Opinion
No. 33377-5-II.
May 23, 2006.
Appeal from a judgment of the Superior Court for Lewis County, No. 04-1-00655-9, H. John Hall, J., entered June 6, 2005.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), J. Andrew Toynbee, Lewis County Prosecuting Atty Ofc, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Hunt, J.
Marlowe Jay Yoder appeals his convictions of second degree assault, second degree taking a motor vehicle without the owner's permission, and three counts each of firearm theft and second degree unlawful possession of a firearm. We affirm.
FACTS I. The Theft and Assault
Yoder lived with his elderly father, Avon. Yoder needed some money for a trip to Portland, so he decided to leave his house and try to pawn three of his father's guns. He tried to start his own car, but it would not start, so he instead took his father's 1978 Cadillac. His father was asleep at the time and had not given him permission to take the Cadillac. Yoder drove to his Alcoholics Anonymous sponsor's house to ask for a loan, using the guns as collateral.
We use Avon Yoder's first name only to avoid confusion. We intend no disrespect.
When Avon awoke and discovered that his car was missing, he called the Lewis County Sheriff's Department. Deputy Sheriff Dan Riordan responded, arriving at the Yoder property. Yoder soon returned with the three guns still in his possession and parked the Cadillac in the driveway behind Riordan's vehicle.
Riordan felt concerned because the Cadillac blocked him in the driveway and because he knew that Yoder had a suspended driver's license and was a convicted felon. Riordan approached Yoder as he sat in the Cadillac and briefly listened as Yoder spoke. Yoder's hands rested, empty, on the steering wheel. Riordan could not see the seat beside Yoder, but he noticed a rifle in the back seat. Upon seeing the rifle, Riordan several times ordered Yoder out of the vehicle. When Yoder did not comply, Riordan held a Taser to Yoder's chest, again ordering him to exit the vehicle.
Riordan did not discharge the Taser during the incident.
Yoder began to get out of the vehicle by bending forward and backing out with his buttocks toward Riordan. As he backed out, Riordan asked him if he had any guns and Yoder quickly replied that he did not. Yoder then became upset and lunged forward toward the middle of the seat, extending his right hand. Riordan dove onto Yoder, restraining him and grabbing his right hand. Riordan then pulled him out of the vehicle. After raising Yoder's right hand, he saw that Yoder was holding a large .357 Smith and Wesson revolver. Riordan feared that Yoder might break free of his grasp and shoot him or Avon. Riordan struggled to take the revolver from Yoder and successfully locked the hammer and cylinder so it could not fire. During the struggle, Yoder pointed the revolver in several directions, but never at Riordan.
Riordan eventually took the gun from Yoder, handcuffed him, read him his Miranda rights, and took him to the police station. Yoder said he understood his rights and was willing to answer Riordan's questions. After answering several questions, Yoder asked Riordan to call his attorney in Portland. At this point, Riordan stopped questioning Yoder.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Avon gave Riordan permission to take the vehicle and three firearms into evidence. The .357 contained one bullet in the firing position. Yoder claimed he had loaded the gun earlier for `self-defense.' 1 Report of Proceedings (RP) (May 31, 2005) at 102. The other two guns, a single shot .32 Stevens and a .22 Ruger, were antiques and unloaded. The officers did not test fire the guns, but Avon said the antique guns were `like new' and could fire bullets, 1 RP at 77, and Riordan said they were in `mint' condition and operational. 1 RP at 67.
II. Procedure
The State charged Yoder with: (1) one count of second degree assault; (2) three counts of theft of a firearm; (3) three counts of second degree unlawful possession of a firearm; and (4) one count of second degree taking a motor vehicle without the owner's permission.
Before trial, Yoder requested, and the court granted, a competency evaluation. Six months after his request, the State sent the paperwork to Western State Hospital, and a month later the court found Yoder competent. Yoder later requested new counsel, alleging that his counsel (1) failed to ensure a speedy mental health evaluation and (2) failed to provide him a copy of an omnibus order. The court denied his request.
The morning of trial, the State filed a third amended information. Yoder's counsel stipulated to Yoder's prior felony convictions. Yoder again requested new counsel, arguing that his counsel failed to subpoena several witnesses who could testify regarding `extenuating circumstances.' 1 RP at 14. Yoder's counsel explained to the court that he had analyzed Yoder's suggested witnesses and determined that it was in Yoder's best interest that those people do not testify. The court again denied Yoder's request for new counsel. Then, under CrR 3.5, Yoder moved to suppress statements he made to Riordan. The court ruled orally that Yoder's statements were admissible, but it did not enter written findings of fact and conclusions of law.
