STATE v. GROVE, 28293-3-II (Wash.App. 4-29-2003)

No. 28293-3-IIThe Court of Appeals of Washington, Division Two.
Filed: April 29, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Grays Harbor County Docket No: 01-1-00462-2 Judgment or order under review Date filed: 12/17/2001

Counsel for Appellant(s), Samuel Gregory Meyer, Attorney at Law, 402 Capitol Way S Ste 12, Olympia, WA 98501-1096.

Counsel for Respondent(s), Gerald R. Fuller, Grays Harbor Co Pros Ofc, 102 Broadway Ave W Rm 102, Montesano, WA 98563-3621.

BRIDGEWATER, J.

Jeffery C. Grove appeals his conviction of first degree assault while armed with a firearm, arguing that the charging document was defective, that the evidence was insufficient to support his conviction, and that the `to convict’ instruction was erroneous. We affirm.

Facts
In the early morning hours of September 29, 2001, Matthew Carter was at his residence with his wife and children, his friend Billy Holt, and his sister-in-law Wendy Grove and her two children. The Carters and the Groves lived in the same trailer park in Elma. Wendy’s husband, Jeffery Grove, had gone to Montesano earlier in the evening.

At about 3:00 a.m., Grove called Carter and asked for a ride from Montesano to Elma. Carter and Wendy went to pick Grove up and found him intoxicated. They dropped him off at another residence in Montesano and returned to the Carter residence. Soon thereafter, Grove appeared at the Carter residence and then went with Wendy to their residence.

Upon their arrival, the two began to argue. When Grove demanded sexual relations, a struggle ensued, and Grove threatened to get a gun and kill Wendy. Wendy fled to the Carter residence and told Carter that Grove had tried to rape her and was going to get the gun and kill her. Carter called 911 and Wendy went into a back bedroom.

Grove then banged on Carter’s door, asking to see Wendy. When Carter told him she was not there, Grove drove away. He returned after a short period of time and began banging on the windows, the side of the house, and the front door, yelling that Wendy had two seconds to get out of the house or he would kill her.

Carter called 911 again and heard gunshots while he was on the phone. Carter also heard windows breaking.

Elma Police Officer Ron Evans responded to Carter’s call and heard two gunshots after he stopped his car near Carter’s residence. He saw Grove running from the scene and ordered him to halt. Grove continued to run and tried to hide underneath a nearby trailer. After other officers arrived and arrested Grove, they found a gun and ammunition nearby.

The State charged Grove with assault in the first degree while armed with a firearm. The information alleged as follows:

That the said defendant, Jeffery C. Grove, in Grays Harbor County, Washington, on or about September 29, 2001, with intent to inflict great bodily harm, did assault another with a firearm[.]

Clerk’s Papers (CP) at 1.

At trial, Wendy Grove, Matthew Carter, and Officer Evans testified to the facts cited above. Wendy added that Grove knew she intended to sleep on a couch in the Carters’ living room. Carter added that he was making the second 911 call and walking between the living room and the back bedroom when the shots were fired. He found a bullet in the phone book a few days later. Billy Holt, who was staying in the Carter trailer, testified that he heard Grove yell that Wendy had three seconds to get out of the trailer. Holt testified that Grove then broke a window and fired eight or nine shots into the trailer.

Don Jones testified that he was visiting a friend in the trailer park on the night of the incident and heard gunshots as well as someone yelling S[k]ill you f-ing bitch, open the damn door, to me.’ Report of Proceedings (RP) at 87. He saw a man pounding on a trailer and shooting.

Detective Lane Youmans testified that he inspected the Carter trailer and found seven bullet holes in its side. He also found six bullet slugs in the living room. A firearms expert testified that the gun recovered at the scene fired the recovered slugs.

Jeffery Grove testified that he was so intoxicated that he could not remember what happened that evening.

In support of the State’s theory that Grove assaulted Carter while intending to harm his wife, the court gave the following `to convict’ instruction: Instruction 4.

To convict the defendant of the crime of Assault in the First Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the September 29, 2001, the defendant assaulted Matthew Carter;

(2) That the assault was committed with a firearm;

(3) That the defendant acted with intent to inflict great bodily harm on Wendy Grove; and

(4) That the acts occurred in Grays Harbor County, Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

CP at 16. The defense did not object to this instruction.

The jury found Grove guilty as charged, and the trial court imposed a standard range sentence. Grove now appeals his conviction.

Analysis I.
Grove first argues that the information was deficient because it did not specify the name of the assault victim.

All essential elements of an alleged crime, including statutory and court-imposed elements, must be included in the charging document in order to afford the accused notice of the nature of the allegations so that a defense can be properly prepared. State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). If a charging document fails to allege each element, the remedy is dismissal without prejudice. State v. Vangerpen, 125 Wn.2d 782, 792-93, 888 P.2d 1177 (1995).

RCW 9A.36.011(1)(a) provides that a person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm, assaults another with a firearm. Under the statute’s plain terms, the alleged victim’s name is not a statutory element of first degree assault. Nor does Grove cite any common law authority stating that an assault victim’s name is an essential element. Grove does cite State v. Clowes, 104 Wn. App. 935, 942, 18 P.3d 596 (2001), in which this court found an information insufficient because the alleged victim’s name was an essential element of the crime of interfering with domestic violence reporting. This holding was based in part on the State’s concession that the information was incomplete where it did not specify the underlying domestic violence crime and failed to allege that the defendant committed the crime against a family or household member. Clowes, 104 Wn. App. at 940.

