Opinion
No. 34958-2-II.
March 4, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-03874-1, Vicki L. Hogan, J., entered April 28, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Bridgewater, J., concurred in by Penoyar, J.; Hunt, J., dissenting.
Robert Richard Rudner Jr. appeals his convictions for two counts of first degree assault. We hold that there was sufficient evidence to prove he intended to inflict great bodily harm against Brian Faranda by placing him in an execution kneeling position, pointing a gun at his head, and pulling the trigger. But the evidence is insufficient to prove that he had the intent to inflict great bodily harm against Kimberly Riley merely by pointing the gun at her without threats of death, firing the gun, or placing her in an execution kneeling position. We hold also that there was no need for a unanimity instruction. Thus, we affirm the conviction for first degree assault involving Faranda (count I). We vacate the conviction for first degree assault against Riley (count II), but direct the entry of a judgment of guilt for second degree assault against Riley. We remand for resentencing.
I. Facts
In addition to the incident described herein, the State presented evidence at trial that Rudner committed three other burglaries, including a theft where he left behind a backpack containing marijuana, methamphetamine, ammunition and a cell phone bill in his name. Rudner does not challenge this evidence.
On August 6, 2004, Desmond Berry asked Autumn Arnestad to help him rob his acquaintance, Brian Faranda, by taking the keys to Faranda's Ford Mustang. That night, Arnestad entered Faranda's home through the sliding glass door on the second floor balcony. Arnestad then let Berry and Rudner in through the front door. Faranda and his girlfriend, Kimberly Riley, were sleeping on the couch. Arnestad had in her possession a .9 millimeter Beretta that she stole earlier that day, which she gave to Rudner along with clips loaded with ammunition. Rudner pointed the gun at Riley and asked for the keys to Faranda's Mustang. Meanwhile, Arnestad ordered Faranda to get on his knees, putting his hands behind his head as she went through his pockets. Rudner turned the gun to Faranda's head and aggressively repeated his demand for the keys to the Mustang.
Though it appears that Desmond Berry's involvement is undisputed, Berry was not charged with this crime, nor did he appear as a witness at Rudner's trial.
Faranda did not actually own a Ford Mustang. Berry mistook Faranda's Thunderbird for a Mustang.
Riley saw Rudner pull the trigger on the gun while aiming it at Faranda's head. Faranda, who is familiar with guns, heard a "click" that sounded like either an "accidental trigger pull or a decock mechanism." 6 RP at 597. Riley screamed that she and Faranda would not get killed without a fight, and jumped on Arnestad. Faranda tried to get the gun away from Rudner, but Rudner hit him in the face with it, and "kept swinging, swinging away with the pistol." 6 RP at 603. Arnestad stole Riley's purse and fled, while Faranda was able to subdue Rudner. As a result of the altercations, Riley sustained a gash on her eye while Faranda suffered a broken nose and received two stitches in his eye and six on his forehead.
At trial, the court instructed the jury that it could find Rudner guilty of first degree assault if it determined that he intended to inflict great bodily harm upon both Faranda and Riley beyond a reasonable doubt. Rudner did not object to the instruction. The jury found Rudner guilty on all charges, and concluded he was armed with a firearm during the commission of the two counts of first degree assault. The court sentenced Rudner to 573 months.
Rudner does not dispute any other jury instructions on appeal.
Analysis I. Sufficiency of Evidence
Rudner argues that there was insufficient evidence at trial to convict him of first degree assault of either Faranda or Riley. The State maintains that the prosecution presented sufficient evidence of all elements of both first degree assaults to the jury, including intent to inflict great bodily harm.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). This court must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
The prosecution must prove intent to inflict great bodily harm in order to establish first degree assault. RCW 9A.36.011. The trier of fact ascertains "intent" by determining whether a person acts with the "objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a). The trier of fact should also look to "all the circumstances of the case, including not only the manner and act of inflicting the wound, but also the nature of the prior relationship and any previous threats" to determine intent. State v. Ferreira, 69 Wn. App. 465, 468-69, 850 P.2d 541 (1993) (quoting State v. Woo Won Choi, 55 Wn. App. 895, 906, 781 P.2d 505 (1989), review denied, 114 Wn.2d 1002 (1990)).
