Opinion
No. 25077-6-III.
May 22, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-03451-4, Salvatore F. Cozza, J., entered April 3, 2006.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Brown, J.
Ian Harris appeals his convictions for second degree assault, obstruction of a law enforcement officer, and reckless driving. On appeal, he challenges the sufficiency of the evidence to support the jury's verdicts on all three charges. Mr. Harris also claims that the prosecutor committed misconduct by arguing facts that were not supported by the evidence. Holding that there was sufficient evidence to support the jury's verdicts and that Mr. Harris did not demonstrate that the prosecutor's statements were prejudicial, we affirm.
FACTS
Detective Jeff Thoet was investigating Ian Harris's potential involvement in a "chop-shop" operation. Mr. Harris was employed at an automotive garage. As part of this investigation, Detective Thoet parked in an unmarked vehicle in the alleyway behind the garage where Mr. Harris worked for purposes of surveillance. The detective took pictures of a passing truck that turned onto the alleyway near the garage. The truck parked in front of Detective Thoet's vehicle.
A "chop-shop" is a garage where stolen vehicles are dismantled so that their parts can be sold separately. See Black's Law Dictionary 258 (8th ed. 2004).
After Detective Thoet took the photograph of the truck, he observed the vehicle's reverse lights activate. The back tires of the truck began to spin as the driver backed the truck toward the detective's vehicle. The truck came within 15 feet of the detective's vehicle.
Detective Thoet testified that the truck was traveling in reverse fast enough to cause him to feel a sense of panic. He saw mud from the dirt-paved alleyway being thrown up from the spinning tires as the truck came at his vehicle. Detective Thoet also testified that the truck was being driven in an aggressive manner and that it appeared the driver of the truck was attempting to hit the detective's vehicle. A mechanic at a nearby garage also heard Mr. Harris's tires skidding on dirt and then on pavement.
Detective Thoet drove his vehicle onto a cross-street to avoid being hit by the truck. The truck also pulled onto the cross-street and left friction marks on the road due to its spinning tires. Detective Thoet exited his vehicle and confronted the driver of the truck. The detective drew his sidearm and ordered the driver to show his hands.
Mr. Harris, the driver of the truck, initially complied. Detective Thoet was wearing plain clothes at the time and did not recall orally identifying himself as a police officer. But the detective was wearing his badge when he confronted Mr. Harris. A bystander recalled that Detective Thoet informed Mr. Harris that he was a police officer when ordering Mr. Harris to show his hands.
Detective Thoet asked Mr. Harris for his identification. Mr. Harris looked at the detective's badge twice and stated, "I don't think so." Report of Proceedings (RP) at 149. He then sped away from the detective. After Mr. Harris fled in his truck, Detective Thoet called additional officers to assist in apprehending Mr. Harris.
Mr. Harris was charged with second degree assault, reckless driving, obstruction of a law enforcement officer, and second degree driving while license is suspended or revoked. Prior to trial, the parties entered a stipulation regarding the charge of second degree driving while license is suspended or revoked.
At trial, Mr. Harris called Daniel Philp to the stand. Mr. Philp was in Mr. Harris's truck when the confrontation with Detective Thoet took place. Mr. Harris asked Mr. Philp whether Mr. Harris had ever expressed concerns about being robbed. The trial court excluded this testimony as hearsay.
Mr. Philp testified that the truck was traveling at a speed of 10 to 15 miles per hour. He claimed that neither he nor Mr. Harris could tell that Detective Thoet was a police officer. But Mr. Philp also admitted that neither he nor Mr. Harris called police after being confronted at gunpoint.
During closing arguments, both defense counsel and the prosecutor commented on Mr. Philp's testimony. Defense counsel stated that Mr. Philp was, "not a very skilled public speaker," that his "demeanor didn't inspire a lot of confidence," and that Mr. Philp "was mistaken about some things." RP at 257. Defense counsel also argued that Mr. Harris believed Detective Thoet was a "prowler" when he observed the officer in the alley. RP at 261.
In the State's rebuttal closing argument, the prosecutor characterized defense counsel's closing remarks as an assertion that Mr. Harris was defending his property. The prosecutor then stated that there was no evidence to support this claim and referenced Mr. Philp's testimony. But the prosecutor incorrectly stated that Mr. Philp testified regarding a prior burglary on the property. There was no such testimony.
