Opinion
No. 59647-1-I.
May 12, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-08311-0, Douglass A. North, J., entered February 9, 2007.
Affirmed in part and remanded by unpublished per curiam opinion.
Steven Brewer appeals his convictions for felony harassment, third degree assault, and third degree malicious mischief. He contends that the trial court erred by failing to provide a "true threat" jury instruction and a fourth degree assault inferior degree offense instruction and that trial counsel was ineffective for not requesting these instructions. He also challenges his sentence on the misdemeanor conviction as exceeding the statutory maximum and failing to include a definite term of probation. Because he fails to demonstrate that a reasonable jury could find from the evidence that his threats were anything other than a true threat and because the evidence does not establish that only a fourth degree assault was committed, we affirm the convictions. But we remand for resentencing on the misdemeanor conviction for the trial court to impose a sentence within the statutory maximum and to include a definite and lawful term of probation.
FACTS
Juanita Hogan is one of Brewer's sisters. Their mother, Joanne Brewer, had been living with Brewer in 2006, had severe health problems, and spent most of her time in a wheelchair. On August I, 2006, Brewer's girl friend brought Joanne over to Hogan's apartment. Brewer then went to Hogan's apartment to look for his mother.
When Brewer arrived at Hogan's apartment, his 17 year old niece, Christina, was sitting outside on the stairs. He screamed at Christina and asked where his mother was. He then rushed into the apartment and screamed at his mother, causing her to cry. Christina asked Brewer to leave the mother alone, but he told Christina to shut up. Christina smelled alcohol on Brewer's breath and thought that he was drunk. Right before he drove away, Brewer yelled at Christina again and threatened to hit her. Hogan was not home at the time.
The niece was the daughter of Brewer's other sister, Teresa Brewer.
Hogan later came home with her seven year old daughter and noticed a newly-made hole in the kitchen wall. An hour and a half later, she heard a knock on her front door, and when she looked through the peephole, she saw only a young woman she did not recognize. But when she opened the door, Brewer appeared and demanded that she leave with him to go to his house. Hogan refused and asked him to leave because he had already damaged her apartment. He refused to leave, shoved her against the wall, and barged into the apartment.
He then went down the hallway, saw his mother, and screamed obscenities at her. Hogan's daughter started crying and hid behind a dining room chair. Brewer then reached into his pocket and picked up an unopened beer can. From 15 feet away, he hurled the beer can into Hogan's chest with a "real hard throw." Hogan said that the impact felt "like a baseball" hitting her chest. She again asked Brewer to leave, but he refused and insisted that she leave with him. When she refused, he rushed toward her, backed her up against the kitchen wall, and punched a hole in the wall. While his mother sat on a couch, he hollered at her and punched a hole in the wall only two or three feet above her head. As he finally left the apartment, Brewer rushed "full-power" at Hogan and hit her against the wall.
Brewer also threatened to come back with a gun and kill Hogan and her family. He warned that he would get into the apartment "`any way he could.'" Hogan testified that she believed Brewer when he threatened to kill her and that she thought she was going to die.
After Brewer left, Hogan called her sister, Teresa Brewer. Teresa testified that Hogan sounded scared and upset. Teresa called the police and medics arrived and examined Hogan. Hogan complained of chest pain from being hit in the chest with the beer can and back pain from being thrown against the wall. She was later seen by a doctor in the emergency room who prescribed painkillers for the pain in her chest.
When police officers arrived, Hogan was crying and distraught. After taking statements and photographing the damage to the apartment walls, the officers escorted Hogan, her mother, and her daughter to a different apartment complex because Hogan did not feel safe at home. For two nights after the incident, Hogan stayed at a friend's house because she was afraid that Brewer would come to her apartment.
Over a week after the incident, Brewer spoke to a detective and said that he had "bitched at" and yelled at Hogan, but only because she was supposed to take care of their mother at his house. Brewer admitted to making a hole in the wall but claimed that he merely put his hand on the wall. He also admitted that he had been drinking alcohol but claimed that he drank no more than four beers. He denied throwing a beer can at Hogan.
The State charged Brewer with felony harassment — domestic violence, assault in the third degree — domestic violence, and misdemeanor malicious mischief in the third degree — domestic violence. Brewer did not testify at trial. A jury convicted him as charged. The court sentenced Brewer to concurrent, standard range sentences of six months' confinement on the two felony convictions for harassment and third degree assault. On the misdemeanor malicious mischief conviction, the court imposed a 12 month suspended sentence and did not specify the length of probation in the misdemeanor judgment and sentence.