RCW 9A.36.011 provides: "(1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm: (a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death." RCW 9A.04.110(4)(c) defines "[g]reat bodily harm" as "bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ."
Here, if we construe all evidence presented at trial in favor of the State, the evidence was sufficient for the jury to find that Rudner intended to inflict great bodily harm upon Faranda. The jury heard undisputed testimony that Rudner entered Faranda's home uninvited, in order to steal the keys to Faranda's car. Rudner pointed the gun at Riley and demanded the keys to Faranda's Mustang. Arnestad admitted on the stand that when Faranda refused to comply with the same demand, she and Rudner forced Faranda to his knees, and held a gun to his head. Riley saw Rudner pull the trigger while aiming the gun at Faranda's head.
The jury also found Rudner liable for Arnestad's actions against Faranda and Riley as an accomplice. Rudner does not challenge this finding or the jury instruction on accomplice liability.
Because credibility issues are left to the trier of fact and are not subject to review, contradictory evidence is of no moment if there is sufficient evidence supporting the jury's verdict. Considering all the circumstances of the case, the trier of fact had sufficient evidence to find Rudner intended to inflict serious bodily harm on Faranda, either on his own or as an accomplice to Arnestad.
But there is no evidence that Rudner intended to inflict great bodily harm upon Riley. Although the pistol was pointed at her, Rudner voiced no threats of death or great bodily harm, did not pull the trigger while pointing the gun at her, and did not place her in an execution kneeling position like Faranda. And though Arnestad assaulted Riley with her hands while wearing rings, this alone does not evidence an intent to inflict great bodily harm. Thus, there was insufficient evidence to convict Rudner of first degree assault against Riley. But, there was sufficient evidence to convict him of second degree assault under RCW 9A.36.021(1)(c) because he assaulted Riley with a deadly weapon. The court instructed the jury as to second degree assault as a lesser included offense. We can direct the entry of a verdict if there is sufficient evidence of a lesser included or inferior degree crime. See State v. Gamble, 118 Wn. App. 332, 336 n. 4, 72 P.3d 1139 (2003, aff'd in part, rev'd in part, 154 Wn.2d 457, 114 P.3d 646 (2005)).
RCW 9A.36.021(1) provides, "A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . (c) Assaults another with a deadly weapon."
II. Unanimity Instruction
Rudner argues the trial court deprived him of his right to a unanimous jury verdict on his first degree assault charges by presenting evidence of five potential assaults, where a reasonable juror could have doubts about at least one assault rising to the level of first degree. The State contends that a unanimity instruction was unnecessary because the multiple criminal acts presented at trial were part of a continuing course of conduct. The State is correct.
Rudner maintains the five separate alleged assaults are: (1) Rudner pulling the trigger on the gun while pointed at Faranda; (2) Rudner hitting Faranda in the face with the gun; (3) Rudner pointing the gun at Riley; (4) Rudner's accomplice liability for Arnestad hitting Riley; and (5) Rudner vicariously assaulting Riley by pointing the gun at Faranda. See State v. Wilson, 125 Wn.2d 212, 218-19, 883 P.2d 320 (1994).
The right to a unanimous verdict is a fundamental right derived from the constitutional right to a jury trial. State v. Gooden, 51 Wn. App. 615, 617, 754 P.2d 1000 (1988) (citing State v. Handyside, 42 Wn. App. 412, 415, 711 P.2d 379 (1985)), review denied, 111 Wn.2d 1012 (1988). An appellate court reviews alleged errors in jury instructions de novo, in the context of the instructions as a whole. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007) (citing State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995), 516 U.S. 1121 (1996), cert. denied, 516 U.S. 1121 (1996)).
Rudner did not propose a unanimity instruction at trial, but we may consider this argument for the first time on appeal because it is of constitutional magnitude. State v. Russell, 101 Wn.2d 349, 354, 678 P.2d 332 (1984); Camarillo, 115 Wn.2d at 63.
