Opinion
Nos. 23196-8-III; 23197-6-III.
October 3, 2006.
Appeals from judgments of the Superior Court for Kittitas County, Nos. 04-1-00074-1 and 04-1-00079-2, Michael E. Cooper, J., entered July 13, 2004.
Dennis W. Morgan Attorney at Law 120 W Main Ave Ritzville, WA, 99169-1408 Counsel for Appellants.
Mark D Mcclain Kittitas County Prosecutors Office 205 W 5th Ave Ste 213 Ellensburg, WA, 98926-2887 Counsel for Respondents.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Brown, J.
UNPUBLISHED OPINION
In this consolidated action, Tracey VanKnowe and Marvin Walker challenge their convictions for second degree assault. On appeal, they argue that Mr. Walker's vehicle was improperly classified as a deadly weapon. They also contend that the jury instructions misstated the common law definition of assault, that the prosecutor committed misconduct, and that the evidence was insufficient to support their convictions. Finally, Mr. Walker and Ms. VanKnowe assert that, even if these errors are not sufficient individually to warrant new trials, this court should apply the doctrine of cumulative error and remand both cases for retrial. We hold that any error in the trial court's instructions was harmless. And finding no other errors, we affirm the trial court.
FACTS
Larry Thornblade and Christina Germany were married and had a child. They lived together in Spokane. In July of 2003, Mr. Thornblade took his infant son and brought him to Ellensburg to live with Terri Covey, Mr. Thornblade's mother. Mr. Thornblade stated that he took his son away because Ms. Germany had a "meth problem." Report of Proceedings (RP) (July 8, 2004) at 72.
Ms. Germany telephoned Mr. Thornblade several times seeking to get her son back. Mr. Thornblade attempted to convince Ms. Germany to move to Ellensburg instead, but Ms. Germany refused. At trial, Ms. Germany asserted that she traveled to Ellensburg to ask Mr. Thornblade to return her son. She also called the grandmother, Ms. Covey, seeking to regain custody of the child.
On March 27, 2004, Ms. Germany and two of her friends, Tracey VanKnowe and Marvin Walker, traveled to Ellensburg in Mr. Walker's car. Ms. Germany went into a grocery store in Ellensburg while Mr. Walker and Ms. VanKnowe waited outside in Mr. Walker's car. As they waited, Ms. Covey and the infant drove up and parked next to them. Ms. VanKnowe recognized Ms. Covey as Mr. Thornblade's mother and told Mr. Walker to "get into the driver's seat because [she did not] know what's going to happen." RP (July 2, 2004) at 60. Ms. VanKnowe entered the grocery store and informed Ms. Germany that the infant was in the store with Ms. Covey.
Ms. Germany confronted Ms. Covey and demanded the return of the infant. Ms. Covey refused and the two began to struggle. While the two were fighting, Ms. Germany told Ms. VanKnowe to grab the infant and leave the store. Ms. Germany said she would wait at the store to speak with the police. Ms. VanKnowe complied.
Ms. VanKnowe entered Mr. Walker's car with the infant and told Mr. Walker that it was "time to go." RP (July 2, 2004) at 4. Ms. Germany and Ms. Covey exited the store still fighting. Ms. Covey saw Ms. VanKnowe place her grandson in the backseat, and initially tried to force her way into the car. When she could not get the locked car door to open, Ms. Covey then attempted to prevent Mr. Walker's car from leaving the parking lot. Ms. Covey went around to the hood of the car and braced her arms and legs against it to prevent Mr. Walker and Ms. VanKnowe from leaving with her grandson.
Mr. Walker, the driver of the car, attempted to leave the parking lot with the infant. The car's movements were described as slow and "just edging a little bit." RP (July 2, 2004) at 114. Ms. Covey testified that the car was putting "steady pressure against [her] legs" so that she had to keep backing up to prevent her legs from being broken by Mr. Walker's car. RP (July 8, 2004) at 25. Ms. Covey also testified that the pressure from Mr. Walker's car left large horizontal bruises across her knees. When asked by law enforcement about the confrontation with Ms. Covey, Mr. Walker denied having hit Ms. Covey with the car and he asserted that he would "never strike anyone with a vehicle." RP (July 2, 2004) at 3.
Ms. VanKnowe and Mr. Walker were charged with first degree custodial interference, two counts of second degree assault, and criminal conspiracy to commit first degree custodial interference. The court joined the cases against Ms. VanKnowe and Mr. Walker.
The jury found Ms. VanKnowe and Mr. Walker guilty of the first charge of second degree assault, but acquitted them both of all other charges. Ms. VanKnowe and Mr. Walker were each sentenced to 3 months confinement. This appeal followed.
