Opinion
No. 59837-6-I.
July 21, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-1-12684-0, LeRoy McCullough, J., entered April 13, 2007.
Affirmed by unpublished per curiam opinion.
Felix Ramirez appeals his conviction for assault in the second degree. He claims that (1) he received ineffective assistance of counsel, (2) there was insufficient evidence to support his conviction, and (3) the trial court made two erroneous evidentiary rulings. We affirm.
BACKGROUND
On March 14, 2004, Felix Ramirez went to Dave's Diner in SeaTac. He arrived with a group of friends including his girlfriend, Amy Tosh, and Gary Hamilton, also known as "Gimper." They and others were there to celebrate the birthday of Kelly Wolf, who was bartending that night. Kelly and Tosh were friends and had previously worked together at Elmer's Pub, and Kelly recognized Ramirez as Tosh's boyfriend and a patron of Elmer's Pub. Kelly's husband, Patrick Wolf, was also there celebrating Kelly's birthday.
Kelly Wolf and Patrick Wolf, witnesses for the State, are unrelated to the victim, Larry Wolff.
Larry Wolff and his friend, Frank Virgo, often drank at Dave's Diner on Sunday evenings after playing golf. They had been there for about an hour before Ramirez and his friends arrived. Kelly vaguely knew Wolff because he had been to Dave's Diner a few times during the three weeks she had been bartending there. The two men had a few beers at the golf course and continued to drink at Dave's Diner. They appeared intoxicated.
After Ramirez's group arrived, Wolff and Virgo played darts with Tosh. The game ended unamicably, with Tosh and Virgo exchanging unpleasant comments. Five or ten minutes later, Hamilton walked by Virgo and called him a "wuss." Wolff told Virgo to forget about it and suggested they leave soon. Patrick also encouraged Wolff and Virgo to finish their meals and leave. Although Wolff and Virgo were "mouthy" as they exchanged words with Ramirez's group, they started getting ready to leave.
As Wolff and Virgo were leaving, Hamilton walked over to Virgo and punched him. Wolff was standing next to Virgo when Hamilton hit him. Before Wolff reacted, Ramirez came running around the corner towards him. Patrick tried to intervene, but Ramirez swung at Wolff, grazing Patrick and hitting Wolff hard in the face. Wolff fell backward and hit his head on the jukebox. He gurgled and his eyes rolled back as he lost consciousness. Ramirez and his friends left through the back door of the diner.
Wolff suffered multiple contusions to the brain, which included swelling and bleeding, also called a brain hemorrhage. His injuries were consistent with the type of injuries that can be incurred when a person is punched in the face or falls back, striking the head. Immediately after the incident, Wolff was in a medicated coma in the hospital for two weeks. When he awoke from the coma, he went to an inpatient rehabilitation facility for an additional two weeks. He continues to have memory problems and impaired cognitive abilities. His condition is not expected to improve.
At sentencing, Ramirez moved for a new trial on the grounds that he received ineffective assistance of counsel. The trial court denied his motion and sentenced him to 33 months of confinement.
INEFFECTIVE ASSISTANCE
Ramirez argues that his trial counsel, Nicholas Marchi, was ineffective because Marchi failed to discuss with him at sufficient length his right to testify at trial and failed to call additional defense witnesses.
When reviewing a claim of ineffective assistance, we begin with the presumption that counsel's representation was effective. To overcome this presumption, Ramirez must show (1) considering all the circumstances, his counsel's representation fell below an objective standard of reasonableness, and (2) he was prejudiced by the deficient representation. To establish prejudice, he must demonstrate that there is a reasonable probability that, but for counsel's deficient representation, the trial outcome would have been different.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 334-35.
McFarland, 127 Wn.2d at 335.
A defendant has the right to testify in his own behalf, and the defendant, not trial counsel, has the authority to decide whether or not the defendant will testify. A defendant can waive his right to testify if the waiver is knowing, intelligent, and voluntary. If a defendant does not take the stand, the court may assume he has made a knowing waiver. The trial court has no duty to inform a defendant of the right to testify. Because the right to testify is in direct tension with the right not to testify, and an attorney may have tactical reasons for recommending whether the defendant should testify, the duty of communicating a defendant's right to testify is generally the responsibility of trial counsel.
State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996).
Thomas, 128 Wn.2d at 558.
Thomas, 128 Wn.2d at 559.
