Opinion
No. 53850-1-I
Filed: May 16, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 03-1-00192-1. Judgment or order under review. Date filed: 02/02/2004. Judge signing: Hon. Steven J Mura.
Counsel for Appellant(s), Michael H. Anagnos (Appearing Pro Se), 4470 Ferndale Road, Ferndale, WA 98248.
Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
Macduffie Setter, Whatcom Co Pros Att Ofc, 311 Grand Ave, Bellingham, WA 98225-4048.
Defendant appeals his conviction of two counts of second degree assault and the trial court's order denying his motion for a new trial, arguing inter alia that the trial court deprived him of his right to a unanimous verdict, that the State failed to present sufficient evidence to support a conviction for one count of second degree assault, and that the jury instructions relieved the State of its burden of proof. We affirm as to Count 1, and reverse and remand for a new trial as to Count 2.
FACTS
After 9:30 p.m. on February 4, 2003, following a family outing to a Dairy Queen, Jason Bunger drove his F-150 pickup truck onto private property along a river levee in Whatcom County to show his eight-year-old son Austin some fishing spots. When they came to a gate, Bunger stopped and got out of the truck to see if he could open it, considered, and maybe attempted, pulling the gate down with his truck, and then turned the truck around to return by the way that he and Austin had come. On the way back, Bunger stopped the truck, and, while the engine was running and the exterior headlights and taillights were on, turned on the interior lights so that Austin could pick out a CD to play on the way home. As he prepared to resume driving, Bunger caught a glimpse in the rear view mirror of a man, bent over a little, with the tail lights shining on his face, walking up behind the truck at a fast pace. Startled, Bunger drove off quickly. When Bunger heard a gunshot, he reached over and grabbed his son and pulled him down, and as he drove faster, he heard what he thought was a second shot hitting the top of the cab. When they reached the main road, Bunger checked Austin and himself for injuries, and then called 911. When Austin looked at the back window of the truck, he saw a bullet hole on the passenger side, about four inches from where his head had been, and observed that the window was shattered but did not fall out. Father and son waited at the main road for police to arrive.
The State charged Michael Anagnos, who owned the property where the shots were fired, with two counts of second degree assault with a deadly weapon. At trial, the State presented testimony from Bunger, Austin, and several officers. Officer Smith testified about his examination of the bullet hole and his opinion that the bullet entered the rear window with a slight downward trajectory, indicating that the shot had been fired from shoulder level by a person approximately six feet tall. Smith opined that the bullet could not have been fired at the ground and then ricocheted through the back window of the truck.
Anagnos testified that while he was walking on his property that night, a truck drove by and almost hit him, causing him to fall and feel a sharp pain in his abdomen. According to Anagnos, when the truck appeared to be reversing to take another run at him, in self-defense he fired two warning shots into the ground. He did not believe that he had hit the truck. He returned home, where he took pain medication and fell asleep. Later, police arrived and arrested him.
Anagnos appeals the jury's general verdict of guilty, arguing that the trial court deprived him of his right to a unanimous verdict, that the State failed to present sufficient evidence to support a conviction for second degree assault against Austin, and that the jury instructions relieved the State of its burden of proof. Anagnos raises additional issues in his Statement of Additional Grounds for Review.
ANALYSIS
A criminal defendant's right to a unanimous jury verdict includes, in some situations, the right to express unanimity as to the means by which the defendant committed the crime. State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994) (citing Const. art. 1 sec. 21). If substantial evidence supports each of the alternative means of committing the crime submitted to the jury, unanimity is not required as to the means of commission. State v. Whitney, 108 Wn.2d 506, 508, 739 P.2d 1150 (1987); State v. Arndt, 87 Wn.2d 374, 376, 553 P.2d 1328 (1976). But if one of the alternative means fails for lack of substantial evidence and there is only a general verdict, the verdict cannot stand unless the reviewing court can determine that the verdict was founded on one of the means supported by substantial evidence. State v. Bland, 71 Wn. App. 345, 358, 860 P.2d 1046 (1993).