ANALYSIS 1. Prosecutorial misconduct
The defendant has the burden of establishing both that the prosecutor's conduct was improper and that the misconduct was prejudicial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). We review the alleged prosecutorial misconduct for whether it was "so flagrant and ill-intentioned as to create incurable prejudice," unless the misconduct directly violates a constitutional right. State v. French, 101 Wn. App. 380, 385-86, 4 P.3d 857 (2000). Where the alleged misconduct violates a constitutional right, we apply the standard of constitutional harmless error. Id. at 386. We review a prosecutor's allegedly improper remarks in "the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." Id. at 385 (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
Here, Mr. Walker and Ms. VanKnowe allege two separate instances of prosecutorial misconduct. First, they allege that the prosecutor committed misconduct when he told the jury that Mr. Walker's vehicle was classified as a per se deadly weapon.
Second, they allege that the prosecutor committed misconduct by commenting on a missing witness.
Vehicle as a deadly weapon per se
RCW 9A.04.110(6) recognizes only two categories of weapons that are deemed to be deadly per se: firearms and explosives. Every other type of weapon may be deemed a deadly weapon only if the facts and circumstances of the case support the finding that it was readily capable of causing death or substantial bodily harm. See, e.g., State v. Shilling, 77 Wn. App. 166, 172, 889 P.2d 948 (1995).
A prosecutor's statements to the jury regarding the law must be confined to the law as set forth in the trial court's instructions. State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984). "The prosecuting attorney misstating the law of the case to the jury is a serious irregularity having the grave potential to mislead the jury." Id. at 763.
Here, the prosecutor told the jury that "a car is a deadly weapon." RP (July 8, 2004) at 158. Since a car is not among those specific items that are deemed to be per se deadly weapons, the prosecutor's comment was not a correct statement of the law. RCW 9A.04.110(6). However, this court also reviews the prosecutor's statements in the context of the State's total closing argument. All of the other statements made by the State with regard to Mr. Walker's vehicle focused upon the facts and circumstances concerning the use of the vehicle against Mr. Covey. In light of the totality of the State's argument, it is clear that the State was arguing that the vehicle was a deadly weapon based on the facts and circumstances of the case.
Moreover, the jury is presumed to follow the instructions provided by the trial court absent evidence to the contrary. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). The trial court instructed the jury to disregard any statements made by the attorneys at trial which were not supported by the law as stated by the court. The court also instructed the jury that a deadly weapon "includes a vehicle, or any instrument, which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily injury." Clerk's Papers (CP) (VanKnowe) at 103. This is a correct statement of the law and we will presume that the jury followed this instruction when it found that Mr. Walker used his vehicle as a deadly weapon in this case. See also State v. Souther, 100 Wn. App. 701, 715, 998 P.2d 350 (2000).
Missing witness
The State is generally barred from commenting on any lack of defense evidence because the defendant has no duty to present evidence. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). However, under some circumstances a prosecutor may comment on the failure of the defense to produce a witness under the "missing witness" doctrine.
The missing witness doctrine applies when (1) evidence which would properly be part of a case is within the control of the party, (2) it is in that party's interest to produce it, and, (3) he fails to do so. In such cases, the jury may infer that the missing evidence would be unfavorable to him. State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991).
The witness must be peculiarly available to the defendant, meaning that the witness must be peculiarly within the defendant's power to produce. Cheatam, 150 Wn.2d at 652.
Here, the prosecutor referenced the fact that Ms. Germany failed to produce any witness to corroborate her prior attempts to see her infant son in Ellensburg despite promising such witnesses in opening remarks. Presumably, only Ms. Germany, and not the State, was aware of the identity of these witnesses and would therefore have access to them. Therefore, given that Ms. Germany promised to present witnesses to establish her prior efforts at regaining custody of her child, the State properly commented on the absence of these witnesses.
Even if comments by the prosecutor were improper, Mr. Walker and Ms. VanKnowe must also show a substantial likelihood that these statements affected the jury's verdict. Here, nothing suggests the remarks made by the prosecutor were in any way connected to the charges for assault with a deadly weapon. Mr. Walker and Ms. VanKnowe have failed to demonstrate that they were prejudiced by this alleged prosecutorial misconduct.
Ms. VanKnowe and Mr. Walker also argue that the prosecutor's remarks regarding the failure to call witnesses constituted an indirect comment on their right to remain silent. A criminal defendant has a constitutional right not to testify at trial. State v. Contreras, 57 Wn. App. 471, 473, 788 P.2d 1114 (1990). Application of the missing witness doctrine is improper if the prosecutor's comments infringe on the defendant's constitutional right to remain silent. Blair, 117 Wn.2d at 491. Such a comment only implicates a defendant's right to remain silent if the comment is of a type that the jury would be naturally inclined to view as a comment on the defendant's failure to testify. French, 101 Wn. App. at 389.
