Opinion
65377-6-I
02-06-2012
STATE OF WASHINGTON, Respondent, v. RICHARD ZOLAND BOWEN, Appellant.
UNPUBLISHED OPINION
Leach, A.C.J.
Richard Z. Bowen appeals his conviction for second degree assault. Bowen claims that the jury instruction defining recklessness relieved the State of its burden to prove every element of this crime by creating a mandatory presumption. Bowen also claims that the court lacked authority to impose a 24 to 48 month community custody term for second degree assault. In addition, he contends that the court's assessment of a $100 domestic violence penalty violated his right to a jury determination of a factual issue that increased the punishment imposed. Finally, he objects to the court's assessment of a jury demand fee and criminal filing fee without proper consideration of his ability to pay.
As a preliminary matter, the prosecution submitted a motion to strike portions of the appellant's opening brief that cite a study on the effect of legal financial obligations on defendants. Bowen did not present this evidence at trial, and it is not part of the record on review. Because the court cannot rely on material outside the record, we grant the motion to strike. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
We affirm the judgment and imposition of court fees and remand for correction of the community custody term to reflect the statutorily prescribed term of 18 months.
Background
In February 2010 Bowen struck his girl friend, Alison Black, on the legs and torso with a tree branch and a golf club multiple times over several days. When Black asked if she could leave the house, Bowen told her to lie on the bed with him, next to the wall, so that she could not leave. Bowen then took a nap, but Black did not try to escape for fear of waking him. When Bowen awoke, he escalated his violence, and Black eventually fled to a neighbor's house. The neighbors called police. The State charged Bowen with second degree assault and unlawful imprisonment.
At trial, the court's instructions to the jury included the following instructions relating to second degree assault:
Instruction No. 7
A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and the disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.
Recklessness also is established if a person acts intentionally or knowingly.
Instruction No. 10 To convict the defendant of the crime of Assault in the Second Degree, County I [sic], each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 5th day of February, 2010 the defendant intentionally assaulted Alison Black and thereby recklessly inflicted substantial bodily harm; and
(2) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty;
On the other hand, if after weighing all of the evidence you have a reasonable doubt as to either one of these elements then it will be your duty to return a verdict of not guilty.
A jury convicted Bowen of second degree assault, as well as unlawful imprisonment. He received a 24 to 48 month community custody term, and the court assessed various legal financial obligations, including a domestic violence penalty, criminal filing fee, and jury demand fee. He appeals the assault conviction and argues that the court erred when it assessed court fees against him without evidence and a finding of fact that he had the ability to pay.
Analysis
Recklessness Jury Instruction
Bowen argues for the first time on appeal that the jury instructions for second degree assault violated due process by creating a mandatory presumption that finding he acted with the intent to assault Alison Black necessarily required a finding that he recklessly inflicted substantial bodily harm.
Generally, to preserve error for consideration on appeal, the party alleging error must call it to the trial court's attention at a time that will afford the court an opportunity to correct it. But a manifest error of constitutional magnitude may be challenged for the first time on appeal. Due process requires proof beyond a reasonable doubt of every element of the crime charged. A mandatory presumption eliminates the State's burden of proving every element of the crime beyond a reasonable doubt. If Bowen is correct, the claimed error is of constitutional magnitude and may be raised for the first time on appeal.
State v. Fagalde, 85 Wn.2d 730, 731, 539 P.2d 86 (1975).
RAP 2.5(a)(3).
In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
State v. Holzknecht, 157 Wn.App. 754, 760-62, 238 P.3d 1233 (2010), review denied, 170 Wn.2d 1029, 249 P.3d 623 (2011).
"We review a challenged jury instruction de novo, evaluating it in the context of the instructions as a whole." It is reversible error to give a jury instruction that relieves the State of its burden to prove every essential element of the crime beyond a reasonable doubt. Bowen argues that the instructions on "recklessness" created an unconstitutional mandatory presumption that relieved the State of its burden. A mandatory presumption requires the jury "to find a presumed fact from a proven fact." To determine whether a jury instruction creates a mandatory presumption, we examine whether a reasonable juror would interpret the presumption as mandatory.
