Opinion
No. 57673-9-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-06386-4, Douglas D. McBroom, J., entered January 20, 2006.
Affirmed by unpublished per curiam opinion.
Rigoberto Garcia-Lopez appeals one of his assault convictions on the grounds that the State did not present substantial evidence to prove all three common law definitions of assault and it was not clear that the jury unanimously agreed on the proved means. But because the Washington Supreme Court recently decided that the three common law definitions of assault are not alternative means, and therefore do not implicate a unanimity problem or require substantial evidence for each means, we affirm Garcia-Lopez's conviction.
FACTS
Two groups of people began fighting in Pioneer Square, and Garcia-Lopez was the only person armed during the altercation. He stabbed Christopher Malone and repeatedly swung his knife at Stephen Harvey.
According to Harvey, Garcia-Lopez approached him within 10 feet and flipped the knife blade open before swinging it at him. Harvey protected his head and vital areas with his hands and avoided contact with Garcia-Lopez by jumping back. Garvey testified that due to his martial arts training, he did not fear
Garcia-Lopez.
Garcia-Lopez testified that Harvey and three other men approached him. Garcia-Lopez testified that Harvey raised his fists and that he thought Harvey wanted to fight him. Garcia-Lopez said he did not want to run away from Harvey because he was afraid to turn his back, but instead swung his knife at Harvey in self-defense.
Garcia-Lopez was charged with one count of second degree assault for the stabbing of Malone and another count of second degree assault for swinging the knife at Harvey. He argued self-defense on both charges. He timely appeals only the count related to Harvey.
ANALYSIS
Alternative Means and Unanimity
In a pro se statement of additional grounds for review, Garcia-Lopez recounts his version of the altercation with Malone and Garvey. This statement is consistent with his trial testimony, but does not make any legal arguments or present grounds for appeal. Therefore, the only ground on appeal is the unanimity issue raised by Garcia-Lopez's appellate counsel.
The jury was instructed on the three common law definitions of assault — referred to as battery, attempted battery, and threat of battery. Threat of battery was defined for the jury as "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 of imminent fear of bodily injury[.]" Garcia-Lopez argues that his conviction should be reversed because — due to Harvey's testimony that he did not fear Garcia-Lopez — the threat of battery means was not supported by substantial evidence yet could have been relied upon by the jury.
Garcia-Lopez concedes that no reasonable juror would have found he committed battery because he did not touch Harvey and that there was sufficient evidence in the record to prove he committed attempted battery. He asserts only that the State did not present sufficient evidence that he committed threat of battery.
Since the briefs were filed in this case, the Washington Supreme Court has ruled that the common law definitions of assault do not constitute alternative means. State v. Smith, No. 76433-6 Wash. LEXIS 199 (Mar.15, 2007). Because the definitions are not alternative means, they do not require jury unanimity or support by substantial evidence in the record.
Smith, 2007 Wash. LEXIS, at *17.
The Smith decision renders moot Garcia-Lopez's argument that he was deprived of his right to a unanimous verdict because there was insufficient evidence to support all three methods of committing assault. Garcia-Lopez was not charged with statutory alternatives under RCW 9A.36.021(1), but charged only with assault with a deadly weapon under RCW 9A.36.021(1)(c). The jury was instructed as to the three common law definitions of assault. Garcia-Lopez concedes that there is sufficient evidence that he committed assault via the attempted battery definition. The three definitions of assault presented to the jury were not alternative means, so we need not determine whether sufficient evidence exists to support the threat of battery definition.
For the foregoing reasons, we affirm.