Here, nothing connects the prosecutor's remarks to either Mr. Walker or Ms. VanKnowe. The prosecutor remarked on a witness that was promised by a third defendant, not on the charges against Mr. Walker and Ms. VanKnowe. Under these facts, nothing suggests a juror would connect the prosecutor's remarks to the failure of the defendants in this case to testify.
2. Sufficiency of the evidence
Where a criminal defendant challenges the sufficiency of the evidence, we review the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found guilt 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 of the inferences that can reasonably be drawn therefrom. Id. Circumstantial and direct evidence are of equal weight upon review by an appellate court. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). A fact finder is permitted to draw inferences from circumstantial evidence so long as these inferences are rationally related to the proven fact. State v. Bencivenga, 137 Wn.2d 703, 707, 974 P.2d 832 (1999).
Here, Mr. Walker and Ms. VanKnowe challenge the sufficiency of the State's evidence that Mr. Walker's car was a deadly weapon under the facts and circumstances of this case. They also make distinct challenges to the sufficiency of the evidence to support their individual convictions. Mr. Walker challenges the sufficiency of the State's evidence to establish the requisite intent to support his conviction for assault. Ms. VanKnowe challenges the sufficiency of the evidence that she acted as an accomplice to this assault.
Deadly weapon
Mr. Walker and Ms. VanKnowe assert that, because a motor vehicle is not a deadly weapon per se, the State was required to prove that the car was a deadly weapon under the facts and circumstances of this case. They claim that the State failed to establish this because Mr. Walker was driving the vehicle in a slow and cautious manner when it struck Ms. Covey. This assertion is unpersuasive.
As previously noted, there are two categories of deadly weapons. See, e.g., RCW 9A.04.110(6); State v. Winings, 126 Wn. App. 75, 87, 107 P.3d 141 (2005). The first category includes weapons that are deemed to be deadly per se: explosives and firearms. State v. Carlson, 65 Wn. App. 153, 158, 828 P.2d 30 (1992). The second category includes any item that is deemed deadly under the circumstances in which it is used or threatened to be used. Id. at 158-59.
Here, the purported deadly weapon is the car driven by Mr. Walker. The State was required to prove that the car was used, attempted to be used, or threatened to be used in a manner that was readily capable of causing death or substantial bodily harm. "Substantial bodily harm" is defined by statute as "bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part." RCW 9A.04.110(4)(b).
The issue of whether the vehicle in this case was properly classified as a deadly weapon is not limited to the actual use of the vehicle. A weapon may also be deemed to be a deadly weapon based upon its threatened use. See RCW 9A.04.110(6); State v. Taylor, 97 Wn. App. 123, 128, 982 P.2d 687 (1999). Here, the potential and threatened use of the vehicle against Ms. Covey had the capacity to cause death or substantial bodily harm. The fact that Mr. Walker drove the car into Ms. Covey at a relatively low rate of speed is not relevant for purposes of determining whether the car was a deadly weapon in this case. What is relevant is that the car, as used, had the inherent capacity to be used as a deadly weapon. The State presented sufficient evidence that Mr. Walker's vehicle was used as a deadly weapon under the facts of this case.
Mr. Walker's intent
"Assault by battery . . . does not require specific intent to inflict substantial bodily harm or cause apprehension." State v. Daniels, 87 Wn. App. 149, 155, 940 P.2d 690 (1997). All that is required is that the actor intended to perform the action that constituted the battery; he or she is not required to intend the specific consequences of the action. See, e.g., State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000).
Moreover, a jury is permitted to infer criminal intent from the conduct of the defendant "where it is plainly indicated as a matter of logical probability." State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). Here, Mr. Walker drove his vehicle deliberately into Ms. Covey, who was plainly obstructing his car. This is sufficient evidence that Mr. Walker had the required intent to support his conviction for second degree assault.
Ms. VanKnowe as an accomplice
Ms. VanKnowe was also found guilty of second degree assault based upon Mr. Walker's striking of Ms. Covey with his vehicle. Ms. VanKnowe was merely a passenger in the vehicle and did not personally drive the vehicle into Ms. Covey. Therefore, Ms. VanKnowe's criminal liability for the assault of Ms. Covey must be founded on vicarious liability as an accomplice.
"A person is legally accountable for the conduct of another person if he is an accomplice to that person in the commission of the crime." State v. McDonald, 138 Wn.2d 680, 690, 981 P.2d 443 (1999) (quoting State v. Davis, 101 Wn.2d 654, 657, 682 P.2d 883 (1984)); see also RCW 9A.08.020. A person is an accomplice to another in the commission of a crime if he or she solicits, commands, encourages or requests the other person to commit the crime; or if he or she aids or agrees to aid such other person in planning or committing the crime. RCW 9A.08.020(3). Additionally, the State must prove that the individual acted with the specific knowledge that his or her actions would promote or facilitate the commission of the crime. Id.