DISCUSSION
I. True Threat
Brewer first contends that the information and to convict instruction failed to include as an element of felony harassment that the alleged threats were "true threats." But as Brewer acknowledges in his reply brief, we have recently held in State v. Tellez that a "true threat" is not an essential element of the crime of telephone harassment that must be included in the information or the "to convict" instruction. We further held that "the essential element in the crime of telephone harassment is a threat which must be defined for the jury as a true threat." Thus, Brewer appears to limit his argument to claim that counsel's failure to request a true threat instruction amounts to ineffective assistance of counsel.
141 Wn. App. 479, 170 P.3d 75 (2007).
Id. at 484.
To establish a claim of ineffective assistance of counsel, the burden is on the defendant to show that (1) counsel's performance fell below a minimum objective standard of reasonableness and (2) that but for counsel's errors, there is a reasonable probability that the trial's result would have been different. The defendant must establish both prongs to prevail on an ineffective assistance of counsel claim. The State concedes that the first prong has been established and that counsel's failure to request a true threat instruction amounts to deficient performance. But the State contends that because the failure to propose this instruction was not prejudicial, reversal is unwarranted. We agree.
State v. West, 139 Wn.2d 37, 42, 983 P.2d 617 (1999) (citingStrickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Brewer argues that automatic reversal is required when the court fails to define an element because the jury is placed in a position of having to guess at the correct definition of the element. But he fails to show the prejudice necessary to establish his Page 6 claim of ineffective assistance or address the harmless error analysis required for reversal based on instructional errors. Our review of the record indicates that there was not a reasonable probability that the lack of a true threat instruction affected the verdict.
He cites State v. Allen, 101 Wn.2d 355, 678 P.2d 798 (1984), where the court reversed based on the trial court's refusal to give a defense proposed instruction defining intent in a prosecution for residential burglary. But in that case, the instructional error directly implicated the defense raised, which was lack of requisite mental state. Additionally, Allen did not involve a claim of ineffective assistance of counsel, nor did it address the failure to request a true threat instruction, which as the court recognized in State v. Johnston, 156 Wn.2d 355, 364, 127 P.3d 707 (2006), is subject to a harmless error analysis.
See State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002) (A jury instruction that omits or misstates an element of a crime is erroneous but may be harmless if, from the record, it appears beyond a reasonable doubt that the error did not contribute to the verdict.); Johnston, 156 Wn.2d at 364 (noting that instructional error involving the elements of a crime may be harmless error).
"A true threat is a `statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of intention to inflict bodily harm upon or take the life of another person.'" But a threat said in jest, idle talk or political argument is not a "true threat." Whether a true threat has been made is determined by applying an objective standard that focuses on the speaker.
Tellez, 141 Wn. App. at 482 (internal quotation marks omitted) (quoting State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004)).
Johnston, 156 Wn.2d at 361 (citing Kilburn, 151 Wn.2d at 43).
Kilburn, 151 Wn.2d at 44.
Here, viewing Brewer's threats in context, no reasonable juror in Brewer's position could have foreseen that his statements would have been interpreted as a joke, idle talk, or political argument. Rather, the facts established that he would have foreseen that Hogan would have interpreted his threats as a serious expression of his intent to inflict bodily harm or take the life of another person. Brewer punched three holes in Hogan's apartment walls, one which was above the head of his wheelchair-bound mother. He threatened his niece, screamed at his mother in way that caused her to cry, and scared Hogan's daughter such that she hid from him. He hurled a full can of beer at Hogan, striking her in the chest, and repeatedly slammed her against the wall. It was against this backdrop of violence and intimidation that Brewer threatened to come back with a gun to kill Hogan and her family, warning her that he would get into the apartment "any way he could." This threat was substantiated by the fact that he had just forced his way into the apartment. Nor did Brewer ever assert at trial that his threat to kill was a joke, idle talk, or puffery. Rather, in closing argument, he contended that Hogan had a motive to fabricate the threat. He never suggested that he was joking or that his threats amounted to anything other than true threats.
These facts are in stark contrast to State v. Johnston, where the court held that the failure to define true threat was not harmless error because there was a genuine dispute about whether the alleged threat was a joke or idle talk. There, an intoxicated airline passenger who was escorted off a flight and arrested told a police officer that he would blow up the airport using a Ryder truck and some nitro diesel fuel. The court accepted the State's concession that the trial court's failure to define "true threat" was not harmless, noting that the evidence was "close" on the issue of whether the statements were a true threat and the jury specifically asked if it could convict on the words alone.
156 Wn.2d 355, 364-65, 127 P.3d 707 (2006).
Id. at 358.
Id. at 364.
Nor do the facts here compare to those in State v. Kilburn, where the court held that the evidence was insufficient for a reasonable person in the defendant's position to foresee that the victim would perceive the statement as a serious threat. There, the Page 8 defendant was a high school student who smiled as he said he was going to bring a gun to school the next day and shoot everybody, starting with the girl to whom he spoke. The girl did not feel scared, knew the boy well, often joked with him and knew of no reason why he might wish to harm her. Brewer fails to establish that counsel's failure to request a "true threat" instruction affected the verdict and requires reversal.