Here, the trial court instructed the jury on all three common law definitions of assault battery, attempted battery, and common law assault as follows:
An assault is an intentional touching or striking or shooting of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking or shooting is offensive if the touching or striking or shooting would offend an ordinary person who is not unduly sensitive.
An assault is also an act, with unlawful force, done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted. An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the act[or] did not actually intend to inflict bodily injury.
Clerk's Papers at 82.
Anagnos first contends that jurors may have believed that the phrase `shooting of another person' in the first definition, describing actual battery, includes shooting in the direction of another person, such that the verdict could be based on that definition despite the lack of evidence of actual battery thereby relieving the State of its burden to prove an assault by means of actual battery. But the State disavowed actual battery as a basis for conviction during closing argument, leaving only the second and third means for consideration by the jury. Nothing in the record indicates that the jury was confused by the State's election to disavow actual battery as a possible means. Thus the question before us is whether we can determine that the verdict as to either victim necessarily was founded on another alternative means that was supported by substantial evidence.
We recommend that juries be instructed only as to alternative means that the State has supported by the introduction of substantial evidence, and that it intends to argue as a basis for conviction. Here, the prosecutor disavowed the actual battery means and told the trial court that the State was relying only upon the attempted battery and fear and apprehension means. Accordingly, the jury need not have been instructed as to the actual battery means.
In State v. Rivas, 97 Wn. App. 349, 352, 984 P.2d 432 (1999), the jury was instructed on all three common law definitions of assault, but no evidence was offered at trial of actual battery or attempted battery, two of the three alternative means. Because the charging document identified the defendant's act of holding a knife to the victim's throat as the assault and the prosecutor focused only on the common law assault alternative means, arguing that the defendant held the knife over the victim and threatened her, causing her fear and apprehension, this court held that there was no danger that the jury's verdict rested on an unsupported alternative means, and affirmed the verdict. Id. at 353-55.
In Bland, 71 Wn. App. at 348, the defendant approached Jefferson, who was seated in a car, and shouted at him while pointing a gun at his chest. As Jefferson sped away, the defendant fired a shot toward his car, frightening Jefferson, and sending a bullet through the window of a nearby house. The bullet broke the window and sprayed shattered glass onto Carrington, who was sleeping in his recliner. Id. at 348-49. The State charged the defendant with two counts of second degree assault one count as to each victim and the trial court instructed the jury on two alternative means of committing assault: actual battery and common law assault (fear and apprehension) as to each victim. Id. at 352-53. Although substantial evidence did not support the actual battery means as to the count involving Jefferson, the charging document, the trial record, and the special verdict form clearly demonstrated that the verdict was based on the common law assault means, the threatening of Jefferson with the gun and Jefferson's reasonable fear and apprehension. Id. at 354. Thus we affirmed the conviction as to Count 1.
On the second count, the State argued to the jury that the defendant assaulted Carrington by both charged alternative means: by touching him with the broken glass and by causing him reasonable apprehension and fear. Id. at 355-58. But Carrington did not experience fear and apprehension before the bullet came through the window, because he was asleep, and no evidence was presented that he feared future injury thereafter. Id. at 355. Although substantial evidence supported one alternative means actual battery this court could not determine whether the jury relied on the failed means common law assault to convict as to Carrington, and reversed the verdict for that count. Id. at 358. Count 2 was remanded for a new trial but only as to the actual battery means the only means that was supported by substantial evidence.
In State v. Nicholson, 119 Wn. App. 855, 857, 84 P.3d 877 (2003) the defendant placed a knife blade close to the stomach of a 20-month-old child and taunted the child's mother. At trial on a charge of second degree assault of a child, the trial court instructed the jury on all three alternative means of assault and the State argued that the elements of common law assault were met if the jury found that the child's mother was placed in fear and apprehension of injury to the child. Id. at 861-63. Because the trial court erred in permitting the State to argue that fear and apprehension occurring in a third party rather than the victim supported a finding of the fear and apprehension element of common law assault, and the general verdict did not allow a determination of whether the jury relied on that evidence, this court reversed the conviction and remanded the case for a new trial. Id. at 863-64.
