Opinion
No. 61048-1-I.
November 17, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-01094-1, Larry E. McKeeman, J., entered December 20, 2007.
Affirmed by unpublished per curiam opinion.
Marcus David challenges his conviction for first degree burglary with a deadly weapon enhancement. He contends there was insufficient evidence to show a nexus between himself, the crime, and the knife found in his pocket. He also raises other issues in a pro se statement of additional grounds. Concluding that David's arguments are without merit, we affirm.
FACTS
On April 22, 2007, around 1:30 a.m., Amanda Bailey heard a knock on her door. Expecting her boyfriend, Bailey opened the door. She testified that instead of finding her boyfriend, she saw a stranger, and "He kind of — He pushed himself through the door," into her apartment. Report of Proceedings (RP) (Oct. 29, 2007) at 39. Bailey observed that the man was intoxicated and bleeding from his head. She testified that he kept asking her if he could use her phone, but she told him to leave. He then began to hit her repeatedly. When Bailey began screaming, the man fled. She then called 911.
The police arrived at 1:39 a.m. They quickly apprehended Marcus David, who Bailey identified as the man who had assaulted her. In a search incident to arrest, police officers found a Smith and Wesson folding knife in one of David's pant pockets. The knife's blade measured three and a quarter inches. David did not use the knife in his encounter with Bailey or during his arrest.
As one of his statements of additional grounds, David asserts that the blade was only three inches long. But we reject this argument as discussed below.
The State charged David with burglary in the first degree with a deadly weapon enhancement. At the conclusion of the State's case, David moved to strike the deadly weapon enhancement based on the contention that "there is no evidence whatsoever to connect the knife . . . to the alleged crime of burglary in the first degree." RP (Oct. 30, 2007) at 172. The court denied the motion. David called no witnesses and presented no evidence. With respect to the deadly weapon enhancement, the jury was instructed:
A person is armed with a deadly weapon if, at the time of the commission of the crime, the weapon is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there was a connection between the weapon and the defendant. The State must also prove beyond a reasonable doubt that there was a connection between the weapon and the crime. In determining whether this connection existed, you should consider the nature of the crime, the type of weapon, and the circumstances under which the weapon was found.
Jury Instruction 17.
During deliberations, the jury submitted two questions to the court. First, the jury asked, "In the opinion of the court, [does] possession of a weapon at the time of the crime satisfy the definition that the connection exists[?]" Clerk's Papers (CP) at 93. The court responded, "Please refer to the instructions already given." Id. Later, the jury asked, "What is the law about possessing a deadly weapon that is not used during a crime? We are struggling with the word connection. May we have a legal explanation please[?]" The court responded, "The court can only refer you back to the instructions already given." Id. at 92. The jury ultimately convicted David of first degree burglary and found by special verdict that he was armed with a deadly weapon at the time of the crime. The court imposed a standard range sentence of 77 months, plus 12 months based on the deadly weapon enhancement. David appeals.
ANALYSIS
If a jury finds that a defendant was armed with a deadly weapon during the commission of a crime, the defendant's sentence is increased pursuant to RCW 9.94A.510(3). But because people are generally entitled to possess certain weapons, the State cannot use mere possession against a person who is prosecuted for an unrelated crime. State v. Johnson, 94 Wn. App. 882, 892, 974 P.2d 855 (1999); see also State v. Eckenrode, 159 Wn.2d 488, 493, 150 P.3d 1116 (2007) ("a person is not armed merely by virtue of owning or even possessing a weapon"). To establish that a defendant was "armed" with a deadly weapon for purposes of the sentencing enhancement, the State must prove both that the weapon was easily accessible and readily available for offensive or defensive use and that there was a nexus or connection between the defendant, the weapon, and the crime. Where the State is able to prove actual, as opposed to constructive, possession of the weapon, it will rarely need to do more to establish the requisite connection. See State v. Easterlin, 159 Wn.2d 203, 209, 149 P.3d 366 (2006) (giving examples of unusual situations where the presence of a deadly weapon in a defendant's possession during the commission of a crime may be merely coincidental and unconnected to the underlying crime such as having a kitchen knife in a picnic basket).
Here, David argues that the State failed to prove there was a connection between the knife and the crime. He contends that there was "no evidence whatsoever that [he] intended to use the knife in his pocket to further the commission of the charged burglary, or even that he knew the knife was in his pocket." Br. of Appellant at 6-7. When reviewing a challenge to the sufficiency of the evidence, we must determine, considering the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. State v. Williams, 137 Wn. App. 736, 743, 154 P.3d 322 (2007). We draw all reasonable inferences from the evidence in the prosecution's favor and interpret the evidence most "`strongly against the defendant.'" State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We assume the truth of the prosecution's evidence and all inferences that the trier of fact could reasonably draw from it. State v. Allen, 90 Wn. App. 957, 960, 955 P.2d 403 (1998). We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses. State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998). Circumstantial evidence is as probative as direct evidence. State v. Vermillion, 66 Wn. App. 332, 342, 832 P.2d 95 (1992).