151 Wn.2d 36, 53, 84 P.3d 1215 (2004).
Id. 39, 52.
Id. at 52-53.
We also note that unlike in Johnston and Kilburn, the error claimed here was raised in an ineffective assistance of counsel claim, which places the burden on the defendant to establish that counsel's error affected the outcome of the trial. See McFarland, 127 Wn.2d at 334-35 (defendant has burden of showing both deficient performance and prejudice).
II. Threat To Cause Bodily Harm in the Future
Brewer also argues that the to convict instruction failed to include language that he threatened "to cause bodily injury immediately or in the future." While Brewer did not object to this instruction, a claim that a jury instruction omitted an essential element of a crime implicates a manifest error of constitutional magnitude that may be raised for the first time on appeal. Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole, properly inform the jury of the applicable law.
State v. Stein, 144 Wn.2d 236, 241, 27 P.3d 184 (2001).
State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002).
Brewer was charged with felony harassment under RCW 9A.46.020(1), (2). RCW 9A.46.020(2)(b)(ii) provides that a person is guilty of felony harassment if "the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person." Subsection (1)(a)(i) provides that a person is guilty of misdemeanor harassment if the person knowingly threatens "[t]o cause bodily injury immediately or in the future to the person threatened or to any other person."
Here, the to convict instruction stated:
To convict the defendant of the crime of Felony Harassment as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about August 1, 2006, the defendant knowingly threatened to kill Juanita Hogan.
(2) That the words or conduct of the defendant placed Juanita Hogan in reasonable fear that the threat would be carried out;
(3) That the defendant acted without lawful authority; and
(4) That the acts occurred in the State of Washington County of King.
The State argues that because felony harassment only requires proof of a threat to kill, the to convict instruction did not require language referring to threats of bodily injury. But this argument ignores that the statute specifies that a threat to kill includes the elements set forth in subsection (1)(a)(i), which defines harassment as threats to cause bodily injury immediately or in the near future. We conclude that because killing necessarily includes bodily injury, the language "knowingly threatens to cause bodily injury" was not required to define the element of threat to kill.
But the State does not address whether the language "immediately or in the near future" was also required as part of the element of threat to kill. Rather, the State asserts that even if it was required, the failure to include it was harmless error. Brewer does not address the State's harmless error argument.
We first note that this language defines in part "threat to kill," and that our Page 10 holding in Tellez does not require that a definitional term be included in the to convict instruction. But we agree with the State that even if required, the omission of the language "immediately or in the future" did not affect the verdict. All of the evidence showed that Brewer threatened to come back with a gun to Hogan's apartment and kill her and her entire family and that he would get into the apartment "any way he could." Because he made these threats after he had just forced his way into her apartment and physically attacked her, a reasonable juror could not have found that these threats did not constitute a threat to act "in the future."
As provided in RCW 9A.46.020(2)(b), the "threat to kill" element in felony harassment includes harassment proscribed in RCW 9A.46.020 (1)(a)(i), which is defined as threats to cause bodily injury immediately or in the future.
III. Fourth Degree Assault Jury Instruction
Brewer next contends that the trial court erred by failing to give his proposed fourth degree assault instruction as an inferior degree offense instruction, despite the fact that he incorrectly proposed it as a lesser included instruction. Alternatively, he argues that counsel was ineffective for requesting the instruction as a lesser included instruction rather than an inferior degree instruction.
Unless the trial court's failure to give a jury instruction violates a constitutional right, a defendant cannot claim that the trial court erred by failing to give an instruction the defendant did not request. The right to an instruction on an inferior degree offense is statutory. Thus, Brewer cannot claim error by the trial court's failure to give an inferior degree offense instruction on fourth degree assault because he did not request one.
State v. Tamalini, 134 Wn.2d 725, 730-31, 953 P.2d 450 (1998); In re Detention of Greenwood, 130 Wn. App. 277, 288, 122 P.3d 747 (2005), review denied, 158 Wn.2d 1010 (2006).
See RCW 10.61.003 ("for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged . . . and guilty of any degree inferior thereto.").
In Tamalini, our state Supreme Court chose to consider the defendant's claim that the court erred by failing to instruct on an inferior degree offense, even though he proposed the instruction as a lesser included offense instruction rather than an inferior degree offense instruction. The court did so based on its acknowledgement that at the time, the terms "inferior degree" and "lesser included" were used interchangeably. But the court went on to clarify that these terms refer to two different concepts which are determined by two different tests. For a lesser included offense instruction, the elements of the lesser must be a necessary element of the charged offense and the evidence must support an inference that the lesser crime was committed. An inferior degree instruction is appropriate when (1) the statutes for both the charged offense and the inferior degree offense "`proscribe but one offense,'" (2) the charged offense is divided into degrees, one of which is the inferior degree offense, and (3) evidence establishes that the defendant committed only the inferior offense.