Thomas, 128 Wn.2d at 558-59.
State v. Russ, 93 Wn. App. 241, 246-47, 969 P.2d 106 (1998).
In the Matter of Personal Restrain of Lord, the defendant argued that he did not knowingly and voluntarily waive his right to testify. He claimed that the only reason that he did not testify at trial was that his attorneys thought that his testifying would be the "wrong thing" to do. Our Supreme Court held that, because Lord merely asserted that his counsel had advised him against taking the stand but did not claim that counsel had "`actually prevented' him from testifying in his own behalf," he was not entitled to an evidentiary hearing. Similarly, in State v. Thomas, the defendant claimed that defense counsel had prevented him from testifying, but our Supreme Court held that a "bare assertion" was insufficient and that "the defendant must present substantial, factual evidence in order to merit an evidentiary hearing or other action."
123 Wn.2d 296, 868 P.2d 835 (1994).
Lord, 123 Wn.2d at 316.
Lord, 123 Wn.2d at 316.
Lord, 123 Wn.2d at 317.
128 Wn.2d 553, 910 P.2d 475 (1996).
Thomas, 128 Wn.2d at 561 (citing Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991) (rejecting a claim in which defendant failed to produce more than a "bare, unsubstantiated, thoroughly self-serving, and none too plausible statement that his lawyer . . . forbade him to take the stand").
Here, Ramirez argues that Marchi "effectively prevented him from testifying" because Marchi spent less than 15 seconds discussing with him whether or not he should testify. Ramirez's claim fails because he does not claim that Marchi actually prevented him from testifying. According to Ramirez, Marchi told him that he "normally doesn't have his clients testify at trial but that it is up to you." Furthermore, as in Thomas, Ramirez's claim is nothing more than a bare assertion. The only evidence supporting his claim is his own self-serving declaration. Nothing in the record shows that Marchi prevented Ramirez from testifying.
Ramirez also claims that Marchi was ineffective because he failed to call additional witnesses, although he provides no argument for this claim. The decision whether to call a witness is generally a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel. A defendant can overcome this presumption by showing that counsel failed to adequately investigate or prepare for trial. Here, Marchi called two witnesses who supported Ramirez's claim that he had acted in defense of self or others. The record shows that Marchi was aware of the other potential witnesses and made an informed decision not to call them.
State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981).
Byrd, 30 Wn. App. at 799 (quoting State v. Jury, 19 Wn. App. 256, 263, 576 P.2d 1302 (1978)).
Ramirez also argues that his counsel was ineffective because he failed to request an instruction on the lesser crime of assault in the third degree. However, his argument is unfounded because the court instructed the jury on assault in the third degree.
SUFFICIENCY OF THE EVIDENCE
Next, Ramirez argues that there was insufficient evidence to convict him for assault in the second degree. He argues that the evidence supported only a conviction for the lesser crime of assault in the third degree, because he did not intend to inflict substantial bodily harm.
Evidence is sufficient to support a criminal conviction if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. We draw all reasonable inferences from the evidence in the prosecution's favor and interpret the evidence most strongly against the defendant. Credibility determinations are for the trier of fact and are not subject to review on appeal.
State v. Brockob, 159 Wn.2d 311, 336, 150 P.3d 59 (2006).
State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
A person commits assault in the second degree if he intentionally assaults another and thereby recklessly inflicts substantial bodily harm. Substantial bodily harm includes bodily injury that causes a temporary but substantial disfigurement or a substantial impairment of the function of any bodily part or organ.
The statute defining second degree assault does not require that the defendant intend to inflict substantial bodily harm. Rather, the defendant must intend to assault a person and thereby recklessly inflict substantial bodily harm. In State v. Keend, the defendant challenged the court's instructions to the jury, arguing that the instructions allowed the jury to presume that he recklessly inflicted substantial bodily harm on the victim if the jury found that he intentionally assaulted the victim. In rejecting this argument, the court held that the crime of second degree assault "is defined by an act (assault) and a result (substantial bodily harm). And the mens rea of intentionally relates to the act (assault), while the mens rea of recklessly relates to the result (substantial bodily harm)."
RCW 9A.36.021(1)(a); State v. Keend, 140 Wn. App. 858, 866-67, 166 P.3d 1268 (2007).
140 Wn. App. 858, 166 P.3d 1268 (2007).
Keend, 140 Wn. App. at 865.
