Opinion
No. 27895-6-III
10-06-2011
STATE OF WASHINGTON, Respondent, v. CHRISTOPHER DEAN BROWN, Appellant.
UNPUBLISHED OPINION
Korsmo, J. — Christopher Brown's appeal of his convictions for third degree assault and two counts of unlawful possession of controlled substances has been overtaken by developments in the law of search and seizure. We affirm the assault conviction and remand the other charges for a suppression hearing that will determine if those convictions stand or fall.
FACTS
This case has its genesis in a traffic stop that occurred May 2, 2008. Spokane County Sheriff's Sergeant Matthew Lyons stopped Mr. Brown for speeding and obtained his driver's information. When the sergeant started to return to his car, Mr. Brown told him in an "icy" voice: "I've got something for you." He reached over and the sergeant saw a gun between the passenger seat and the center console. Mr. Brown grabbed the gun by the handle, put his finger on the trigger and swung it toward the sergeant, who backed up and drew his own gun. Mr. Brown's gun hit the roof of the car and was jarred out of his hand; it landed outside the car on the road.
The gun was an air pistol that shot pellets; it was designed to look like a Smith & Wesson firearm.
Sergeant Lyons pulled Mr. Brown from the car and handcuffed him. Deputy Brett Hubbell arrived and took over the case. He searched Mr. Brown and discovered $327 in cash on him. He searched the interior of the car and found packages of crack cocaine. The car was impounded and towed away. The tow truck driver subsequently inventoried the vehicle and discovered a small safe in the trunk. The safe was opened using Mr. Brown's keys. Inside were hypodermic needles, blades with white powder on them, and 197 one dollar bills. Report of Proceedings at 85-86.
The towing company reported these discoveries to the sheriff's office. A search warrant was obtained and the items were taken into evidence. Charges were filed and Mr. Brown eventually faced a jury on charges of third degree assault, possession of a controlled substance (cocaine) with intent to deliver, and possession of a controlled substance (hydrocodone). Defense counsel argued that Mr. Brown did not assault the officer with the pellet gun and that the evidence did not show that he intended to deliver the cocaine found in the car. Rather, he was a drug user, not a drug dealer.
The original jury could not agree on the assault or delivery charges, but did find Mr. Brown guilty of the lesser included offense of possession of cocaine and also found him guilty on the hydrocodone charge. The assault count was retried and Mr. Brown was found guilty of third degree assault.
He timely appealed to this court, which heard oral argument in March 2010. The case was then stayed pending the outcome of State v. Robinson, 171 Wn.2d 292, 253 P.3d 84 (2011). After Robinson was released, the parties filed supplemental briefs and this court then considered the case without additional argument.
ANALYSIS
This appeal presents two challenges. First, Mr. Brown argues that the evidence was insufficient to support the assault verdict. Second, he contends that the search of his car was improper and that the evidence supporting the two drug counts should be suppressed and those charges dismissed. We will address each argument in turn.
Assault
Mr. Brown argues that the evidence does not support the jury's verdict on the assault count, contending that at most he was guilty of attempted assault. We disagree.
Well established standards govern our review of this issue. A reviewing court does not weigh evidence or sift through competing testimony. Instead, the question presented is whether there is sufficient evidence to support the jury's determination that each element of the crime was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. Id.
As charged here, the State was required to prove the following elements to establish third degree assault:
(1) That on or about March 2, 2008, the defendant assaulted Matt Lyons;Clerk's Papers (CP) at 57 (Instruction 3).
(2) That at the time of the assault Matt Lyons was a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties; and
(3) That any of these acts occurred in the State of Washington.
The court also instructed the jury on the definition of assault:
An assault is an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.CP at 59 (Instruction 5).
The only contested element is whether Mr. Brown assaulted Sergeant Lyons, who admittedly was a law enforcement officer performing his official duties in the State of Washington at the time of the incident. According to Mr. Brown, he is guilty of only attempted assault because he knocked the weapon out of his own hand while attempting to point it at the officer. He incorrectly focuses on the efficacy of his actions rather than the effect of those actions.
As noted above, an assault (as charged here) is an act done with the intent of creating a reasonable apprehension in another person. While we agree with Mr. Brown that the act of pointing a realistic-looking air gun at a person would constitute an assault, that is not the fact pattern we have here. Instead, the jury concluded that Mr. Brown's actions in taking a gun into his hand, announcing that he has something for the sergeant, and turning in an effort to point the gun constituted assault. We review those actions to see if they constituted an assault.
The above-described evidence satisfied the definition of assault. It certainly created an apprehension in Sergeant Lyons that he was about to be shot; the officer drew his own weapon and showed remarkable restraint in not shooting Mr. Brown. The sergeant's fear was also very reasonable. The act of drawing a weapon and attempting to point it at a victim can constitute an assault. The fact that the weapon never got pointed at the victim, whether due to the victim's intervention or the assailant's ineptitude, is of no moment. The question is whether the action created a reasonable apprehension in the victim. We agree with the jury that Mr. Brown's actions did so in this case.
The efforts Mr. Brown made were sufficient to constitute an assault. The evidence supports the jury's determination.
Car Search
The remaining issue involves the search of the interior of the car after Mr. Brown's arrest for assaulting an officer. Robinson dictates our decision.
Mr. Brown did not challenge the search of the car in the trial court. On appeal, however, he argued that he deserved the benefit of the intervening decision in Arizona v. Gantt, 556 U.S. 332, 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009). There the court, in a break with its past precedent, limited the scope of searches of the interior of a vehicle in response to the arrest of a driver. Robinson presented the question whether or not a defendant must preserve a search issue by raising a trial court challenge.
Noting traditional error preservation cases, Robinson ruled that there was no need to preserve a search challenge when (1) a material change in constitutional law relevant to the case (2) overrules an existing interpretation (3) applies retroactively, and (4) the defendant's trial was completed prior to the new decision. 171 Wn.2d at 305. In such circumstances, the court determined that it was appropriate to allow the defendants to present a suppression motion to the trial court. Id. at 306. The court remanded the matters to the trial court to conduct suppression hearings, with the result of the cases dependent upon the outcome of the hearings. Id. at 307.
This case is similarly situated to Robinson, although both sides here ask us to rule in their respective favor without remanding to the trial court. This we will not do because appellate courts do not find facts. Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009), review denied, 168 Wn.2d 1041 (2010). The facts necessary to decide the suppression motion have not been found by the trial court, even though much of what the officers can be expected to testify about was discussed during trial. Noticeably lacking is evidence of the rationale for the search. This case is also complicated by the fact that there was a second, and unchallenged, inventory search by towing personnel that led to a search warrant being issued. On this record, we cannot tell what evidence before the jury came from that search and what evidence came from the initial searches by law enforcement officers at the scene.
As in Robinson, the two drug counts are remanded for a suppression hearing, with the trial court to enter appropriate findings to support its ruling. CrR 3.6(b). If the court upholds the search, the convictions stand. If the court grants the motion to suppress, it can order a new trial or dismiss the charges, depending on whether any admissible evidence still exists. Any party aggrieved by the trial court's decision can appeal to this court. In light of Mr. Brown's offender score, resentencing on the assault count will not be required even if the drug counts are dismissed.
Affirmed in part; remanded for further proceedings consistent with this opinion.
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.
Korsmo, J.
WE CONCUR:
Kulik, C.J.
Sweeney, J.