Id.
Id. at 729, 732 (citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)).
Id. at 732 (quoting State v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789 (1979)).
Here, the trial court correctly refused to give Brewer's proposed fourth degree assault lesser included offense instruction because fourth degree assault has a different mental state than third degree assault and is therefore not a lesser included offense. Brewer now argues on appeal that he was entitled to the fourth degree assault instruction because it was an inferior degree offense. But because he did not Page 12 raise this argument below and the distinction between lesser included and inferior degree offenses has been made clear for almost a decade, Brewer cannot claim that the trial court erred by failing to give an instruction that he did not request. Thus, we address his argument only in the context of his ineffective assistance of counsel claim.
State v. Sample, 52 Wn. App. 52, 55, 757 P.2d 539 (1988).
The State concedes that counsel's performance was deficient by incorrectly arguing that a fourth degree assault was a lesser included of third degree assault, but contends that Brewer demonstrates no prejudice by this error because the evidence did not establish only the inferior offense of fourth degree assault. Thus, the State argues, he was not entitled to an inferior degree instruction. We agree.
The jury should consider an inferior degree offense only when the evidence would permit a rational trier of fact to find that the defendant committed the inferior offense to the exclusion of the greater offense. A person commits third degree assault if he "[w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm." A person commits fourth degree assault when he assaults another "under circumstances not amounting to assault in the first, second, or third degree, or custodial assault." Thus, fourth degree assault does not include causing bodily harm by means of a "weapon or other instrument or thing likely to produce bodily harm."
State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
Here, the evidence showed that Brewer threw a full unopened beer can that struck Hogan in the chest and resulted in chest pain. Brewer did not present any affirmative evidence to dispute these facts. Thus, the evidence established bodily injury caused by a thing likely to produce bodily harm, which constitutes a third degree assault.
Both the medic and the doctor who examined Hogan testified that Hogan complained of chest pain, and the doctor prescribed a painkiller to treat the pain.
See State v. Speece, 115 Wn.2d 360, 363, 798 P.2d 294 (1990) (upholding the trial court's refusal to give a lesser offense instruction because there was no affirmative evidence in the record that would support an inference that defendant committed only the lesser offense of second degree burglary).
Bodily injury is defined as including "physical pain." See also RCW 9A.04.110(4)(a), WPIC 2.03.
Brewer argues that these facts also establish battery or "unlawful touching," which is a form of fourth degree assault. But even if that were true, Brewer is only entitled to an inferior offense instruction on fourth degree assault if the evidence establishes that he committed only fourth degree assault. As discussed above, the facts establish more than an offensive touching — they establish an offensive touching that resulted in bodily harm and was caused by use of something likely to produce bodily harm. Brewer does not show that any affirmative evidence established contrary facts. Thus, he was not entitled to an inferior offense instruction, and his claim of ineffective assistance of counsel fails.
See State v. Hall, 104 Wn. App. 56, 64, 14 P.3d 884 (2000),review denied, 143 Wn.2d 1023 (2001); State v. Stevens, 127 Wn. App. 269, 110 P.3d 1179 (2005), affirmed, 158 Wn.2d 304, 143 P.3d 817 (2006).
See Fernandez-Medina, 141 Wn.2d at 455-56; Tamalini, 134 Wn.2d at 732.
IV. Sentencing Issues
Finally, Brewer challenges his sentence, contending that the trial court erred by imposing a 12 month suspended sentence for his misdemeanor conviction for third degree malicious mischief. We accept the State's concession that the trial court exceeded its sentencing authority by imposing a 12 month suspended sentence for a misdemeanor conviction, which carries a statutory maximum term of 90 days. Accordingly, we vacate this sentence and remand to the trial court for resentencing within the statutory limits.
RCW 9A.20.021(3); State v. Saunders, 132 Wn. App. 592, 608, 132 P.3d 743 (2006), review denied, 159 Wn.2d 1017 (2007).
See Saunders, 132 Wn. App. at 608.
Brewer also requests remand for the trial court to correct the judgment and sentence on his misdemeanor conviction and specify a lawful probationary term. The judgment and sentence does not indicate the length of probation; it was simply left blank. We accept the State's concession that it was error to do so and that remand is appropriate. Accordingly, we remand for the trial court to enter a definite and lawful term of probation on the misdemeanor conviction.
See State v. Broadaway, 133 Wn.2d 118, 135-36, 942 P.2d 363 (1997) (directing remand to trial court to expressly provide for correct period of community placement when sentence failed to specify length of community placement required by law).
We affirm the convictions and remand for resentencing on the misdemeanor conviction of third degree malicious mischief.