Mr. Harris was found guilty of all charges. He appeals.
ANALYSIS
I. Sufficiency of the Evidence
This court reviews a claim of insufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charge beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). All inferences from the evidence are drawn in favor of the State and interpreted most strongly against the defendant. State v. Schelin, 147 Wn.2d 562, 573, 55 P.3d 632 (2002). This court defers to the jury on the credibility of witnesses and the weight of the evidence. State v. Bonisisio, 92 Wn. App. 783, 794, 964 P.2d 1222 (1998). Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Second Degree Assault: Use of a Deadly Weapon
A person is guilty of second degree assault if he or she, under circumstances not amounting to assault in the first degree, assaults another with a deadly weapon. RCW 9A.36.021(1)(c). A "deadly weapon" is any weapon, including a vehicle, which is readily capable of causing death or substantial bodily harm based upon the manner in which the weapon is used, attempted to be used, or threatened to be used. RCW 9A.04.110(6).
"Substantial bodily harm" means bodily injury that involves temporary but substantial disfigurement, substantial loss or impairment of bodily function, or the fracture of any body part. RCW 9A.04.110(4)(b). Under this statutory language, the jury may look to the manner in which the defendant threatened to use the weapon in determining whether it constituted a deadly weapon. See State v. Taylor, 97 Wn. App. 123, 128, 982 P.2d 687 (1999) (quoting RCW 9A.04.110(6)).
Here, there was testimony that Mr. Harris drove his truck in reverse directly at Detective Thoet's vehicle. The evidence also shows that the truck accelerated quickly enough to kick up mud on the dirt alleyway and leave skid marks on a cross-street. Detective Thoet further stated that the truck was being driven in an aggressive manner, and that the way the truck was coming at him caused him to panic.
Taken in the light most favorable to the State, the jury had sufficient evidence to conclude that the threatened use of the truck was capable of causing substantial bodily injury. The fact that the truck did not actually collide with Detective Thoet's vehicle does not undermine this conclusion. A large vehicle accelerating in reverse at speeds between 10 and 15 miles an hour toward an individual in a parked car can be considered a "deadly weapon" used to commit second degree assault.
Second Degree Assault: Intent
Assault is not defined by statute. Therefore, this court looks to the common law definition of assault. See, e.g., State v. Byrd, 125 Wn.2d 707, 712, 887 P.2d 396 (1995). A person may commit an assault in one of three ways: an actual, consummated assault (or assault by battery); an attempt to inflict bodily injury upon another, along with the apparent present ability to give effect to the attempt if not prevented; and by putting another in apprehension of harm whether or not the individual is capable of inflicting or intends to inflict harm. Id. at 712-13.
Unless the defendant is charged with an assault by battery, the State must prove that the defendant had the specific intent either to create apprehension of bodily harm or to cause bodily harm as an essential element of second degree battery. Id. at 713. Specific intent can be inferred from the surrounding facts and circumstances. State v. Pierre, 108 Wn. App. 378, 386, 31 P.3d 1207 (2001).
Here, Mr. Harris asserts that there is insufficient evidence that he had the specific intent to create apprehension of bodily harm or to actually cause bodily harm. But a jury could infer otherwise from the facts of this case. Detective Thoet testified that Mr. Harris drove his truck in reverse directly at the detective's vehicle. The truck accelerated fast enough to kick up mud. It is reasonable to infer from Mr. Harris's behavior under the circumstances that his aggressive manner of driving was intended to create apprehension in Detective Thoet.
Obstruction of a Law Enforcement Officer
A person is guilty of obstructing a law enforcement officer if that individual willfully hinders, delays, or obstructs any law enforcement officer in the official discharge of that officer's duties. RCW 9A.76.020(1). The requirement of willful obstruction generally requires that the defendant had knowledge of the officer's status as a law enforcement officer or public servant. See State v. Ware, 111 Wn. App. 738, 742-43, 46 P.3d 280 (2002). Mr. Harris challenges the sufficiency of the State's evidence to prove that he had such knowledge.
