Opinion
No. 21662-4-III.
Filed: February 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-01109-9. Judgment or order under review. Date filed: 12/12/2002.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), Stefanie Walter Collins, Spokane Co Pros Ofc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Timothy Dale Mead appeals his convictions for two counts of second degree assault. He contends the State failed to disprove self-defense and failed to prove his intent. We affirm.
Mr. Mead was charged with stabbing Brandon Hewitt and Jim Estes with a knife. At trial, Mr. Hewitt testified that on the morning of April 20, 2000, he saw Mr. Mead sitting on a bicycle in the front yard of the residence Mr. Hewitt shared with Mr. Estes and Stephanie Cool. Mr. Hewitt testified he did not know Mr. Mead and asked why he was in the yard. He said Mr. Mead offered to sell him drugs, which he declined. Mr. Hewitt testified he told Mr. Mead to leave the property and went back into the residence. Within a few minutes, Mr. Hewitt testified, he saw Mr. Mead in the backyard of the same residence. Mr. Hewitt called the police and went back to bed.
At around 4:00 a.m. the next day, as Mr. Hewitt, Mr. Estes, and Ms. Cool were inside drinking beer, they noticed a flashlight and someone on the porch. Mr. Hewitt testified he recognized the man as Mr. Mead, whom he had reported to police the day before.
A physical altercation ensued, during which Mr. Mead stabbed Mr. Hewitt in the chest and Mr. Estes in the leg. It is unclear how the altercation began. Mr. Hewitt testified he went outside to see `who was outside my window at four o'clock in the morning,' but he had only `little glimpses' of what happened after that. Report of Proceedings (RP) at 11-12.
Mr. Estes testified he went outside and saw Mr. Hewitt and Mr. Mead struggling on the porch and eventually rolling around on the front yard. Mr. Estes broke up the fight, took the flashlight away from Mr. Mead, and put him into a choke hold. Then Mr. Mead stabbed Mr. Estes in the left leg. Mr. Estes later realized Mr. Hewitt also had been stabbed.
A neighbor, Michael Akin, saw Mr. Mead and Mr. Estes fighting and tried to break it up. He saw Mr. Mead stab Mr. Estes in the leg. He testified Mr. Mead said the two men had tried to kill him and he had to leave. Mr. Akin testified Mr. Mead also said the men had stolen his bicycle and he was trying to get it back. Before running away, Mr. Mead also told Mr. Akin he was looking for a woman named Joanie. Police arrested Mr. Mead a short distance away.
Mr. Mead testified he was looking for a friend named Joanie when he saw Mr. Hewitt on April 20. He testified he offered some marijuana to Mr. Hewitt, who declined but said he might want some later. He testified Mr. Hewitt told him to come back another time if the lights and music were on in the residence. Mr. Mead testified when he returned at 4:00 a.m. the next day, the lights and music were on in the residence, so he knocked at the door and shined the flashlight on his face so the residents could see who he was. Mr. Mead testified that, instead of asking him what he wanted, the two men came outside and attacked him. He testified he was being choked, so he took out his knife and stabbed each man once.
After a bench trial, the court found Mr. Mead was trespassing at the residence at the time of the stabbings. The court's findings, without explaining precisely how the altercation started, state:
26. Mead arrived at the residence at approximately 4:00 a.m., a time of day that would reasonably create apprehension or fear in a homeowner or renter.
27. Mead had no business on this property. He was informed that he was unwelcome and was told to leave the previous morning.
28. Mead was unlawfully on the property. . . .
29. There was no necessity for the use of self-defense in this case.
30. Even under a self-defense analysis, the use of the knife, by Mead, against Hewitt and Estes constituted more force than was necessary and was not a proportional response to the circumstances surrounding this incident.
Clerk's Papers at 61.
The court found Mr. Mead guilty of two counts of second degree assault. After the trial, it was revealed that the investigating detective had learned, just a few days before the trial began, that a confidential informant had identified Mr. Hewitt as the man who had robbed a Spokane bank. Mr. Hewitt was arrested for the robbery several days after his testimony in this case.
We first consider whether the State presented sufficient evidence to prove that Mr. Mead was not acting in self-defense. When a defendant challenges the sufficiency of the evidence, we view the evidence in a light most favorable to the prosecution and 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). We 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 same standard applies regardless of whether the case is tried to a jury or to the court. See State v. Little, 116 Wn.2d 488, 491, 806 P.2d 749 (1991). 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).
The use of force against another person is lawful [w]henever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary. RCW 9A.16.020(3).
The State bears the burden of proving the absence of self-defense beyond a reasonable doubt. State v. Acosta, 101 Wn.2d 612, 615-19, 683 P.2d 1069 (1984).
A self-defense claim is not valid when the defendant himself provoked the situation through intentional actions that were reasonably likely to cause a hostile response. State v. Wasson, 54 Wn. App. 156, 159, 772 P.2d 1039, review denied, 113 Wn.2d 1014 (1989). Here, based on Mr. Hewitt's testimony, the court found that Mr. Mead had been told to leave the premises, yet he returned with a flashlight at 4:00 a.m. the next day. Under the circumstances, a trier of fact reasonably could find that Mr. Hewitt's and Mr. Estes's responses were justified under RCW 9A.16.020(3), and that Mr. Mead intentionally provoked their response. Mr. Mead's claim of self-defense thus was not valid, and the evidence supports the court's findings.
