Opinion
No. 60166-1-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-02816-8, Cheryl B. Carey, J., entered June 11, 2007.
Affirmed by unpublished per curiam opinion.
To prevail on a claim of ineffective assistance of counsel, the defendant must prove both deficient performance by counsel and resulting prejudice. Where the legislature has not defined "serious bodily injury," counsel's performance was not deficient by failing to propose a definitional instruction for "serious." Aljeron Pleasant fails to prove that his trial counsel was ineffective. We affirm.
State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).
While Pleasant was an inmate at King County Jail, corrections officers conducted a random search of his cell. Officer Zane McCraw seized a toothbrush with a sharpened handle from Pleasant's belongings. The bristles of the toothbrush were wrapped in meal tray stickers that had Pleasant's name on them.
The State charged Pleasant with one count of weapon possession by a prisoner under RCW 9.94.040(2). A jury convicted him as charged.
Pleasant appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Pleasant argues that his trial counsel was ineffective. We disagree. To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's conduct was deficient and that the deficient performance resulted in prejudice. To show deficient performance, the defendant must prove that his or her counsel's performance fell below an objective standard of reasonableness based on all the circumstances. Prejudice is established if the defendant shows that but for counsel's errors, there is a reasonable probability that the outcome of the trial would have been different. The failure to establish either prong of the test is fatal to the claim of ineffective assistance of counsel. This court employs a strong presumption that counsel's representation was effective.
Nichols, 161 Wn.2d at 8.
Id.
Id.
Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Here, Pleasant argues that his counsel's failure to propose a jury instruction defining "serious bodily injury" constitutes deficient performance. The record does not support this claim.
Under RCW 9.94.040(2), it is a class C felony to posses a weapon while incarcerated. That statute provides:
Every person confined in a county or local correctional institution who, without legal authorization, while in the institution . . . knowingly possesses or has under his or her control any weapon, firearm, or any instrument that, if used, could produce serious bodily injury to the person of another, is guilty of a class C felony.
RCW 9.94.040(2) (emphasis added).
The criminal code does not define the phrase "serious bodily injury." However, the definitions in RCW 9A.04.110, which apply to the crimes charged here, define the phrase "bodily injury." Instruction 9 stated this statutory definition to the jury: "Bodily injury means physical pain or injury, illness, or an impairment of physical condition." Instruction 12, the to convict instruction, required the jury to find, beyond a reasonable doubt:
RCW 9A.04.090 states that the definitions in 9A.04.110 apply to offenses defined in Title 9A or another statute unless Title 9A or such other statute specifically provides otherwise.
RCW 9A.04.110(4)(a) ("`Bodily injury,' `physical injury,' or `bodily harm' means physical pain or injury, illness, or an impairment of physical condition[.]").
Clerk's Papers at 78.
(1) That on or about the 13th day of December, the defendant knowingly possessed without legal authorization a weapon capable of producing serious bodily injury . . . .
Clerk's Papers at 81 (emphasis added).
The court also instructed the jury to consider the instructions as a whole.
Taken together, Instructions 9 and 12 provide the legislature's definition for "bodily injury" but no definition for the word "serious." Had the legislature intended that the word "serious" to have special meaning in the context of the crime charged here, it would have said so. It did not.
Moreover, while instructions should define technical words and expressions used in jury instructions, they need not define words and expressions that are commonly understood. In short, an ordinary juror in this case, reading Instructions 9 and 12 together, would know that in order to convict Pleasant, the juror would have to find that the sharpened toothbrush was capable of producing more than mere bodily injury.
State v. Allen, 101 Wn.2d 355, 358, 678 P.2d 798 (1984).
Pleasant argues that trial counsel confused the term "serious physical injury" with "serious bodily injury" when representing to the court that it was not defined. But counsel's proposed instructions used the proper term, and nothing in counsel's colloquy with the trial court or trial memorandums shows that counsel was confused.
Next, he argues that it was inexcusable that trial counsel did not request an instruction defining "serious bodily injury" as it is found in the assault by watercraft statute, RCW 79A.60.060(1). We see no rational connection between a definition in Title 79A and a missing definition in Title 9. Rather, as we have observed, the definitions of RCW 9A.04.110 together with the ordinary meaning of "serious" provide the more rational approach to considering the jury instruction at issue.
Under RCW 79A.60.060(1), "`serious bodily injury' means bodily injury which involves a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body."
He next argues that "serious bodily injury" is a term of art with precise legal meaning. He relies on State v. Allen, arguing that where the court fails to supply a statutory definition for such a term or art, it is a critical error. But Allen is inapposite because the word "serious" is not a term with a technical meaning defined by the legislature.
See Allen, 101 Wn.2d at 360.
Finally, he argues that because the watercraft assault definition of "serious bodily injury" was not given, the standard of proof was reduced, allowing the jury to convict him merely if it found that the toothbrush was sharp enough to break the skin. He argues that the proper standard was whether the toothbrush could have caused injury akin to death. But, as we have already discussed, the watercraft assault definition is not relevant to the crime charged here.
There was no deficient performance by defense counsel.
Because Pleasant fails to establish that counsel's performance was deficient, we need not address the prejudice prong.
We affirm the judgment and sentence.