Opinion
No. 23755-9-III.
June 22, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 03-1-02870-4, Michael P. Price, J., entered December 21, 2004.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Affirmed by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Schultheis, J.
Tarina L. Cauvel appeals her first degree burglary conviction on insufficient evidence grounds. As additional grounds for review, Ms. Cauvel raises ineffective assistance of counsel. Finding no error, we affirm.
FACTS
Ms. Cauvel was a substitute teacher. Five years after subbing for Julie Kinzer, Ms. Cauvel approached her at a nightclub and told her she was in love with her. Ms. Kinzer did not recall Ms. Cauvel. Against Ms. Kinzer's express wishes, Ms. Cauvel began repeatedly calling Ms. Kinzer, stopping by her home, and visiting her school.
Just before midnight on August 7, 2003, Ms. Kinzer was awakened by yelling and pounding on her door. Ms. Kinzer's roommate, Kami Holstrom, went to the door while Ms. Kinzer called 911. Ms. Holstrom firmly told Ms. Cauvel to go away. Ms. Cauvel refused. When Ms. Holstrom opened the door, Ms. Cauvel pushed against the door and shoved Ms. Holstrom down the stairs. Ms. Cauvel went upstairs to the bedroom where another physical struggle ensued between Ms. Cauvel and Ms. Holstrom. Ms. Holstrom retrieved a gun from under the bed, pointed it at Ms. Cauvel, and told her to leave. Ms. Cauvel showed no emotion to the gun being pointed at her.
Ms. Cauvel refused to exit the home when ordered by the responding police officers, so she was forcibly removed from the residence. She told one of the arresting officers she was sent by God to save Ms. Kinzer. Ms. Cauvel was charged with first degree burglary and obstructing a law enforcement officer.
At trial, defense witness Dr. E. Clay Jorgensen testified Ms. Cauvel had previously been treated for depression, testifying she suffered from a `schizo type of personality disorder.' Report of Proceedings at 185. Based on Ms. Cauvel's reality distortions, Dr. Jorgensen opined she lacked the necessary specific intent. In rebuttal, State's witness Dr. Daniel J. Lord-Flynn testified Ms. Cauvel had a mood and personality disorder, and abused alcohol; he opined Ms. Cauvel had the ability to formulate the intent to commit first degree burglary.
The jury found Ms. Cauvel guilty as charged. Ms. Cauvel appealed, but assigned no error to the obstruction conviction.
ANALYSIS
A. Evidence Sufficiency
The issue is whether sufficient evidence supports Ms. Cauvel's first degree burglary conviction. Ms. Cauvel contends insufficient evidence supports the intent element of first degree burglary. She argues her irrational actions and Dr. Jorgensen's testimony support the conclusion she did not have the necessary intent.
Evidence sufficiency challenges are reviewed in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Ms. Cauvel admits the truth of the State's evidence and all reasonable inferences. Id. We defer to the trier of fact and will affirm if the facts support the essential crime elements beyond a reasonable doubt. State v. Walton, 64 Wn. App. 410, 415, 824 P.2d 533 (1992).
A person commits first degree burglary, `if, with intent to commit a crime against a person or property therein, he . . . enters or remains unlawfully in a building and if, in entering . . . or in immediate flight therefrom, the actor . . . (a) is armed with a deadly weapon, or (b) assaults any person.' RCW 9A.52.020(1).
Intent may be inferred from all the facts and circumstances surrounding the defendant's conduct. State v. Lewis, 69 Wn.2d 120, 123, 417 P.2d 618 (1966). Conduct plainly indicating the required intent as a matter of logical probability supports an intent inference. State v. Bergeron, 105 Wn.2d 1, 20, 711 P.2d 1000 (1985).
Dr. Lord-Flynn testified Ms. Cauvel possessed the ability to form the required intent. The trier of fact is in the best position to evaluate conflicting evidence, witness credibility, and the weight to be assigned to the evidence. Walton, 64 Wn. App. at 415-16. Ms. Cauvel traveled to Ms. Kinzer's home in the middle of the night to visit Ms. Kinzer. Her conduct that night was described to the jury in detail. That conduct logically indicates the required intent. Bergeron, 105 Wn.2d at 20. Accordingly, sufficient evidence supports the jury's finding of guilt for first degree burglary.
B. Assistance of Counsel
Ms. Cauvel apparently raises an ineffective assistance of counsel claim in her additional grounds, relating her personal physicians should have been witnesses.
Ms. Cauvel must show both deficient counsel performance, that falling below an objectively reasonable standard under the facts, and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We strongly presume effective representation. McFarland, 127 Wn.2d at 335. Counsel's strategic and tactical decisions do not support ineffective assistance claims. Id. at 336.
Deciding whether or not to call a witness is a tactical decision. State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981). Considering Dr. Jorgensen's expertise and references to Ms. Cauvel's prior treatment, her counsel's decision appears well supported. Ms. Cauvel does not specify what new information her other care providers could supply. Considering the likely cumulative nature of her other care givers, Ms. Cauvel does not show how the outcome would differ. Accordingly, she does not show prejudice from her counsel's performance. In sum, Ms. Cauvel received effective assistance of counsel.
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.
SWEENEY, C.J. and SCHULTHEIS, J., concur.