No. 34997-3-II.The Court of Appeals of Washington, Division Two.
January 23, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-04983-2, Beverly G. Grant, J., entered May 26, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Bridgewater and Penoyar, JJ.
HUNT, J.
Edward Michael Glasmann appeals his jury conviction for second degree assault.[1] He argues the State failed to establish that he intentionally ran over the victim’s leg with his car. In his statement of additional grounds (SAG),[2] he asserts that (1) he was denied his right to a fair trial because members of the jury allegedly observed him in handcuffs, and (2) he was denied effective assistance of counsel because his attorney failed to request a voluntary intoxication instruction. We affirm.
FACTS I. Assault
Edward Michael Glasmann and Angel Benson were romantically involved and engaged to be married. On the night of October 22, 2005, Glasmann and Benson went to dinner in Tacoma and rented a motel room in Lakewood to celebrate Glasmann’s birthday. Both Glasmann and Benson ingested methamphetamine, ecstasy, and alcohol over the course of the evening. In addition, Glasmann and Benson had been arguing throughout that day and evening.
Around midnight, their argument escalated. Glasmann hit Benson, who curled up into the fetal position to protect herself from his blows. Glasmann eventually told Benson that he wanted to go for a ride. They both left the motel room.
Outside the room, another hotel guest, Erika Rusk, witnessed Glasmann (1) pin Benson against the wall with one hand around her neck and repeatedly punch her with his other hand; (2) release Benson and kick her twice in the stomach; (3) drag her to the passenger side of his Corvette and got into the driver’s seat; (4) reach over to the open passenger door and attempt to pull Benson into the car by her hair; (5) pull forward from the parking stall while Benson was not fully in the car; and (6) run over Benson’s leg with his car.
Once in the car, Benson put the car into park, grabbed the keys, and ran into a mini-mart adjacent to the motel. Inside the mini-mart, she hid on the floor behind the counter. As Rusk watched, she was calling 911 and reporting these events to dispatch.
Lakewood Police Officers Timothy Borchardt and David Butts arrived to find Glasmann’s Corvette parked in the roadway. As they approached, they observed Glasmann exit his Corvette, run over to the mini-mart, and climb into three separate cars, apparently hoping to steal one and escape.
Their guns drawn, Officers Borchardt and Butts ordered Glasmann to show his hands. Glasmann refused to comply, and told the officers that he had a gun. When Glasmann pushed a man aside in order to access the third car, Officer Butts approached the open driver’s side window and sprayed pepper spray into Glasmann’s eyes. Glasmann then exited the vehicle through the passenger door and ran into the mini-market, pursued by a group of officers.
Glasmann continued to yell, “[S]hoot me, I have got a gun. Go ahead and shoot me.” 4 Report of Proceedings (RP) at 116. As if it were a weapon, he pointed a black object at the officers. Eventually, Glasmann ran behind the counter, grabbed Benson, put his arm around her neck in a choke hold, and pulled her body in front of his, threatening to kill her. Glasmann then dropped to the floor, holding Benson between him and the officers.
When Benson was able to “wiggle her way down from [Glasmann’s] body,” Officer Ryan Hamilton applied a stun gun to Glasmann. 4 RP at 125-26. The officers then removed Benson. They took Glasmann into custody, determined he was not armed, and realized he had brandished a stereo remote control as a weapon.
II. Follow-up
Benson was taken to Tacoma General Hospital, where Dr. William Eggebroten examined and treated her injuries: several contusions and abrasions on her right leg, hip, and arms. While at the hospital, Officer Borchardt and Officer Butts interviewed Benson about the incident. She told them that Glasmann had threatened to kill her if she did not get into his Corvette in the motel parking lot. Benson was released a few hours after arriving at the hospital.
A few days later, on October 27, 2004, the Lakewood police domestic violence detective met with Benson to conduct a follow-up interview. The detective examined only those injuries that Benson’s clothing did not cover. He did not take pictures at the time because they were in a public place. But Benson agreed to have a friend take pictures of her injuries and send them to him the following morning.
III. Procedure
The State charged Glasmann with one count of first degree assault under RCW 9A.36.011(1)(a); one count of attempted first degree robbery under RCW 9A.56.190, .200; RCW 9A.28.020; one count of first degree kidnapping under RCW 9A.40.020(1)(a); and one count of obstructing a law enforcement officer under RCW 9A.76.020(1).
