Opinion
No. 34291-0-II.
May 30, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-00493-2, John F. Nichols, J., entered December 22, 2005.
Robert Anderson appeals, arguing insufficient evidence to support one of his second degree assault convictions and that his constitutional right to due process was violated because the trial court did not require a competency evaluation. He also requests a new trial due to jury prejudice, prosecutorial misconduct, and a Miranda violation in a statement of additional grounds (SAG). We affirm.
Miranda v. Arizona, 384 U.S. 436, 444, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
On February 20, 2005, Michelle Anderson told her then husband, Robert, that she wanted a divorce. Michelle drove to Christopher Concannon's home, crying and upset. Robert followed her and tried to enter the home but Concannon told him to stay outside.
We use first names to avoid confusion. We mean no disrespect.
A few minutes later, Robert opened Concannon's front door and entered the living room. Concannon stepped toward Robert and told him he did not want him in his home. When Concannon saw that Robert had a gun, he turned, ran out of the living room, down the hall, and jumped out a closed window.
Robert then grabbed Michelle by the throat, pushed her against the wall, put the gun to her head, and threatened to kill her. He continued threatening her and threw her on the floor. The police arrived on the scene, realized it was a hostage situation, and called the SWAT team. A hostage negotiator arrived and spoke with Robert for approximately two hours, until Robert finally released Michelle.
Robert was charged with (1) first degree burglary; (2) first degree kidnapping; (3) second degree assault against Michelle; (4) second degree assault against Concannon; and (5) unlawful imprisonment. Before trial, Robert's counsel requested a continuance questioning Robert's competency to stand trial. The trial court granted the continuance and ordered a competency evaluation, noting that, "I don't think I have a lot of choice" about whether to grant the motion. 1 Report of Proceedings (RP) at 16, 18. Because of Robert's medical problems and his counsel's request that his expert evaluate Robert's competence first, the evaluation was initially delayed. Ultimately, the evaluation never occurred and Robert's counsel argued diminished capacity. He explained that Robert's diminished capacity was a mitigating factor for sentencing that the jury should determine, not the trial court. The court ruled that mitigating factors are determined by the court, not the jury, and did not allow the jury to hear evidence of Robert's alleged diminished capacity.
A jury found Robert guilty of first degree burglary, first degree kidnapping, second degree assault against Michelle, and second degree assault against Concannon. The jury also returned special verdicts, finding that Robert possessed a firearm when he committed the crimes.
At sentencing, Robert's counsel submitted Robert's medical reports, arguing that his sentence should be mitigated due to his medical condition. The court noted that Robert suffered health problems and depression but did not find diminished capacity. The court sentenced Robert to the minimum possible sentence under the standard range, which was 228 months.
ANALYSIS
I. Due Process Right
Robert first argues that his constitutional right to due process was violated because his competency to stand trial was at issue and the trial court did not ensure a competency evaluation. He asserts that, under RCW 10.77.060(1)(a), the court was required to order a competency evaluation if there was reason to doubt his competency and that the trial court erred by not requiring an evaluation. Relying on Fleming and Marshall , the State disagrees. It argues that there was nothing to suggest that Robert was incompetent to stand trial and the trial court did not make any comments in the record indicating a serious concern about Robert's competency.
In the Pers. Restraint of Fleming, 142 Wn.2d 853, 16 P.3d 610 (2001).
State v. Marshall, 144 Wn.2d 266, 27 P.3d 192 (2001).
The Fourteenth Amendment's due process clause prohibits the conviction of a person who is not competent to stand trial. Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed 2d 103 (1975). Procedures of the competency statute are mandatory and not merely directory. State v. Wicklund, 96 Wn.2d 798, 805, 638 P.2d 1241 (1982). "Thus, once there is a reason to doubt a defendant's competency, the court must follow the statute to determine his or her competency to stand trial." City of Seattle v. Gordon, 39 Wn. App. 437, 441, 693 P.2d 741 (1985). If the court fails to follow procedures designed to protect an accused's right not to be tried while incompetent to stand trial, it denies a defendant's right to due process. State v. O'Neal, 23 Wn. App. 899, 901, 600 P.2d 570, (1979) (citing Drope, 420 U.S. at 162; Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966)).
ch. 10.77 RCW.
Whether a competency examination should be ordered rests within the trial court's discretion. State v. Thomas, 75 Wn.2d 516, 518, 452 P.2d 256 (1969). The factors a trial judge may consider in determining whether to order a formal inquiry into the competence of an accused include the "defendant's appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and the statements of counsel." State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967). The two-part test for legal competency for a criminal defendant in Washington is (1) whether the defendant understands the nature of the charges; and (2) whether he is capable of assisting in his defense. State v. Hahn, 106 Wn.2d 885, 894, 726 P.2d 25 (1986); State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985).