We next consider whether the State presented sufficient evidence to prove that Mr. Mead acted with intent. A person is guilty of second degree assault if he assaults another person with a deadly weapon. RCW 9A.36.021(1)(c). An assault may be (1) an intentional act that creates a reasonable apprehension of harm; or (2) an intentional touching. State v. Jones, 63 Wn. App. 703, 709-10, 821 P.2d 543, review denied, 118 Wn.2d 1028 (1992). The applicable definition here is the second, which is also known as assault by battery. State v. Daniels, 87 Wn. App. 149, 156, 940 P.2d 690 (1997), review denied, 133 Wn.2d 1031 (1998). Assault by battery does not require proof of specific intent to cause harm or apprehension of harm. Id. at 155; see State v. Esters, 84 Wn. App. 180, 184, 927 P.2d 1140 (1996) ('Specific intent is `an intent to produce a specific result, as opposed to an intent to do the physical act' that produces the result.'), review denied, 131 Wn.2d 1024 (1997).
Thus, the State was not required to prove Mr. Mead intended to harm Mr. Hewitt or Mr. Estes; it was sufficient to show that he intended to touch them with the knife. Aside from the obvious inference of his intent arising from the circumstances, Mr. Mead's own testimony establishes that he intended to stab the men:
A I was scared, you know, that — I was hearing `Kill him. Kill him.' And I can't breathe, and I'm getting hit in the head. Yeah, I was scared.
Q So, what did you do with the knife?
A I pulled it out and — and I — and I swung — and I swung out. I just swung out and people — they fell off of me.
Q Do you remember hitting anyone?
A No, it's — no. I just knew that, when I pulled the knife out and I swung out a couple of times, that it was — they fell off of me. And I was — and —
Q Did you go after them after they fell off of you?
A No, sir. I tried — I tried to — no, sir. The neighbor was there. That — that big guy that was here with the beard.
Q When Mr. Estes — you know which guy — which person Estes was?
A I do now.
Q And he's the one that was stabbed in the leg.
A Oh, yeah, okay. I know who he is now, yeah.
Q Okay. Do you remember stabbing him in the leg?
A No, I don't.
Q Okay.
A I know that — I just — I know I stabbed at whoever was choking me out.
Q Okay.
A And — and I stabbed down. I stabbed down. I didn't want to — didn't want to hurt him.
RP at 174-75. On cross examination, Mr. Mead testified:
Q But you said that you swung the knife.
A I did swing the knife and people started falling off of me. And I stopped getting choked and I stopped getting hit with my own mag light.
Q Okay. But you swing the knife. What did you think was going to happen when you were swinging the knife around?
A I was — I was hoping that somebody was going to get stabbed and they'd stop choking me and beating me in the head with the mag light and quit saying they were going to kill me. That's not hoping — I was hoping they wouldn't get killed or nothing like that. I was just hoping they would let go of me, quit choking me, and quit beating me up, sir.
RP at 185.
As this testimony shows, there was no dispute at trial that Mr. Mead intentionally stabbed the two men. His defense was that he was acting in self-defense. But as we have concluded above, the defense was not valid.
The State presented sufficient evidence of Mr. Mead's intent to assault Mr. Hewitt and Mr. Estes.
Mr. Mead has raised two additional grounds for review. First, he contends reversal is required because the State failed to reveal that Mr. Hewitt was a bank robbery suspect. The State has a duty to disclose material, exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Wittenbarger, 124 Wn.2d 467, 475, 479-81, 880 P.2d 517 (1994). However, a Brady violation may be harmless if the defendant suffered no prejudice. State v. Luvene, 127 Wn.2d 690, 704, 903 P.2d 960 (1995).
Assuming the State violated this duty by failing to reveal Mr. Hewitt's status as a suspect in a bank robbery, Mr. Mead was not prejudiced. The evidence would not have been admissible to prove Mr. Hewitt's character. See ER 404(a). Nor would it have been admitted to impeach Mr. Hewitt, who at the time had not been convicted of the crime. See ER 609. Because the evidence was not admissible, Mr. Mead was not prejudiced by the State's failure to disclose it.
Mr. Mead also contends his trial counsel was ineffective. A criminal defendant bears the burden of showing his representation was so ineffective as to deny him his constitutional right to a fair trial. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption of competency, and adequacy of counsel is not measured by the result. Id. at 335; State v. Early, 70 Wn. App. 452, 461, 853 P.2d 964 (1993), review denied, 123 Wn.2d 1004 (1994). Decisions on whether to call witnesses and the determination of subjects for examination or cross examination generally are not bases for concluding counsel's performance was deficient. State v. Piche, 71 Wn.2d 583, 590-91, 430 P.2d 522 (1967), cert. denied, 390 P.2d 912 (1968); State v. Wilkinson, 12 Wn. App. 522, 525-26, 530 P.2d 340, review denied, 85 Wn.2d 1006 (1975).
Mr. Mead contends his attorney failed to present evidence that there was another man involved in the altercation. But even if there were additional evidence of another man, Mr. Mead has not shown how he was prejudiced by counsel's failure to present it at trial. He has failed to establish ineffective assistance of counsel.
The convictions are 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.