Here, the charging document simply states in Count 1 that Anagnos `did knowingly assault Jason Bunger, a human being, with a deadly weapon[.]' Count 2 differs only in that it names Austin as the victim. This document does not suggest a particular alternative means of committing assault with a deadly weapon.
Although the prosecutor told the trial court that the State was relying on both the attempted battery and fear and apprehension means, during argument the prosecutor focused almost entirely on the third alternative means, common law assault, stating:
`An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury.' How does that fit our facts? An act done with the intent to create apprehension, that would be in the mind of Austin and his father Jason. What else does it say? `And which in fact creates in another a reasonable apprehension of imminent fear of bodily injury,' and I've got in quotes there, `even though the act did not actually intend to inflict bodily injury.'
That's interesting when we think of assault. Somebody punching me in the face, I've been assaulted. But the law is making a distinction. There you don't have to actually have a harm. If I swing at you and miss, that's an assault. But not a battery because I didn't naturally batter you. Here they're saying you can commit an assault if you create in somebody else's mind a sense of apprehension and fear. You point a gun at them. You haven't assaulted them, you haven't injured them in any way. If you find it's reasonable for them to react that way.
So in this case we have two pieces of evidence that pertains to that and that's firing two shots, the second, which we assume, perhaps the first, of which went through the back window. Did that reasonably — whoever did that we only have one person with a gun, that's the defendant. Did he intend to create a sense of apprehension? Clearly he did. And second, did they actually feel that sense of apprehension? Clearly they did. That's an assault.
Verbatim Report of Proceedings 12/17/03 at 343-44. Anagnos does not argue that the prosecutor thereby elected to rely only on the fear and apprehension means. To the contrary, Anagnos argues that there was no adequate election to rely only on the third means.
As to Count 1, Bunger testified that he was `startled' when he saw Anagnos approach the truck, was `really startled' when he heard the first shot, and `really freaked out' when he heard the second shot, because `it really became apparent I was in a very dangerous situation.' Verbatim Report of Proceedings 12/15/03 at 39-40. Based on this record, there is substantial evidence to support a finding that Anagnos assaulted Bunger in a manner fitting clearly within the third alternative means for committing assault. In addition, Deputy Smith's testimony was clear that it was a physically impossible that the bullet that entered the back window of the truck could have ricocheted from a shot that was aimed into the ground, and that the bullet had to have been fired into the truck from shoulder height. As the prosecutor properly argued, the jury could reasonably infer that a person who aims a firearm from shoulder height into the back window of a fleeing vehicle that he knows to be occupied intends to injure any occupant of the vehicle, regardless of whether he knows how many occupants there may be and regardless of whether a bullet strikes any of the occupants. Thus, we conclude that Count 1 should be affirmed.
As to Count 2, Anagnos contends that substantial evidence does not support a finding that the shooting created in Austin a reasonable apprehension and imminent fear of bodily injury, and here we agree with Anagnos. Austin testified that he did not hear any shots. During direct examination the following exchange occurred:
Q Did he stop at some point?
A Well, as soon as I heard the noise I thought he had a flat tire.
Q Why did you think he had a flat tire?
A Because it sounded like his tire popped.
Q Can you describe that sound to us?
A Like a really loud boom.
. . . .
Q Do you ever get off the road by the river and go someplace else?
A Yeah. We waited for awhile, then my dad called the cops.
. . . .
Q Did the cops stop?
A Yeah.
Q Did they talk to you?
A Yeah.
Q Did they look at your truck?
A Yeah. See, they were trying to find the bullet.
Q Did you see the bullet?
A No. When I looked back there I saw a bullet hole and the window was shattered but it didn't break.
Q Where was that? Where on the window?
A On the passenger side.
Q So how did you feel about all this?
A Scared.
Verbatim Report of Proceedings 12/15/03 at 82-84.