State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
Pirtle, 127 Wn.2d at 656.
State v. Deal, 128 Wn.2d 693, 699, 911 P.2d 996 (1996).
Deal, 128 Wn.2d at 701.
The jury instructions for second degree assault followed Washington pattern jury instructions. Bowen argues that instructions 7 and 10 improperly placed no limit on the intentional or knowing acts that the jury could rely on to establish the element of recklessness. In other words, because these instructions did not specify that recklessness is also established by proof that a person acted intentionally or knowingly to establish substantial bodily harm, these instructions improperly allowed the jury to find Bowen recklessly inflicted substantial bodily harm if it found that he intentionally or knowingly assaulted Black. He cites State v. Hayward to support his claim that the jury instructions conflated the mental state of intent the jury had to find for Bowen's assault on the victim with the separate mental state of recklessness the jury had to find with respect to causing substantial bodily harm.
See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 35.12, at 469; 10.03, at 209 (3d ed. 2008) (WPIC).
152 Wn.App. 632, 642, 217 P.3d 354 (2009) (citing State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004)).
We recently considered this issue in State v. Holzknecht. There, the court instructed the jury that to convict Holzknecht of second degree assault, it must find an intentional assault and reckless infliction of substantial bodily harm. Like the instructions at issue here, an instruction in Holzknecht also stated, "Recklessness is also established if a person acts intentionally or knowingly." The court found the jury instructions
157 Wn.App. 754, 238 P.3d 1233 (2010), review denied, 170 Wn.2d 1029, 249 P.3d 623 (2011).
Holzknecht, 157 Wn.App. at 761.
Holzknecht, 157 Wn.App. at 761-62.
followed the statute and correctly informed the jury of the applicable law, including the rule that a mental state is established by proof of a more serious mental state. The instructions made clear that a different mental state must be determined for each element: intent as to assault, and recklessness as to infliction of substantial bodily harm. The instructions thus clearly require two separate inquiries, and nothing in the knowledge instruction suggests otherwise. . . . .
The instructions did not create a mandatory presumption or relieve the State of its burden of proof.
Holzknecht, 152 Wn.App. at 766.
Here, as in Holzknecht, instruction 10 correctly states the elements of second degree assault and instructs the jury to consider a separate mental state for the assault and the injury. Instruction 7 correctly states that proof of an intentional or knowing mental state establishes a reckless mental state. Nothing in the two instructions conflates the mental state required for the assault with the mental state required with respect to the consequent injuries. Therefore, we hold that the jury instructions did not violate Bowen's constitutional due process rights because they did not create a mandatory presumption.
Community Custody Sentencing
Bowen argues, and the State concedes, that the trial judge incorrectly believed second degree assault to be a serious violent offense under the statutory sentencing scheme. Rather, former RCW 9.94A.030(29)(b) (2009)identifies second degree assault as a violent offense. RCW 9.94A.701(2) mandates that "[a] court shall, in addition to the other terms of the sentence, sentence an offender to community custody for eighteen months when the court sentences the person to the custody of the department for a violent offense that is not considered a serious violent offense." We remand to the trial court to correct the term of the sentence.
This is the statute in effect at the time the crime was committed.
Validity of Imposing Legal Financial Obligations and Discretionary Fees
Bowen relies on RCW 10.01.160 and argues that his need for court- appointed counsel and his declaration of indigency for appeal were sufficient to show he does not have the ability to pay the court fees imposed. Bowen failed to object to the fees at that time or to present evidence that he was unable to pay fees. Because the imposition of fees is not a manifest error of constitutional magnitude, the issue is not properly before the court.
Conclusion We affirm Bowen's conviction and the imposition of fees but remand for correction of the community custody sentence in accordance with our opinion.