A jury may convict a defendant only if it unanimously finds he committed the criminal act with which he is charged. State v. Love, 80 Wn. App. 357, 360, 908 P.2d 395 (citing State v. King, 75 Wn. App. 899, 902, 878 P.2d 466 (1994), review denied, 125 Wn.2d 1021 (1995)), review denied, 129 Wn.2d 1016 (1996). Where the State charges only one criminal act but presents evidence of many potentially criminal events, a unanimity instruction is required because "there is a danger that a conviction may not be based on a unanimous jury finding that the defendant committed any given single criminal act." Love, 80 Wn. App. at 360-61 (citing State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988)).
If the multiple criminal acts presented constitute one continuing course of conduct, neither an election nor unanimity instruction is required. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). To determine whether multiple criminal acts amount to a continuing course of conduct, courts look to whether the acts were committed as part of an ongoing "enterprise with a single objective." Gooden, 51 Wn. App. at 619-20. The determination must be "evaluated in a commonsense manner." Handran, 113 Wn.2d at 17 (citing State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984)).
In Handran, 113 Wn.2d 11, the defendant asserted he was deprived of a unanimous jury verdict because there was no specific unanimity instruction where the State presented evidence of many crimes, but charged him with only one count of first degree burglary. Handran, 113 Wn.2d at 12. Our Supreme Court affirmed the conviction, holding that because the events occurred "in one place during a short period of time between the same aggressor and victim . . . a commonsense evaluation of these facts . . . [reveals] a continuing course of conduct to secure sexual relations with his ex-wife." Handran, 113 Wn.2d at 17. Washington courts have also held that multiple acts comprised a continuing course of conduct where several assaults over a two-hour period led to a fatal injury, as well as where several criminal acts over one-and-a-half weeks were committed for the common objective of promoting prostitution. State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10, cert. denied, 501 U.S. 1237 (1991); Gooden, 51 Wn. App. at 620.
Rudner's argument fails because under a commonsense evaluation of the facts, the multiple assaults presented at trial constituted a continuing course of conduct. Though the State presented evidence of five potential assaults at trial, the multiple assaults were committed in one room within a span of about 30 minutes, by the same aggressors toward the same victims. Rudner committed the assaults within a short time period in order to further one objective, to deprive Faranda of his keys and property. Furthermore, under these circumstances it would seem irrational to conclude that each of the five assaults within a 30-minute period was an independent crime, with its own intent and purpose. Because Rudner's multiple assaults were part of a continuous course of conduct, a unanimity instruction was not required and the court did not violate Rudner's right to a unanimous jury verdict.
We affirm the conviction of first degree assault involving Faranda (count I); we vacate the conviction for first degree assault involving Riley (count II), but we direct the court to enter a guilty verdict for second degree assault involving Riley (count II) and we remand for resentencing.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Penoyar, J. concur.
I respectfully dissent from the majority's holding that the State did not present sufficient evidence to support Rudner's conviction for first degree assault. The jury heard evidence that Rudner (1) entered Faranda's home unlawfully, (2) pointed a gun at Riley while demanding the keys to the car, and (3) pulled the trigger while holding the gun to Faranda's head. Riley testified that she attacked Arnestad in self-defense because she believed Rudner intended to kill both her (Riley) and Faranda. The absence of a verbal threat by Rudner directed specifically to Riley does not show that Rudner lacked the requisite intent to kill or to inflict great bodily harm on Riley. Nor does this lack of an express separate threat to Riley undercut the jury's believing Riley's testimony that Rudner intended to kill her in addition to Faranda, whom Rudner threatened directly.
The jury's unanimous verdict finding Rudner guilty of first degree assault demonstrates that that it believed Riley's testimony.
It is well settled that a fact-finder's determinations of witness credibility are not subject to our review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Because the evidence supports the jury's determination that Rudner intended to kill or to inflict great bodily harm on Riley, as well as Faranda, I would affirm Rudner's conviction for first degree assault of Riley.