After the State presented its case-in-chief to the jury, Yoder testified that there was no struggle over the handgun and denied assaulting Riordan. The jury convicted Yoder on all counts.
Yoder's counsel agreed with the State's calculation of the standard sentencing range, but he asked for an exceptional sentence below the standard range. The court followed the State's recommendation, at the bottom sentencing range, and sentenced Yoder to a total of 240 months in prison, including a 36-month firearm enhancement. Yoder appeals.
ANALYSIS I. Sufficiency of the Evidence
Yoder first argues that the State failed to present sufficient evidence to prove that (1) he had the intent required to convict him of second degree assault and (2) he stole and possessed `firearms' within the statutory definition. These arguments fail.
Sufficiency of the evidence is a question of constitutional magnitude and can be raised for the first time on appeal. State v. Alvarez, 128 Wn.2d 1, 13, 904 P.2d 754 (1995). We review the sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When a defendant challenges the sufficiency of evidence in a criminal case, we draw all reasonable inferences from the evidence in favor of the State and most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A. Second Degree Assault Charge
Yoder argues that the evidence was insufficient to support the intent element of the assault charge because he never pointed the gun at Riordan. This argument fails.
Under RCW 9A.36.021(1)(c), `A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . [a]ssaults another with a deadly weapon.' The term `assault' is not defined in the criminal code, so Washington courts turn to the common law definition. State v. Aumick, 73 Wn. App. 379, 382, 869 P.2d 421 (1994), aff'd, 126 Wn.2d 422 (1995). The common law recognizes three types of assault: (1) attempted battery: an attempt, with unlawful force, to inflict bodily injury upon another; (2) actual battery: an unlawful touching with criminal intent; and (3) common law assault: putting another in apprehension of harm, whether or not the actor intends to inflict or is capable of inflicting that harm. State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994).
The court instructed the jury on all three types of assault, along with the intent element for common law assault.
Common law assault requires proof that a defendant specifically intended to create reasonable fear and apprehension of bodily injury. State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). A jury may infer specific intent to create fear if a defendant pointed a gun at a victim, unless the victim knew the weapon was unloaded. State v. Miller, 71 Wn.2d 143, 146, 426 P.2d 986 (1967); State v. Karp, 69 Wn. App. 369, 374-75, 848 P.2d 1304, review denied, 122 Wn.2d 1005 (1993). But a jury may not infer specific intent if a defendant merely displayed a weapon. Miller, 71 Wn.2d at 146. For instance, if a man peacefully walks down the street carrying a machete, unwittingly terrifying bystanders, the State properly should charge him with unlawful display of a weapon under RCW 9.41.270 and not common law assault. See Karp, 69 Wn. App. at 374.
Yoder argues that the evidence was insufficient to prove intent because he never pointed the gun at Riordan. But a defendant need not actually point a weapon at his victim to possess the requisite intent. See, e.g., State v. Maurer, 34 Wn. App. 573, 580, 663 P.2d 152 (1983). Yoder went far beyond merely displaying the .357. He grew angry at Riordan and then grabbed a loaded weapon. After Riordan restrained Yoder, Yoder did not relinquish the gun, but instead struggled vigorously to keep the gun in his hand and to escape Riordan's grasp. Viewing this evidence in the State's favor, a reasonable jury could have concluded that Yoder grabbed, then struggled to retain the loaded weapon because he intended to shoot Riordan or, at least, intended to create in Riordan a fear of injury. Yoder challenges no other element of the assault charge. Accordingly, his sufficiency argument as to this charge fails.
In Maurer, we held that the evidence supported a common law assault charge, even though the State failed to allege that the defendant pointed his weapon at his victims. Maurer, 34 Wn. App. at 579-80. The court did not directly address the intent element, but the facts clearly indicated that the defendant intended to create reasonable fear and apprehension of bodily injury: he sharpened a butcher knife in front of two young children, told them he would cut off their hands, and then pushed their hands onto a butcher block. Maurer, 34 Wn. App. at 575-78, 578-80.
Yoder also urges us to reverse the trial court's denial of his motion to dismiss at the close of the State's case. But if a defendant presented a case-in-chief, he may not appeal the denial of a motion to dismiss made at the end of the State's case-in-chief. State v. Jackson, 82 Wn. App. 594, 608, 918 P.2d 945 (1996). Yoder presented a case-in-chief by testifying, so he may not appeal on this ground. When the defendant presents evidence, we review a claim of insufficiency based on the entire trial court record instead of reviewing only the State's evidence. Jackson, 82 Wn. App. at 609. We have done so here.
