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upholding verdict where evidence was presented on only one of three alternative means
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No. 41282-5-I.
Filed September 13, 1999.
David B. Koch, Nielsen Broman Associates P.L.L.C., for appellant.
Thomas L. Verge, Prosecuting Attorney, and Erik Pedersen, Deputy, for respondent.
Castulo Rivas, Jr., challenges for the first time the sufficiency of the evidence supporting two of three alternative means of assault, set forth in the jury instructions, underlying his conviction for second degree assault. Because we can determine from the record that the jury verdict was based on only one of the alternative means and substantial evidence supports that means, we affirm.
Rivas, his then girlfriend, K.R., and her young son shared an apartment. On the evening of November 5, 1996, K.R. and her son were visiting her mother, who lived in the apartment unit above K.R. and Rivas. Rivas had been out of the apartment all day and returned home around dusk. He testified at trial that he had been with friends drinking and smoking marijuana. After hearing Rivas return home, K.R. eventually went downstairs to see him, taking her son with her. Rivas and K.R. soon began arguing.
K.R. testified at trial that after several minutes of arguing, Rivas grabbed her by the arm while she still held her son, took her into the bedroom, and threw her onto the bed. He then pulled a knife from the front of his pants, held it above her, and said, "How about if I kill you while your son watches{?}"
The State charged Rivas with second degree assault. Because Rivas had two previous "most serious offense{s}," assault in the second degree and attempted assault in the second degree, the trial court sentenced him to life in prison without the possibility of parole.
The operative provisions of the persistent offender accountability act (POAA) are codified at RCW 9.94A.030(23) (defines "{m}ost serious offense"); RCW 9.94A.030(27) (defines "{p}ersistent offender"); and RCW 9.94A.120(4) (states in part, "A persistent offender shall be sentenced to a term of total confinement for life without the possibility of parole. . . .").
Rivas appeals.
Second Degree Assault
Rivas argues for the first time on appeal that two of the three alternative means of second degree assault contained in jury instruction 14 were not supported by substantial evidence. Thus, he argues that jury unanimity was not ensured, and we should reverse. We disagree.
See RAP 2.5(a)(3); State v. Lynn, 67 Wn. App. 339, 835 P.2d 251 (1992).
Jury verdicts in criminal cases must be unanimous as to the defendant's guilt of the crime charged. When the crime charged can be established by alternative means, jury unanimity as to the means is assured as long as substantial evidence supports each alternative means. If one or more of the alternative means is not supported by substantial evidence, the verdict will stand only if we can determine that the verdict was based on only one of the alternative means and that substantial evidence supported that alternative means.
State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994) (citing Const. art. 1, sec. 21).
Ortega-Martinez, 124 Wn.2d at 707-08.
State v. Bland, 71 Wn. App. 345, 354, 860 P.2d 1046 (1993).
The charge here was second degree assault. RCW 9A.36.021(1)(c) defines such assault as assault with a deadly weapon. Because "assault" is not defined by the criminal code, courts use the common law to define the crime. Here, instruction 14 described all three common law definitions of assault:
State v. Hupe, 50 Wn. App. 277, 282, 748 P.2d 263, review denied, 110 Wn.2d 1019 (1988) (citing State v. Krup, 36 Wn. App. 454, 457, 676 P.2d 507, review denied, 101 Wn.2d 1008 (1984)).
An assault is an intentional touching, striking, cutting, or shooting of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching, striking, cutting or shooting is offensive, if the touching, striking, cutting or shooting would offend an ordinary person who is not unduly sensitive. {This paragraph describes common law battery.}
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. {This paragraph describes common law attempted battery.}
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 actor did not actually intend to inflict bodily injury. {This paragraph describes common law assault}.
We agree that no evidence was offered at trial to support the first and second alternative means of committing assault. There simply was no evidence of either actual battery or attempted battery with respect to Rivas' use of the knife against K.R. Rivas did not touch, strike, or cut K.R. with the knife. Rivas also did not fail in an attempt to inflict bodily harm on K.R. But the charging document and the trial record support the second degree assault verdict based on common law assault, the third alternative means.