In order for Ms. VanKnowe to be deemed an accomplice to the assault of Ms. Covey, Ms. VanKnowe must have acted with the general knowledge that she was facilitating the assault for which she was charged. See State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000). Liability as an accomplice does not require specific knowledge of the exact elements of the crime or that the accomplice shares the same mental state as the principal. State v. Berube, 150 Wn.2d 498, 511, 79 P.3d 1144 (2003).
"[P]hysical presence and assent alone are insufficient to establish accomplice liability." State v. Amezola, 49 Wn. App. 78, 89, 741 P.2d 1024 (1987). The State must also establish that the defendant was "ready to assist in the commission of the crime." Id.
This generally requires a showing that the accomplice had "the purpose to promote or facilitate the particular conduct that forms the basis for the charge." State v. Roberts, 142 Wn.2d 471, 510, 14 P.3d 717 (2000) (quoting Model Penal Code § 2.06 cmt. 6(b) (1985)).
Here, a reasonable fact finder could infer from the facts and circumstances that Ms. VanKnowe solicited, encouraged, commanded, or requested that Mr. Walker take the actions that culminated in him striking Ms. Covey with his car. Ms. VanKnowe absconded with the infant while Ms. Germany confronted Ms. Covey. Upon entering Mr. Walker's car, Ms. VanKnowe urged that it was "time to go." RP (July 2, 2004) at 4. Given the purpose of the trip to Ellensburg, coupled with the confrontation with Ms. Covey, a reasonable juror could infer that Ms. VanKnowe's statements that it was time to go encouraged Mr. Walker to drive away even though Ms. Covey was in front of the car. There was sufficient evidence under the facts and circumstances of this case that Ms. VanKnowe promoted or encouraged Mr. Walker to drive at Ms. Covey with the intent to effectuate an escape with the infant.
3. Jury instructions
Washington's criminal code does not provide a definition for assault, therefore this court looks to the common law to define this crime. State v. Hupe, 50 Wn. App. 277, 282, 748 P.2d 263 (1988). "Three definitions of assault have been recognized by Washington courts: (1) an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm whether or not the actor actually intends to inflict or is capable of inflicting that harm." Id. An assault by battery also requires that the unlawful contact is either harmful or offensive. See, e.g., State v. Garcia, 20 Wn. App. 401, 403, 579 P.2d 1034 (1978).
The trial court correctly defined assault as an intentional touching or striking of another person that is harmful or offensive. However, the court's instructions stated that a "touching or striking would offend an ordinary person who is not unduly sensitive." CP (VanKnowe) at 100 (emphasis added). This instruction should have read that a touching or striking is offensive if the touching would offend an ordinary person who is not unduly sensitive. See, e.g., 11 Washington Pattern Jury Instructions: Criminal 35.50, at 453 (2d ed. 1994).
This court reviews a jury instruction that omits or misstates an element of the crime under a harmless error analysis. State v. Banks, 149 Wn.2d 38, 43-44, 65 P.3d 1198 (2003). Under this standard, such an error only requires reversal of a conviction if this court determines that the error has relieved the State of its burden to prove each element of the case. Id. The State has not been relieved of its burden when an element that has been omitted from a jury instruction is supported by uncontroverted evidence. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002).
This court must determine whether uncontroverted evidence supported the finding that the contact in this case was harmful or offensive and whether there is a reasonable probability that the outcome at trial would have been different had the jury been properly instructed as to the crime of assault.
There is no such reasonable probability here. There are few things that have a greater potential to inflict injury than being struck by a moving car, even at a low rate of speed. Furthermore, Ms. Covey was clearly frightened and distraught by being struck with Mr. Walker's car. This evidence was uncontroverted at trial and clearly supports the finding that Mr. Walker striking Ms. Covey with his car was a harmful and offensive contact. As such, there is no reasonable probability that the jury would have come to a different result had they been properly instructed as to the charge of assault. The improper instruction was harmless error.
4. Cumulative error
Finally, Mr. Walker and Ms. VanKnowe ask this court to reverse their convictions based upon the doctrine of cumulative error. The cumulative error doctrine is applied in those cases where "there have been several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000).
Here, the doctrine of cumulative error is inapplicable because "several trial errors" have not occurred in this case. While the trial court did improperly instruct the jury as to the charge of assault, this appears to be the only error and, as previously noted, this error was harmless. Therefore, the cumulative error doctrine does not apply.
We hold that there was no prosecutorial misconduct in this case, and that sufficient evidence supported Mr. Walker's and Ms. VanKnowe's convictions for second degree assault. The trial court erred when it failed to correctly instruct the jury of the law regarding assault. However, this error was harmless, as there was overwhelming uncontroverted evidence at trial of contact that would be harmful or offensive to a reasonable person. We affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS and BROWN Concur.