An officer is performing official duties so long as that officer is acting in good faith and is not engaging in a "frolic" of his or her own, and so long as the detention is not arbitrary and harassing. State v. Turner, 103 Wn. App. 515, 526, 13 P.3d 234 (2000). A verbal identification made by a plain-clothed, undercover officer in the presence of a marked police car and another uniformed officer is generally sufficient to establish that the defendant knowingly obstructed a police officer in the discharge of his or her duties. See State v. Hudson, 56 Wn. App. 490, 496, 784 P.2d 533 (1990).
Here, Detective Thoet was not in the presence of other officers at the time he confronted Mr. Harris. But he did testify that he was displaying his badge and that Mr. Harris looked at the badge twice before speeding away. Another witness also testified that Detective Thoet identified himself as a police officer. While Mr. Philp indicated that neither he nor Mr. Harris could see the badge, the question of whether Mr. Harris looked at the badge was a fact question for the jury to resolve. See, e.g., In re Det. of Halgren, 156 Wn.2d 795, 811, 132 P.3d 714 (2006).
There was sufficient evidence from which a jury could conclude that Mr. Harris had knowledge of Detective Thoet's status as a law enforcement officer who was engaged in the discharge of his official duties.
Reckless Driving
A defendant is guilty of reckless driving if he or she "drives any vehicle in willful or wanton disregard for the safety of persons or property." RCW 46.61.500(1). Mr. Harris asserts that there was no evidence that he drove his vehicle in such a manner. His assertion is without merit. The mental state of willful or wanton disregard for safety may be inferred from the defendant's conduct. State v. Amurri, 51 Wn. App. 262, 265, 753 P.2d 540 (1988).
Mr. Harris drove his truck directly at Detective Thoet's vehicle while the truck was in reverse. The truck was traveling at a high enough rate of speed to kick up mud in the alleyway and leave skid marks on the street. Mr. Harris asserts that his driving was not reckless because he did not exceed the speed limit. Speeding is prima facie evidence of reckless driving. See Amurri, 51 Wn. App. at 266; RCW 46.61.465. But there is no precedent suggesting that the absence of speeding precludes a jury from finding that a defendant committed the offense of reckless driving.
A jury could conclude from the speed of Mr. Harris's driving while traveling in reverse, the fact that he was driving his truck directly toward another vehicle, and the testimony that his driving style was aggressive, that Mr. Harris was driving in willful and wanton disregard for persons or property.
II. Prosecutorial Misconduct
"Where improper argument is charged, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments as well as their prejudicial effect." State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). To demonstrate prejudice, a defendant must show that there is a substantial likelihood that the prosecutor's misconduct affected the jury's verdict. State v. Schlichtmann, 114 Wn. App. 162, 167, 58 P.3d 901 (2002). This court views the prosecutor's remarks in the context of the total argument, the issues presented in the case, the evidence addressed in the arguments, and the instructions given by the trial court. Russell, 125 Wn.2d at 85-86.
If the comment was not objected to at trial, this court reviews the alleged misconduct for whether the prosecutor's statements were so flagrant and ill-intentioned that the statements created enduring prejudice that could not have been cured by an instruction from the trial court. See, e.g., State v. Gregory, 158 Wn.2d 759, 858-59, 147 P.3d 1201 (2006).
It may be improper for a prosecutor to refer to facts not in evidence before the jury. See Russell, 125 Wn.2d at 88. Here, the prosecutor stated that Mr. Philp testified about a previous incident of burglary at Mr. Harris's place of employment. The prosecutor was mistaken, as the trial court had previously sustained the State's objection to that evidence as hearsay.
As an initial matter, it is not clear that the prosecutor's remarks were improper. Mr. Harris may have opened the door to those remarks by asserting during closing arguments that he thought Detective Thoet was a prowler. But in any case, Mr. Harris can demonstrate no prejudice based on these remarks.
Mr. Harris made several statements that indicated Mr. Philp's testimony was not credible. Mr. Harris even pointed out specific areas of Mr. Philp's testimony that were inaccurate during his closing arguments. Mr. Harris cannot show that the mistaken reference by the prosecution to Mr. Philp's testimony had an effect on the jury's verdict. In addition, Mr. Harris has not demonstrated that these remarks were either flagrant or ill-intentioned, or that a curative instruction from the trial court would not have obviated the prejudice.
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, A.C.J., Brown, J., Concur