We first consider the charging document. Count II of the information states:
In that you, on or about the 5th day of November, 1996, in Skagit County, Washington, did assault {K.R.}, a human being, with a deadly weapon, to wit: held a knife to her throat, a felony, contrary to RCW 9A.36.021(1)(c), and against the peace and dignity of the State of Washington.
(Italics ours.)
It is clear from this document that the State's charge was based on Rivas wielding a knife against K.R. and no other act by him.
We next consider the trial record. At trial, K.R. testified that Rivas pushed her onto the bed, took a knife from the front of his pants, held it over her, and said, "How about if I kill you while your son watches{?}" She further testified that this threat created fear and apprehension of bodily injury.
Report of Proceedings at 63.
During closing argument, the State focused only on the common law assault alternative means to support the assault charge. The prosecutor stated: What makes {K.R.'s} story credible? Well, she remembers it in detail. She is upset by it. She is frightened by it. She is in fear and apprehension that he's going to kill her. He tells her he's going to kill her and lets her little baby watch.
Report of Proceedings at 364.
And in an attempt to respond to the jury's likely curiosity about why Rivas would have committed this crime, the prosecutor asked, "{W}hy would you assault another person while she is holding her child in her hands?" In posing this rhetorical question, the prosecutor again referred to the incident of common law assault that formed the basis for the State's charge. Additionally, the prosecutor focused solely on that incident when talking about Rivas' culpability:
Report of Proceedings at 361.
But nobody held a gun to his head and told him to go out and drink a 12-pac, smoke some dope, have a couple of shots and pick a fight with his girlfriend. That's a voluntary act, and to hold the knife over her and put her in fear and apprehension that she is going to be killed in front of her watching son, that's an intentional act.
Report of Proceedings at 367.
Even the defense tacitly acknowledged that only the common law assault with the knife formed the basis for the second degree assault charge. During closing argument, counsel for Rivas reminded the jury that Rivas denied committing the assault against K.R. Counsel stated:
There is not enough evidence because it's only her word against his word and there are no witnesses and there is no verifying evidence, and even her mother testified that when {K.R.} went upstairs and got her mother and her mother came back down, that's when they confronted him and told him to leave, {K.R.} never said anything to her about the assault. She didn't say anything at all. So there isn't any evidence that there was an assault other than one person's word against the other.
Report of Proceedings at 374-75.
The jury was entitled to believe that Rivas held a knife over K.R.'s head and threatened to kill her. It was also entitled to believe that the threat caused K.R. reasonable apprehension and imminent fear of bodily injury. Thus, as Rivas correctly concedes in his brief, there is substantial evidence to support a verdict that Rivas committed second degree assault only under the third alternative means. And, as we stated in Bland, a verdict will stand, even if one or more of the alternative means is not supported by substantial evidence, as long as the verdict was based on only one of the alternative means and substantial evidence supported that alternative means.
Bland, 71 Wn. App. at 354.
Although Rivas contended at oral argument that Bland is distinguishable because the jury there used a special verdict form and there was none here, that case still controls. The charging document and the record at trial are sufficient here to apply Bland to this case.
Because there was no danger that the jury's verdict rested on an unsupported alternative means, we affirm the judgment and sentence. The remainder of this opinion has no precedential value and will be filed for public record in accordance with the rules governing unpublished opinions.
Variance Between Information and Evidence at Trial
For the first time on appeal, Rivas also challenges the sufficiency of the information. He argues that his conviction should be reversed because of an unconstitutional variance between the charge stated in the information and the crime for which he was convicted. We do not agree.
Count II of the information charged Rivas with assault with a deadly weapon and stated that he "held a knife to {K.R.'s} throat." Rivas argues that this charge put him on notice that the State would attempt to prove that he assaulted K.R. by holding a knife to her throat. But at trial, the State presented evidence that Rivas assaulted K.R. by threatening her with a knife held over her head, not to her throat. Relying principally on State v. Lane, Rivas contends that the factual variance between the charging document on the one hand and the evidence and instructions at trial on the other permitted the jury to improperly convict him.