In this case, while the jury initially questioned what connection was required between the knife and the crime, it ultimately found that the requisite connection existed. From our review of the record, we conclude that there is sufficient evidence to support the jury's finding. There was testimony that David entered Bailey's apartment and assaulted her. There was testimony that the police apprehended him a short time later in the same general vicinity and found the knife in his pocket. A rational jury could infer that David committed the offense with the knife in his pocket, that he knew it was there, and that he brought the knife with him to facilitate his crime or prevent his apprehension. It is not necessary that a defendant actually use or threaten to use the weapon. See, e.g., State v. Schelin, 147 Wn.2d 562, 574-75, 55 P.3d 632 (2002) (upholding sentencing enhancement because defendant could have used the firearm in his home to protect his drug operation from police). Nor is it necessary for the State to produce direct evidence of a defendant's intent. Easterlin, 159 Wn.2d at 210. "So long as the facts and circumstances support an inference of a connection between the weapon, the crime, and the defendant, sufficient evidence exists." Id. Here, there is sufficient evidence to support the jury's finding.
David relies on State v. Brown, 162 Wn.2d 422, 173 P.3d 245 (2007), but that case is readily distinguishable based on its facts. In Brown, the defendant did not bring the weapon with him when he burglarized the victim's home. The weapon belonged to the victim, and the evidence suggested that the defendant regarded it as valuable property, not a weapon he could use in furtherance of the crime.
David also advances several arguments for reversal of his conviction in a pro se statement of additional grounds. First, he contends that the trial court abused its discretion in ruling that evidence of domestic violence against his former girl friend would be admissible if he called her to testify on his behalf. The trial court ruled that this was a legitimate area of inquiry to the extent the evidence was offered to show that the witness was motivated to testify favorably towards David out of her fear of him. This was not manifestly unreasonable or untenable, so the trial court did not abuse its discretion. Second, David argues that reversal is appropriate due to "prosecutorial misconduct." He contends that the prosecutor made a comment during his closing argument that David's occupation was being a burglar. But the record indicates that the prosecutor's statement was actually that David's "occupation at that point involved that sort of danger [where a knife could be used]." RP (Oct. 31, 2007) at 250. The prosecutor did not prejudice David by indicating he had been a burglar in the past; he carefully limited the temporal scope of his comment. This comment does not amount to prosecutorial misconduct or provide a basis for reversal.
Third, David asserts that his trial counsel was ineffective because he did not submit sufficient evidence of David's intoxication. But Bailey, the police officers, and several other witnesses testified that David appeared to be under the influence on the night of the incident. David's counsel ably argued that due to extreme intoxication,
David could not have formed the requisite intent to commit the crime. Nevertheless, the jury was not persuaded and found him guilty. There is no reason to believe that additional evidence of David's intoxication would have changed this result. David's other complaints about his attorney are also without merit.
Fourth, David contends that there was "investigative misconduct" by the police. He argues that the officers did not ensure that statements from the witnesses at the scene were sufficiently complete. But at trial, there was no showing that he was prejudiced by the alleged deficiency.
Fifth, David argues that the jury was biased against him based on its lack of racial diversity. But David has the burden of proving discrimination occurred in his case. State v. Rogers, 44 Wn. App. 510, 517, 722 P.2d 1349 (1986). He does not allege that there was purposeful exclusion of potential jurors based on their race through peremptory challenges or any other method. It is not enough that there were no members of his race on the jury. State v. Sellers, 39 Wash. App. 799, 802, 695 P.2d 1014 (1985).
Sixth, David states that there was insufficient evidence to show that he entered Bailey's apartment. He points out that one witness testified that she saw the assault occur in front of Bailey's home. But Bailey contradicted this, testifying that David did enter her apartment. We defer to the jury on issues of credibility, conflicting testimony, and the persuasiveness of the evidence. State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000). Bailey's testimony provides sufficient evidence to support the jury's verdict.
Lastly, David contends that the knife was not long enough to qualify as a deadly weapon. He asserts that the investigating officer "wasn't informed to measure the blade alone," but the record contradicts this assertion. Statement of Additional Grounds, at 4. Officer Martinez testified that he measured the blade portion of the knife as being three and a quarter inches long. The jury found that the knife's blade was longer than three inches, making it an automatic or per se deadly weapon. RCW 9.94A.602.
For the foregoing reasons, we affirm.