It is clear from this record that Austin did not see Anagnos or identify the sound that he heard as gunshot. He did not testify that he felt fear or apprehension at the time of the gunshot or while Bunger was driving fast to get out of the area. Austin's testimony that he got scared later when he saw the hole in the window cannot be considered substantial evidence that he had apprehension or fear of any injury from Anagnos. See Bland, 71 Wn. App. at 355-56 (Carrington's fear, after the fact, about how close he had come to being injured could not support the fear and apprehension means). Neither can the father's fear for his son's safety in light of the father's superior understanding of what was taking place be transferred to the son. See Nicholson, 119 Wn. App. at 863-64. Accordingly, we reverse as to Count 2.
But fear and apprehension of the victim is not required to prove attempted battery. See Bland, 71 Wn. App. at 355, citing State v. Frazier, 81 Wn.2d 628, 630, 503 P.2d 1073 (1972) (affirming a conviction for second degree assault in an attempted battery case where the victim was unaware that the defendant had shot at her). For the same reason that substantial evidence supports the attempted battery means of assaulting the father, substantial evidence supports that same means of assaulting the son. Following our remand, Anagnos may not be retried for assaulting 8-year old Austin by the fear and apprehension means, but he can be retried for assaulting the child by the attempted battery means.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Anagnos contends that he received ineffective assistance of counsel because his attorney failed to advise him of the consequences of his plea, failed to request a CrR 3.5 hearing and failed to request a continuance because Anagnos was taking pain medication during the trial, rendering him incompetent to testify or assist in his defense. To establish ineffective assistance, the defendant must show that counsel's performance was deficient and that prejudice resulted from the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987). We strongly presume that defense counsel's conduct constituted sound trial strategy. State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000). Thus, one claiming ineffective assistance must show that in light of the entire record, no legitimate strategic or tactical reasons support the challenged conduct. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). Prejudice is established where `there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.' McFarland, 127 Wn.2d at 335.
Relying on State v. McCready, 100 Wn. App. 259, 996 P.2d 658 (2000), Anagnos, who pleaded not guilty and went to trial, argues that his trial counsel was ineffective in failing to inform him that he would serve mandatory terms if convicted, and that his counsel was under an ethical obligation to discuss the plea with the defendant and to provide him with sufficient information to make an informed decision. McCready arose from a personal restraint petition after the defendant rejected a plea bargain, went to trial on the original charges, and was convicted. A reference hearing was held and the trial court found that counsel failed to advise the defendant of the minimum term that he must serve if convicted of the original charges; thus, the defendant was unable to intelligently consider the proposed plea bargain.
Here, we deal with a direct appeal, the record does not include any plea bargains that may have been discussed, and there can be no reference hearing outside the confines of a personal restraint petition. Accordingly, the McCready issue is not properly before us. We reject the direct appeal on this issue without prejudice to the right of the defendant to timely file a personal restraint petition and seek a reference hearing if he believes that he is in the same position as was the defendant in McCready. See generally McFarland, 127 Wn.2d at 338.
As to the CrR 3.5 issue, the record reveals that defense counsel addressed the court prior to trial, stating that although he agreed that statements made to police prior to discussions involving a search warrant and before Anagnos asked to speak to his lawyer would be admissible, if any officers attempted to testify regarding statements made after Anagnos's invocation of his right to counsel, he wished to address admissibility. The trial court then stated on the record that it would not admit testimony of any statements or lack of statements by the defendant after the time that the search warrant was executed without addressing the CrR 3.5 issue outside the hearing of the jury. Based on this record, Anagnos fails to demonstrate deficient performance or prejudice.
As to competency, the record reveals that Anagnos testified at trial cogently and consistently with the defense theory of the case. Nothing in the record supports his self-serving claim of incompetence or demonstrates prejudice. Anagnos fails to demonstrate ineffective assistance of counsel. Affirmed as to Count 1; reversed and remanded as to Count 2, with any retrial of Count 2 to be limited to the attempted battery means of committing the charged assault.
KENNEDY, ELLINGTON and APPELWICK, JJ., concur.