STATE v. FLESHMAN, 28888-5-II (Wash.App. 11-13-2003)

STATE OF WASHINGTON, Respondent, v. JOHN E. FLESHMAN, Appellant.

No. 28888-5-IIThe Court of Appeals of Washington, Division Two.
Filed: November 13, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Mason County Docket No: 02-1-00051-7 Judgment or order under review Date filed: 05/30/2002

Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, P.O. Box 510, Hansville, WA 98340-0510.

Counsel for Respondent(s), Carol L. Case, Mason Co Pros Office, P.O. Box 639, Shelton, WA 98584-0639.

QUINN-BRINTNALL, A.C.J.

John Fleshman appeals his custodial assault conviction, challenging the sufficiency of the evidence and the admission of improper opinion testimony, and claiming that he was denied effective assistance of counsel. We affirm.

FACTS
On February 3, 2002, Mason County Corrections Officer Frank Davenport brought dinner to Fleshman, who was locked in a holding cell. Fleshman was agitated because Davenport had the trustees serve the food through the cuff port of the cell rather than by opening the door. Davenport explained that he was simply following orders. Fleshman passed his old tray out the cuff port and a trustee gave him a new tray and poured him a glass of milk. Davenport explained what happened next: `As I walk[ed] up to close the port door, he yelled something and threw the milk on me.’ Report of Proceedings (RP) at 18. Davenport was about a foot away at the time. The State then asked:

Q. To your observation, was there a deliberate throwing or splashing of the milk upon — onto your person?

[Defense Counsel]: Objection, Your Honor, it calls for opinion. [Prosecutor]: It’s an observation?

THE COURT: Deliberate deals with state of mind. Rephrase your question.

Q. To your observation, was this an accidental discharge of milk from the cup onto your person?

[Defense Counsel]: Objection, Your Honor, same.

THE COURT: Overruled.

Q. You may answer.

A. No, it was not accidental.

Q. Why do you say that?

A. With the comments that were made before and his action, his — it was an obvious toss to hit Officer Davenport. It wasn’t, it wasn’t, you know, I’m trying to pull my hand back. There was no accident there.

Q. And did — when you say with the comments that were made, what comments are we referring to? Did you record those in a report that you prepared?

A. Yes, I did.

Q. And did you record them with quotes around them to be able to indicate in the future the exact language that was used?

A. That’s correct.

Q. And would you please indicate for the record what the defendant had to say in conjunction with throwing the milk on you?

A. That I was a dick sucking nigger.

RP at 19-20. Fleshman gave a similar account of the events up to when the milk struck Davenport:

Q. What transpired when food was brought to your cell?

A. Well, they opened the cuff door, and, you know, I handed my old tray out, the lunch tray. And I asked Officer Davenport why I was being fed through the cuff door, and at which time he stated that he — that he was told to serve me that way. And, you know, the other meals that I had during that day had been, you know, they opened the door and handed me my food, and there was no problem or anything. There was no — you know, there was no problem.

. . . .

A. I, I called him a fellatio performing black man, and by that time they’d handed me my tray, my dinner tray. And I was holding my milk [c]up out, and they were just starting to fill my milk cup. When I said that, he said, that’s enough, that’s enough and reached for the cuff door to slam it shut, and I went to jerk my hand back in and the milk sloshed up on him. And the cup fell inside the room, and the door was finished slam shut, and that’s, that’s what happened.

RP at 29-31. During cross-examination, Fleshman again described the confrontation:

Q. So it’s your testimony that everything happened the way he said, except for the fact that you were actually pulling your hand back and that’s how the milk sprayed on him.

A. Actually, no, there was — he neglected to put the word liar into the statement that he said that I made. I called him a lying dick sucking nigger, and then he slammed the door on my — tried to slam the door on my hand and instinctively I jerked my hand back in.

RP at 31. The jury convicted Fleshman and the court imposed a standard, mid-range, eight-month sentence.

ANALYSIS
Sufficiency of the Evidence

Fleshman claims that the State failed to prove that he intentionally touched or struck Davenport in a harmful or offensive manner.

When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), this court defers to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).

The State charged Fleshman with custodial assault, a violation of RCW 9A.36.100, which provides:

(1) A person is guilty of custodial assault if that person is not guilty of an assault in the first or second degree and where the person: . . . .

(c)(i) Assaults a full or part-time community correction officer while the officer is performing official duties.

The key term here is `assault,’ which the trial court defined based on the common law definition:

An assault is an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive if the touching or striking would offend an ordinary person who is not unduly sensitive.

Clerk’s Papers (CP) at 36.

Here, the evidence taken in a light most favorable to the State is that while Davenport walked toward Fleshman’s cell door, Fleshman called him a `lying dick sucking nigger’ and threw his milk on him. This was sufficient for a jury to infer that Fleshman acted intentionally and that Davenport found it offensive. While Fleshman testified that Davenport was angered by the remark and that he, Fleshman, accidentally knocked over the milk while pulling his hands back into his cell, the jury could disbelieve this account and still convict. Sufficient evidence supported the conviction.

Lay Opinion Testimony

Fleshman next argues that the trial court erred in allowing Davenport to testify that he acted intentionally and not accidentally when his milk hit Davenport because this opinion invaded the jury’s province and affected the trial outcome.

Generally, no witness, lay or expert, may give an opinion, directly or inferentially, on the defendant’s innocence or guilt. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Such opinions are unfairly prejudicial because they invade the fact finder’s exclusive province. Black, 109 Wn.2d at 348. But if the testimony does not directly comment on the defendant’s guilt or veracity, helps the jury, and is based on inferences from the evidence, it is not improper opinion testimony. See City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993) (officer could give his opinion that defendant was intoxicated because it was based on the defendant’s physical characteristics), review denied, 123 Wn.2d 1011 (1994); State v. Farr-Lenzini, 93 Wn. App. 453, 465, 970 P.2d 313 (1999) (improper opinion on defendant’s guilt invades jury’s province).

Here, Davenport’s statements (1) did not directly comment on Fleshman’s guilt; (2) were helpful to the jury in assessing credibility; (3) were couched in terms of Davenport’s observations; and (4), as Davenport explained, Fleshman’s verbal assault and actions strongly suggested to Davenport that Fleshman acted intentionally. The comments did not usurp the jury’s duty to assess Davenport’s and Fleshman’s credibility.

Effective Assistance of Counsel

Alternatively, Fleshman argues that counsel denied him his right to effective assistance of counsel in failing to properly preserve his claim regarding Davenport’s opinion testimony. Fleshman concedes that he presents this argument only in case this court found that his objection was not properly preserved. Fleshman’s counsel objected to Davenport’s testimony below. We need not address this claim.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

ARMSTRONG and MORGAN, JJ., concur.