Keend, 140 Wn. App. at 866.
Here, as in Keend, the court's instructions to the jury clearly set forth the elements of the crime, requiring the jury to find that the defendant "intentionally assaulted" Larry Wolff and "recklessly inflicted substantial bodily harm" on him.
The parties offered conflicting evidence at trial. However, all of the witnesses testified that Ramirez punched Wolff in the face and that Wolff then fell and hit his head on the jukebox. The State's witnesses testified that Ramirez attacked Wolff without provocation. Ramirez called two witnesses who testified that Wolff provoked Ramirez and that he was acting in defense of self or others. The State presented evidence that Wolff's injuries were significant and resulted in several weeks of hospitalization, including two weeks spent in a medicated coma, and substantial impairment to the functioning of his brain.
We defer to the jury on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence. We hold that there was sufficient evidence to support all the elements of assault in the second degree: that Ramirez intentionally assaulted Wolff and thereby recklessly inflicted substantial bodily harm upon him.
State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
EVIDENTIARY RULINGS
Ramirez challenges two evidentiary rulings by the trial court. First, he argues that the court erred in allowing Wolff's sister, Joy Wolff, to testify about the extent of Wolff's injuries. Second, he argues that the court erred in admitting into evidence a recording of Amy Tosh, Ramirez's girlfriend, leaving a voicemail message for Kelly Wolf.
The decision to admit evidence is generally within the sound discretion of the trial court, and we will reverse a trial court's evidentiary ruling only for abuse of discretion. A trial court abuses its discretion only when its decision is manifestly unreasonable or based upon untenable grounds or reasons.
State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
State v. Downing, 151 Wn.2d 265, 272-73, 87 P.3d 1169 (2004) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
In order to be admissible, evidence must be relevant. Relevant evidence is evidence that has a tendency to make any material fact more probable or less probable than it would be without the evidence. Relevant evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Evidence is unfairly prejudicial if it has an undue tendency to suggest the jury decide on an improper basis, such as emotion, rather than make a rational decision. Unfair prejudice requires more than testimony that is simply adverse to the opposing party.
State v. Luvene, 127 Wn.2d 690, 706, 903 P.2d 960 (1995); ER 402.
Luvene, 127 Wn.2d at 706; ER 401.
Luvene, 127 Wn.2d at 706; ER 403.
State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000).
State v. Gould, 58 Wn. App. 175, 183, 791 P.2d 569 (1990).
Ramirez argues that Joy's testimony about the extent of her brother's injuries was highly prejudicial and that the State offered this evidence for the sole purpose of appealing to the passion of the jury. During pretrial hearings, he argued that Joy's testimony was irrelevant and prejudicial. The trial court denied Ramirez's motion in limine regarding the extent of the injuries. Where a trial court makes a tentative ruling on a motion in limine, a party must renew his objection in order to preserve the issue for appeal. Ramirez did not ask for a final ruling, and he failed to renew his objection during trial. In any event, we agree with the trial court that this evidence was relevant to show whether the alleged conduct recklessly caused substantial bodily harm. Because the danger for unfair prejudice did not clearly outweigh the probative value of the evidence, the trial court did not abuse its discretion in admitting Joy's testimony.
State v. Carlson, 61 Wn. App. 865, 875, 812 P.2d 536 (1991).
Ramirez also argues that the trial court erred by allowing a tape recorded message Amy Tosh left for the State's witness, Kelly Wolf, to be entered into evidence. Tosh did not testify at trial. The State played the recording for the jury during Kelly's testimony. Kelly identified the voice and described what Tosh had said. In the message, Tosh said that it was Kelly's fault that Wolff was hit and that maybe Wolff had deserved it. Initially, Ramirez's counsel objected to the admission of the tape but later, after speaking with Kelly, withdrew the objection. He did not object when the evidence was offered at trial. We hold that Ramirez did not properly preserve this objection for appeal.
Even if the trial court erred by allowing Joy to testify about Wolff's injuries or by admitting the tape recording into evidence, these errors would not justify reversal. We will reverse a conviction for evidentiary error only if the error causes prejudice to the defendant. An error is harmless unless it is reasonably probable that the outcome of trial would have been different had the error not occurred. Here, the conviction is supported by other evidence, and it is not probable that the outcome would have been different if the trial court had excluded Joy's testimony and Tosh's voice recording.
State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001).
State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
Affirmed.