On July 19, 2005, the trial court ordered a competency evaluation. The trial court ordered Robert to be transported to Western State Hospital for an evaluation, which was to occur after the defense psychological or neuropsychological evaluations, but the procedure was not to exceed 15 days. The court then issued multiple transportation orders allowing the defense evaluation. The last such order dated November 9, 2005. Despite this, the evaluation never occurred.
We hold that Robert's counsel withdrew the competency issue by delaying the defense evaluation and in oral argument before the trial court. It is discretionary for the trial court to enter an evaluation order, and the trial court's best practice would be to also issue a finding on competency after the order. However, any error here is harmless error because defense counsel withdrew the competency issue before trial. We find no error.
II. Second Degree Assault Conviction
Robert next argues that the evidence was insufficient to support his conviction for second degree assault against Concannon. He asserts that second degree assault requires an intentional act and that there is no evidence that he directed any of his actions against Concannon. He contends that all of his actions were directed at Michelle.
Robert was convicted of second degree assault under RCW 9A.36.021(1)(c). Under the statute, "A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . Assaults another with a deadly weapon." RCW 9A.36.021(1)(c).
In Washington, assaults can occur by attempting to frighten or by actually harming another person. State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). Here, the jury was instructed that, "An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury . . ." 2 Clerk's Papers (CP) at 214. Robert argues that the evidence was insufficient to convict him of assault under this instruction.
Evidence is sufficient to support a conviction if, 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 the sufficiency of evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in the State's favor and interpreted strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (en banc). Accordingly, we must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
At trial, Robert admitted he took a gun into Concannon's house. Concannon testified that, after Robert opened the front door and entered his house, he then took a step toward Robert and ordered him out of the house. Robert then took a step forward and brought out a gun. Concannon explained that he then ran from Robert because of "[t]he total stare that he was giving to me, and then seeing the gun being pulled out to me (indicating)." 2 RP at 91.
Q: Were you in apprehension of any fear that he might do something with [the gun]?
A: I was in complete fear.
. . .
Q: Do you recall him actually pointing it at you?
A: I never let it get that far.
Q: Was he coming towards you?
A: Yes, he was, he was walking. Well, he took a step towards me and pulled the gun out, and that's when I ran down the hallway.
2 RP at 91-92.
Michelle also testified that when Robert pulled the gun out, he was headed in Concannon's direction. She explained, "he was goin' down the hallway — or in [Concannon's] direction." 2 RP at 114.
We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence, even though Robert denies assaulting Concannon, sufficient evidence existed that Concannon reasonably believed that Robert was attempting to inflict bodily injury when he stepped toward him and pulled out a gun. Thomas, 150 Wn.2d at 875 (citing Cord, 103 Wn.2d at 367). Considering the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that Robert was unlawfully in Concannon's house and committed an assault by attempting to frighten Concannon. Byrd, 125 Wn.2d at 712.
III. SAG Issues
In a SAG, Robert argues that the jury was prejudiced against him because the trial court allowed the jury to hear testimony from an officer that Robert was upset and yelling, "I am not going back to prison," and because the prosecutor told the jury a false statement twice during closing argument. SAG at 1.
A. Prosecutorial Misconduct
Granting a new trial based on prosecutorial misconduct allegations is within the trial court's sound discretion. State v. Carr, 13 Wn. App. 704, 709, 537 P.2d 844 (1975). A new trial should be granted only if the defendant's right to a fair trial was prejudiced. State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991). The trial court is in the best position to most effectively determine if prosecutorial misconduct prejudiced a defendant's right to a fair trial. Carr, 13 Wn. App. at 709. Robert's conviction must be reversed only if there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict. State v. Wood, 44 Wn. App. 139, 145, 721 P.2d 541 (1986).
Officer Boyington, the hostage negotiator, testified that Robert said to her, "I'm not goin' back to prison." 3 RP at 206. Defense counsel moved for a mistrial because the statement was highly prejudicial since Robert had never been to prison before. The court denied the motion and instead issued a curative instruction informing the jury that Robert had never been to prison, that the witness misspoke, and that Robert said he was afraid of going to prison, not going back to prison. There was no abuse of discretion in denying the motion for a new trial because a curative instruction was issued and no prejudice likely occurred.
Robert does not indicate what "false statement" he is referring to in his SAG. SAG at 1. Defense counsel moved for a mistrial after closing arguments because the prosecutor misquoted the curative instruction related to Officer Boyington's testimony and it is likely that Robert is referring to this argument in his SAG. Based on the record, the trial court did not abuse its discretion in denying Robert's motions for a mistrial.
B. Miranda Warnings
Robert also argues in his SAG that he was not read his Miranda rights. Because Robert's statements to the police after arrest were not admitted at trial we need not address this issue.
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.
BRIDGEWATER, P.J. and QUINN-BRINTNALL, J. concur.