At trial, Glasmann, Benson, the officers, and Rusk all testified, resulting in conflicting testimony as to the events that occurred on the night in question. The State also submitted the 911 dispatch tape,[3] the mini-mart surveillance tape,[4] and the recorded conversations between Glasmann and Benson while Glasmann was in the Pierce County Jail awaiting trial.
Apparently on one occasion, three jurors observed Glasmann in handcuffs outside the courtroom. Glasmann’s counsel requested a mistrial. The trial court questioned jurors number three and thirteen about their observations of Glasmann outside the courtroom. Both jurors testified that they did not form impressions of Glasmann based on their observations of him in the hallway. One of the jurors testified that he saw Glasmann on the elevator “for a second.” The other juror testified that he turned a corner in the courthouse and saw Glasmann for “a split second” before he turned around and left. When the court asked the two jurors whether they could follow an instruction telling them that they were not to consider the fact that they had seen Glasmann in the hall, both answered, “Yes.”
The officer who had been transporting Glasmann testified that the jurors who observed Glassman were between eight and ten feet away, and he (the officer) did not believe the jurors saw the handcuffs, because Glasmann was wearing a long sleeved shirt that covered the handcuffs and was holding a book in his hands. The trial court found no prejudicial effect and denied Glasmann’s motion for mistrial.
The jury convicted Glasmann of second degree assault, attempted second degree robbery, first degree kidnapping, and obstructing a law enforcement officer. Glasmann stipulated to his offender score, and the trial court sentenced him to a standard range sentence, totaling 198 months.
Glasmann appeals.
ANALYSIS I. Sufficiency of Evidence
Glasmann argues that the State failed to present sufficient evidence to prove the requisite intent to convict him of second degree assault. His argument fails.
A. Standard of Review
Sufficiency of the evidence is a question of constitutional magnitude, which an appellant may raise for the first time on appeal. State v. Alvarez, 128 Wn.2d 1, 13, 904 P.2d 754 (1995). When a defendant challenges the sufficiency of the evidence in a criminal case on appeal, we draw all reasonable inferences from the evidence in favor of the State and interpret all reasonable inferences from the evidence strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of sufficiency admits the truth of the State’s evidence and all inferences that an appellate court can reasonably draw therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff’d, 95 Wn.2d 385 (1980).
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact would have found guilt beyond a reasonable doubt for the crime charged. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
B. Second Degree Assault
RCW 9A.36.021(1)(a) provides: “A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: . . . Intentionally assaults another and thereby recklessly inflicts substantial bodily harm.”
Recklessly causing harm is not the same as intentionally causing harm. Thus, under the statute, second degree assault by battery requires an intentional touching that recklessly inflicts substantial bodily harm. It does not require specific intent to inflict substantial bodily harm.
State v. Esters, 84 Wn. App. 180, 185, 927 P.2d 1140
(1996), review denied, 131 Wn.2d 1024 (1997); see also State v. Keend, 140 Wn. App. 858, ___, 166 P.3d 1268, 1273 (2007); State v. Walden, 67 Wn. App. 891, 893-94, 841 P.2d 81 (1992) (defendant may be convicted of second degree assault if he intended to put another in apprehension of harm whether or not he intended to inflict or was incapable of inflicting that harm).
The State presented sufficient evidence to establish that Glasmann intentionally touched Benson, thereby recklessly inflicting substantial bodily harm. Rusk testified about the events she had observed from outside her motel room: Glasmann dragged Benson into the passenger seat of his car, got into the driver’s side, and drove forward while Benson was only half in the vehicle. Glasmann drove over Benson’s leg, reversed the car, and then pulled forward again onto her leg. And after running over her leg three times, Glasmann yanked Benson into the car by her hair and drove off. The State also presented the 911 dispatch tape, which corroborated Rusk’s testimony.
Although each provided slightly different details about the events, Benson,[5] the officers, and the physician who had examined Benson after the assaults, all testified. The jury also heard recorded telephone calls that Glasmann had made to Benson while awaiting trial, suggesting that they discussed details of their testimony before trial and/or that he threatened Benson to testify in a specific way at trial.
Glasmann testified that he had intentionally pushed Benson into the car, even though she had made it clear that she did not want to drive with him. He even acknowledged that his car had “rolled” onto Benson, after which he yanked her into the car. He claimed, however, that he had driven out of the motel parking lot with the intention of finding a hospital for her.