36 Wn.2d 227, 217 P.2d 322 (1950).
But Lane is distinguishable. There, Lane was charged with and convicted of rape. Under the relevant statute, rape could be committed either by forcibly overcoming the victim's resistance or by preventing her resistance by fear of immediate or great bodily harm. The information charged Lane with "forcible rape," the first alternative. At trial, the victim testified that she was prevented from resisting because Lane caused her to fear imminent bodily harm, the second alternative. The court instructed the jury as to both means of committing rape. Our Supreme Court reversed.
Lane, 36 Wn.2d at 230 (citing Rem. Rev. Stat., sec. 2435).
Unlike the facts in Lane, where the information specified the statutory alternatives of the crime, forcible rape, the facts here show that the information charged Rivas with assault in the second degree. The information did not specify under which of the three legal definitions of assault the State was proceeding. Rather, it included a brief statement of facts on which the State relied, that Rivas held a knife to K.R.'s throat. That the facts proved at trial were different from those alleged in the information does not give rise to the unconstitutional variance at issue in Lane where the specific crime charged differed from the one proved at trial. Rivas has not shown any prejudice by the variance in facts in the context of a charge of second degree assault in the information. Moreover, this situation does not amount to an amendment of the information as argued by Rivas.
Arson
A recitation of additional facts is necessary to understand the arson conviction and Rivas' challenges to it. After the assault against K.R. as described above, K.R.'s mother called the police. When they arrived, Rivas tried to provoke them so they would shoot and kill him.
When the police ignored his provocation, Rivas started a fire in the apartment. One of the officers broke down the door, entered the apartment, and located Rivas, who was in the living room holding a knife. When the officer released capstun into the air instead of firing at him, Rivas stabbed himself in the stomach with the knife.
The State charged Rivas with first degree arson.
Rivas challenges his conviction for first degree arson, claiming that the State failed to prove malice, an essential element of the crime. We disagree.
RCW 9A.48.020 states:
(1) A person is guilty of arson in the first degree if he knowingly and maliciously: . . .
(b) Causes a fire or explosion which damages a dwelling.
(Italics ours.)
Due process requires the State to prove beyond a reasonable doubt every essential element of the charged crime. Because malice is an essential element of the crime of first degree arson, there must be sufficient evidence that Rivas acted maliciously when starting the fire in his apartment. "There is sufficient proof of an element of a crime to support {a conviction} when, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that element beyond a reasonable doubt."
In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368, (1970).
State v. Bright, 129 Wn.2d 257, 266 n. 30, 916 P.2d 922 (1996) (citing State v. Bingham, 105 Wn.2d 820, 823, 719 P.2d 109 (1986)).
The court here instructed the jury that "{m}alice and maliciously mean an evil intent, wish, or design to vex, annoy, or injure another person." Under RCW 9A.04.110(12), "{m}alice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse. . . ."
Rivas argues that he set the fire only to bring about his own death by provoking the police to shoot and kill him. He contends that such action does not constitute malice. But even assuming his sole purpose in setting the fire was to harm only himself, malice can be inferred from the undisputed fact that he intentionally set the fire.
State v. Plewak, 46 Wn. App. 757, 763, 732 P.2d 999 (1987) (inference of malice proper where defendant deliberately set two fires); State v. Simmons, 28 Wn. App. 243, 247, 622 P.2d 866 (1980), review denied, 95 Wn.2d 1015 (1981) (malice may be inferred beyond a reasonable doubt where defendant deliberately set fire).
The State proved beyond a reasonable doubt the essential element of malice.
POAA
Rivas challenges on a number of grounds the application of the POAA to his sentencing. None of the grounds withstand scrutiny.
Equal Protection
Rivas argues that the POAA violates equal protection guaranties because it treats criminal attempts and completed crimes equally as "most serious offense{s}," whereas Washington's criminal code treats attempts as less serious than completed crimes. We reject this argument.
