was. It was later shown that Ricky had grabbed a glass cologne dispenser from his dresser that was shaped like a Colt .45 gun.
Both deputies then heard Michael say, `He's got a gun' and the deputies drew their guns in response. Michael then said, `It's a fake. It's plastic.' But the deputies could not verify the gun was fake because Ricky was holding the object behind his back while facing the deputies in a `fighting stance.' The deputies then yelled at Ricky to drop the gun and they pulled Michael away from the scene.
At one point during the stand-off Ricky said, `I've got a gun. You'll have to shoot me.' While continuing to yell at Ricky to drop what he thought to be a gun, Deputy Bilyeu reached for his can of pepper spray and emptied it in the direction of Ricky. Due to the air flow in the room much of the spray blew back in the direction of the deputies. The spray had little effect on Ricky who wiped his face and eyes and resumed his fighting posture.
Both deputies then observed Ricky reach towards an open drawer to grab something. As he did so, Deputy Bilyeu observed what looked like the cylinder of a gun sticking out of the back of Ricky's pants. Deputy Percy saw Ricky grab a dark object from the drawer which he proceeded to hold behind his back. Both deputies could see that he was manipulating something behind his back, but they were unsure what it was. They continued to yell at Ricky to drop what they thought to be a gun.
Deputy Bilyeu then told Deputy Percy to go get his Sageco impact weapon from the car. Sergeant Ruchty, who had just entered the apartment, stayed behind and took up Deputy Percy's position in the doorway.
Deputy Percy returned with the weapon and aimed it at Ricky, at which point Ricky said to Deputy Percy, `Are you going to shoot me with that?' Deputy Percy then fired three shots. The first shot was a misfire, but the second two shots hit Ricky. The impact caused Ricky to fall onto the bed which was immediately to his left.
The two deputies and the sergeant then approached Ricky who was lying on the bed on his stomach. After telling Ricky not to move, Deputy Bilyeu got one knee up on the bed and reached for Ricky's arm. Before he could grab Ricky's arm, Ricky flipped over on his back and started up towards Deputy Bilyeu. Deputy Bilyeu punched Ricky in the face and Ricky said, `You want to fight, huh?' Ricky then kicked Deputy Bilyeu in the face.
The deputies then managed to flip Ricky back onto his stomach, but Ricky kept his hands hidden underneath his body. Deputy Percy no longer could see the `gun' in the back of his pants. Deputy Bilyeu positioned himself on the back of Ricky's legs between the small of his back and the back of his knees and began hitting Ricky around the ankles with his club. Deputy Percy was at the right side of Ricky's body trying to secure Ricky's right hand and Sergeant Ruchty was on the opposite side of Ricky's body. Both Deputy Percy and Sergeant Ruchty were striking Ricky.
Ricky was thrashing violently, bucking his body as the officers attempted to subdue him. Deputy Bilyeu perceived that Ricky was trying to get up and attack them, to fight them. Deputy Percy testified that he considered the struggle to be a fight for his life.
Deputy Percy eventually pried Ricky's hand out from underneath his body and as he did so he saw an open-lock, bladed, three and half inch knife lying on the bed underneath Ricky's chest where his hand had previously been. After yelling, `He's got a knife,' Deputy Percy managed to grab the knife and throw it out the window. Deputy Percy and Sergeant Ruchty then were able to secure both of Ricky's arms and cuff him.
After being taken into custody, Ricky told Deputy Craig White that he had fought with the `cops' and was stupid in picking the toughest cop to fight. He also told Deputy White that he knew how to fight and after Deputy White informed him that he had kicked one of the deputies in the face, Ricky told him that he would tell all the guys down at the jail that at least he took one of the cops out.
On October 21, 2003, Ricky Gillen was charged with one count of third degree assault against Deputy Bilyeu, with an accompanying allegation that he was armed with a deadly weapon: a knife. Before the trial, State added identical counts of third degree assault against Deputy Percy and Sergeant Ruchty as well as one count of possessing cocaine.
At trial, the jury instructions contained the following definitions of assault:
An assault is an intentional touching or striking or cutting of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking or cutting is offensive, if the touching or striking or cutting would offend an ordinary person who is not unduly sensitive. [Battery]
An assault is also an act, with unlawful force, done with intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted. [Attempted Battery]
An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. [Common Law Assault]
The jury was not read a unanimity instruction.
The jury convicted Ricky on all counts. Ricky appeals, claiming that there was not substantial evidence to convict him of the assaults based on attempted battery.
ANALYSIS
Ricky Gillen claims that there was not substantial evidence to convict him of one of the alternative means of committing the three assaults: attempted battery. Because the jury was not read a unanimity instruction with regards to the three alternative methods of committing the assault, he asks this court to vacate the assault convictions. However, the jury unanimity requirement `does not extend to unanimity as to which of the several alternate means was used when substantial evidence supports each method by which the single crime may have been committed.' `Substantial evidence exists where there is a sufficient quality of evidence in the record to persuade a fair-minded, rational person of the truth of the findings.' Here substantial evidence supports the three assault convictions based on attempted battery.
Bland, 71 Wn. App. at 353 (citing Whitney, 108 Wn.2d at 511).
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Attempted battery is defined as `an act, with unlawful force, done with intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied with the apparent present ability to inflict the bodily injury if not prevented.' A reasonable jury could have been persuaded by the evidence in the record that Ricky had armed himself with a knife and that his violent thrashing while the officers attempted to subdue him constituted attempted battery.
That Ricky had armed himself with a knife is supported by substantial evidence in the record. During the standoff, the officers observed Ricky grab an object and manipulate it behind his back. Later, during the struggle, Deputy Percy discovered an open knife on the bed beneath Ricky where Ricky's hand had just been. Deputy Percy testified that the knife was consistent with the object he saw Ricky grab earlier. Such evidence could persuade a fair-minded, rational person to believe that Ricky was armed with a knife during his struggle with the officers.
Additionally, a fair-minded, rational person could infer from the circumstances that Ricky intended to inflict bodily injury upon the officers during the struggle. These circumstances included Ricky's combative, threatening posture towards the deputies as they confronted him, his verbal challenge to Deputy Bilyeu, his statement to the deputies that he had a gun, the fact that he intentionally kicked one of the deputies in the face, and his later statements to police that he had fought with the `cops.' Given these circumstances, his violent thrashing as the deputies attempted to subdue him could be construed by a fair-minded, rational person as an act with unlawful force done with the intent to injure the deputies. Furthermore, a fair-minded, rational person could infer that Ricky had the ability to inflict bodily injury upon the deputies if not prevented. After all, Ricky had already succeeded in kicking one of the deputies in the face.
The assault convictions are affirmed.
GROSSE, SCHINDLER and BAKER, JJ.