In essence, the jury had to weigh the conflicting testimonies of Glasmann, Benson, and the other witnesses. We defer to the jury’s finding Glasmann and Benson not credible.[6] Taken in the light most favorable to the State, the testimony provided sufficient evidence for the jury to find that Glasmann intentionally touched Benson when he dragged her into the car, pulled her hair, and ran over her leg, among other intentional touches, thereby recklessly inflicting substantial bodily harm, namely several contusions and abrasions on her right leg, hip, and arms. Accordingly, we hold that the State presented sufficient evidence to prove the elements of second degree assault.
II. Statement of Additional Grounds A. Right to Fair Trial
In his SAG, Glasmann first contends that the trial court denied his right to a fair trial under the federal and Washington state constitutions because members of the jury observed him in handcuffs outside the courtroom. We disagree.
On appeal, we evaluate an unconstitutional restraint claim under a harmless error standard. State v. Finch, 137 Wn.2d 792, 861, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). We presume an error violating a constitutional right to be prejudicial, unless it affirmatively appears from the record to be harmless beyond a reasonable doubt. Finch, 137 Wn.2d 859. Harmless error may be established when the evidence against the defendant is so overwhelming that no rational conclusion other than guilt can be reached Finch, 137 Wn.2d at 859.
But when the jury’s view of the defendant in shackles or handcuffs is brief or inadvertent, the defendant must make an affirmative showing of prejudice, and he carries the burden of curing any defect. State v. Elmore, 139 Wn.2d 250, 273, 985 P.2d 289 (1999), cert. denied, 531 U.S. 837 (2000). To demonstrate prejudice, the defendant must show “`a substantial or injurious effect or influence on the jury’s verdict.'” Elmore, 139 Wn.2d at 274 (quoting State v. Hutchinson, 135 Wn.2d 863, 888, 959 P.2d 1061 (1998)). There must be evidence in the record beyond the defendant’s bare allegations that seeing the defendant in shackles prejudiced the jury. State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982).
Glasmann fails to persuade us that some jurors observing him in handcuffs outside the courtroom influenced the jury’s verdict to his prejudice. See State v. Damon, 144 Wn.2d 686, 692, 25 P.3d 418 (2001). The record does support this contention: Neither juror testified that they had observed Glasmann in handcuffs outside the courtroom. Moreover, both jurors testified that they did not form impressions of Glasmann based on their observations of him in the hallway. In addition, the transporting officer explained to the trial court that the jurors had observed Glasmann from between eight and ten feet away and he did not believe they saw the handcuffs, because they were covered by Glasmann’s long-sleeved shirt and a book he was holding in his hands. The record shows no prejudice.
We hold, therefore, that the jurors’ inadvertent observations of Glasmann outside of the courtroom did not affect his right to a fair trial.
B. Effective Assistance of Counsel
Finally, Glasmann contends that his attorney rendered ineffective assistance of counsel by failing to request an intoxication instruction. This argument also fails.
A criminal defendant is entitled to a voluntary intoxication instruction if: (1) one of the elements of the crime charged is a particular mental state; (2) there is substantial evidence of ingesting an intoxicant; and (3) the defendant presents evidence that this activity affected his ability to acquire the required mental state. State v. Harris, 122 Wn. App. 547, 552, 90 P.3d 1133 (2004). In other words, the evidence must reasonably and logically connect Glasmann’s intoxication with his asserted inability to form the requisite level of culpability to commit second degree assault. See State v. Griffin, 100 Wn.2d 417, 418-19, 670 P.2d 265 (1983) State v. Kruger, 116 Wn. App. 685, 692, 67 P.3d 1147
(2003) (stating that mere intoxication is not enough; rather, the evidence must show the effects of the intoxicant).
Glasmann relies on a Division Three case, State v. Kruger, to support his contention that he was entitled to a voluntary intoxication jury instruction. In Kruger, however, Division Three found “ample evidence of [the defendant’s] level of intoxication on both his mind and body, e.g., his `blackout,’ vomiting at the station, slurred speech, and imperviousness to pepper spray.” Kruger, 116 Wn. App. at 692. But such is not the state of the evidence here.
Contrary to Glasmann’s assertion, the record does not contain ample evidence that his level of intoxication affected his ability or lack thereof to form the mental state required to establish the crimes charged. At best, the evidence merely showed that Glasmann had ingested unspecified amounts of methamphetamine, ecstasy, and alcohol the night of the incident See Kruger, 116 Wn. App. at 692. As such, Glasmann was not entitled to an involuntary intoxication instruction.
Because counsel’s performance was not deficient, we hold that Glasmann was not denied effective assistance of counsel when his counsel failed to request an intoxication instruction.
Affirmed.
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.
BRIDGEWATER, J. and PENOYAR, J., concur.