B. Theft and Possession of a `Firearm'
Yoder argues, for the first time on appeal, that the evidence was insufficient to prove that what he possessed and stole were `firearms.' He asserts that the State was required to prove that the guns were operational by test-firing the weapons. We disagree.
To convict a defendant of theft of a firearm or unlawful possession of a firearm, the State must prove that the weapon at issue was a `firearm,' as defined in RCW 9.41.010(1). This statute defines `firearm' as `a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder.' RCW 9.41.010(1) (emphasis added). An unloaded or even inoperable firearm is still a firearm under RCW 9.41.010(1). State v. Berrier, 110 Wn. App. 639, 645, 41 P.3d 1198 (2002); and see State v. Padilla, 95 Wn. App. 531, 535, 978 P.2d 1113, review denied, 139 Wn.2d 1003 (1999) (holding that a gun rendered permanently inoperable is not a `firearm,' but a disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time period is a `firearm').
RCW 9A.56.300(5) (criminalizing theft of a firearm, and referring explicitly to RCW 9.41.010(1)); RCW 9.41.040 (criminalizing unlawful possession of a firearm, and contained in the same title and chapter as RCW 9.41.010(1)).
At trial, Riordan, who had training and experience with firearms, testified that all three guns appeared to be in working order and capable of firing bullets. Avon, the guns' owner, also testified that all three guns were like new and operable. This testimony is sufficient to prove that the weapons were capable of firing and thus that they were `firearms.' Accordingly, this sufficiency argument also fails.
II. Effective Assistance Of Counsel
Yoder further argues that he received ineffective assistance of counsel based on the cumulative effect of two alleged errors: (1) his counsel failed to make an opening statement to the jury and (2) his counsel failed to request a review hearing to monitor the progress of the Western State Hospital competency evaluation.
When reviewing a claim of ineffective assistance of counsel, we give great deference to counsel's performance and we begin the analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To establish ineffective assistance of counsel, an appellant must demonstrate that (1) counsel's performance was deficient and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance 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). An appellant cannot rely on matters of legitimate trial strategy or tactics to establish deficient performance. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Prejudice occurs when, but for the deficient performance, the outcome of the proceeding would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). A reviewing court is not required to address both prongs of the test if the appellant fails to prove one prong. State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986).
Yoder first points out that his counsel did not make an opening statement, but he also concedes that this omission does not constitute deficient performance. Yoder argues only that the lack of opening statement indicates a `laissez faire attitude assumed by counsel throughout the case.' Br. of Appellant at 25. But we must grant great deference to counsel's performance, and Yoder makes no showing that his counsel's choice was not a legitimate trial strategy or that the choice resulted in prejudice. Strickland, 466 U.S. at 689; and see Hendrickson, 129 Wn.2d 61, 77-78. Therefore, we give no credence to this alleged error.
Yoder next addresses his counsel's failure to ensure that the State completed his RCW 10.77.060 competency evaluation in a timely manner. But Yoder does not contend, nor does the record indicate, that the outcome of his trial would have differed if his counsel ensured a timely competency evaluation. He does not show that any evidence was lost or that any witnesses were unavailable because of this delay. In short, Yoder fails to overcome the strong presumption that his counsel was effective.
Yoder last argues, in the context of his ineffective assistance of counsel claim, that the State or police engaged in "arbitrary conduct shocking to the conscience" by failing to submit Yoder's competency evaluation paperwork in a timely manner. Br. of Appellant at 25 (quoting Estate of Lee v. City of Spokane, 101 Wn. App. 158, 2 P.3d 979, review denied, 142 Wn.2d 1014 (2000)). But Yoder presents no evidence to support this allegation and this allegation does not show why Yoder's counsel performed below an objective standard of reasonableness. Accordingly, this argument fails.III. The Absence of Written Findings from the CrR 3.5 Hearing
Yoder last argues that we should remand his case because the trial court failed to enter written findings and conclusions following his CrR 3.5 hearing. This argument also fails.
CrR 3.5(c) requires a trial court to enter, in writing, findings of fact and conclusions of law. A trial court's failure to comply with this requirement constitutes error, but the error is harmless if the court's oral findings are sufficient to allow appellate review. State v. Miller, 92 Wn. App. 693, 703, 964 P.2d 1196 (1998), review denied, 137 Wn.2d 1023 (1999). Because Yoder does not appeal the substantive CrR 3.5 decision, we have no reason to review the trial court's CrR 3.5 ruling. The error was therefore harmless and we affirm on this ground.
CONCLUSION
Affirmed.
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.
HUNT, J. and VAN DEREN, A.C.J., concur.