Under the equal protection clause of the Washington State Constitution, article 1, section 12, and the fourteenth amendment to the United States Constitution, persons who are similarly situated with respect to the legitimate purpose of the law must receive like treatment. We review a statutory classification that implicates a physical liberty interest under the rational basis test. "Under this test, a legislative classification will be upheld unless it rests on grounds wholly irrelevant to the achievement of legitimate state objectives." The party challenging the classification bears the burden of proving that it is purely arbitrary. As our Supreme Court has already held, the purpose of the POAA is "to improve public safety by placing the most dangerous criminals in prison {and to} reduce the number of serious, repeat offenders by tougher sentencing." The rational basis test requires only that the law's means be rationally related to its ends. Categorizing a felony attempt as a "most serious offense" is rationally related to the goal of placing the most dangerous criminals in prison and reducing the number of repeat offenders. The fact that under the criminal code, a first time attempt conviction results in a lesser sentence than a completed crime is irrelevant to the decision under the POAA to treat felony attempts as "most serious offense{s}." The POAA specifically targets repeat offenders; to include among those offenders persons who attempt to commit the "most serious offense{s}" is rationally related to the goal of imprisoning the most dangerous criminals and of reducing the number of repeat offenders.
In re Young, 122 Wn.2d 1, 44, 857 P.2d 989 (1993); State v. Coria, 120 Wn.2d 156, 169, 839 P.2d 890 (1992).
State v. Thorne, 129 Wn.2d 736, 771, 921 P.2d 514 (1996) (explaining that the intermediate level of scrutiny applies only when the statutory classification implicates both a physical liberty interest and a semisuspect class).
Thorne, 129 Wn.2d at 771.
Thorne, 129 Wn.2d at 771.
Thorne, 129 Wn.2d at 771.
Ex Post Facto
Rivas next claims that the POAA violates the ex post facto clause of the federal constitution by making his prior convictions more severe than they were when committed. We disagree.
In State v. Angehrn, we rejected this challenge to the POAA. There, this court noted that the "POAA's mandatory sentence of life without parole is triggered only upon the conviction of the third `most serious offense.'" Thus, it does not retroactively increase the punishment for prior offenses.
90 Wn. App. 339, 342-44, 952 P.2d 195, review denied, 136 Wn.2d 1017 (1998).
Angehrn, 90 Wn. App. at 343 (citing RCW 9.94A.030(23), (27), and RCW 9.94A.120(4)).
Angehrn, 90 Wn. App. at 343.
Moreover, where, as here, the third "most serious offense" is committed after the enactment of the POAA, a defendant has fair notice that conviction of that offense is punishable by life without the possibility of parole.
There was no ex post facto violation here.
Other Constitutional Challenges
Our Supreme Court has rejected the other constitutional challenges to the POAA made here. Thus, we only deal briefly with them in this opinion. Our Supreme Court has held that the POAA does not violate constitutional guaranties of a republican form of government. The POAA does not violate a defendant's procedural due process rights. The act is not a bill of attainder. And it does not violate the state or federal constitutional prohibitions against disproportionate sentencing or cruel and unusual punishment. We note that Rivas fails to demonstrate how the POAA sentence, when applied to him, amounts to cruel and unusual punishment or is disproportionate. To do so, he would need to distinguish his offenses from those at issue in the cases in which our Supreme Court rejected this challenge. This he fails to do.
State v. Manussier, 129 Wn.2d 652, 921 P.2d 473 (1996), cert. denied, 520 U.S. 1201 (1997); State v. Rivers, 129 Wn.2d 697, 921 P.2d 495 (1996); Thorne, 129 Wn.2d 736.
State v. Davis, 133 Wn.2d 187, 190, 943 P.2d 283 (1997) (concluding that "any challenge to the Three Strikes Law based on the `Guarantee Clause' would be frivolous").
Manussier, 129 Wn.2d at 682-83; Thorne, 129 Wn.2d at 776-79.
Manussier, 129 Wn.2d at 665-67; Thorne, 129 Wn.2d at 758-60.
Manussier, 129 Wn.2d at 674-79; Rivers, 129 Wn.2d at 712-15; Thorne, 129 Wn.2d at 772-76.
Manussier, 129 Wn.2d at 674-79; Rivers, 129 Wn.2d at 712-15; Thorne, 129 Wn.2d at 772-76; State v. Cruz, 91 Wn. App. 389, 959 P.2d 670 (1998), review granted, 137 Wn.2d 1008 (1999); State v. Ames, 89 Wn. App. 702, 709-10, 950 P.2d 514, review denied, 136 Wn.2d 1009 (1998).
We affirm the judgment and sentence.