We find more pertinent Division One’s holding that the victim’s name is not an element of fourth degree assault. State v. Plano, 67 Wn. App. 674, 679-80, 838 P.2d 1145 (1992); see also State v. Johnston, 100 Wn. App. 126, 134, 996 P.2d 629 (victim’s name is not an essential element of a crime), review denied, 141 Wn.2d 1030 (2000). In Plano, the court found neither statutory nor common law authority for the proposition that the name of the victim of an assault is an essential element and observed that other jurisdictions have held that the name of the victim is not an essential element of assault. Plano, 67 Wn. App. at 679-80 (citing People v. Waldron, 162 A.D.2d 485, 556 N.Y.S.2d 404 (1990) and State v. Phillips, 75 Ohio App.3d 785, 600 N.E.2d 825 (1991)). The court added that if the defendant needed more information, he could have filed a bill of particulars. Plano, 67 Wn. App. at 680.

Grove asserts that the name of the victim was an essential element of the assault charged in this case because of the potential for confusion as to whether Wendy Grove or Matthew Carter was the victim. Because the victim’s name is not an essential element of assault, however, Grove’s remedy for clarification was to request a bill of particulars. We find instructive the following language in State v. Noltie, 116 Wn.2d 831, 843-44, 809 P.2d 190 (1991):

Washington courts have repeatedly distinguished informations which are constitutionally deficient and those which are merely vague. If an information states each statutory element of a crime but is vague as to some other matter significant to the defense, a bill of particulars can correct the defect. In that event, a defendant is not entitled to challenge the information on appeal if he or she has failed to timely request a bill of particulars.

Noltie, 116 Wn.2d at 843-44.

Because the information at issue was not constitutionally deficient, and because Grove never requested a bill of particulars, we need not consider this issue further.

II.
In a pro se brief, Grove argues that the evidence was insufficient to support his conviction.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’ Salinas, 119 Wn.2d at 201. This court must defer 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).

Grove contends that the evidence at most supports a conviction of second degree assault because he fired recklessly without intending to hit anyone and because he was extremely intoxicated. He argues that the evidence here resembles that in State v. Ferreira, 69 Wn. App. 465, 850 P.2d 541 (1993), where the defendant was convicted of first degree assault based on his presence in a car from which several shots were fired into a home, causing injury to a resident. Although Ferreira admitted to the police afterward that he knew the shooting was going to take place, he argued on appeal that the evidence proved that the principals acted recklessly rather than intentionally.

The court observed that to establish first degree assault, intent to inflict great bodily injury must be shown. Ferreira, 69 Wn. App. at 468. “Evidence of intent . . . is to be gathered from all of the circumstances of the case, including not only the manner and act of inflicting the wound, but also the nature of the prior relationship and any previous threats.” Ferreira, 69 Wn. App. at 468-69 (quoting State v. Woo Won Choi, 55 Wn. App. 895, 906, 781 P.2d 505 (1989), review denied, 114 Wn.2d 1002 (1990)).

The court found that the circumstances presented did not establish the shooters’ intent to inflict great bodily harm on any occupants of the house, noting that the trial court rejected findings that they actually saw anyone in the house and that they fired into occupied areas. The court did find evidence that they intended to create apprehension or fear to the likely occupants of the house and thus were guilty of second degree assault. Ferreira, 69 Wn. App. at 469-70.

Here, there was ample evidence of Grove’s intent to inflict great bodily harm upon his wife based on his threats to her at their home and while she was inside the Carter residence. An assault occurred when Grove fired a loaded weapon into a room that he had reason to believe was occupied. See State v. Jimerson, 27 Wn. App. 415, 418, 618 P.2d 1027
(an assault is an attempt, with unlawful force, to inflict bodily injury on another with apparent present ability to give effect to that attempt if not prevented), review denied, 94 Wn.2d 1025 (1980). Bodily harm was not required. See RCW 9A.36.011(1)(a).

As to the effect of the defendant’s intoxication on his intent, that was a matter for the jury to decide. The trial court instructed the jury that `evidence of intoxication may be considered in determining whether the defendant acted with intent or intentionally.’ CP at 18 (Instruction 13).

The court also instructed the jury on the lesser included offense of second degree assault. The jury’s decision to reject that instruction and to instead convict Grove of first degree assault was amply supported by the evidence. III.

Grove also challenges Instruction 4, the `to convict’ instruction on first degree assault, arguing in part that it denied him his right to a unanimous verdict.

Generally, we will not review an appellant’s claim of trial court error where the appellant failed to object below. RAP 2.5(a). Because jury unanimity is an issue of constitutional magnitude, however, we will consider Grove’s arguments. RAP 2.5(a)(3); State v. Hupe, 50 Wn. App. 277, 282, 748 P.2d 263, review denied, 110 Wn.2d 1019
(1988).

Washington requires unanimous jury verdicts in criminal cases. Const. art. 1, sec. 21; State v. Stephens, 93 Wn.2d 186, 190, 607 P.2d 304
(1980). Grove contends that Instruction 4 violated this requirement by allowing the jury to convict him of assaulting either Matthew Carter or Wendy Grove. He claims that Instruction 4 suffers from the same flaw identified in the `to convict’ instruction at issue in Stephens. There, the defendant was charged with assaulting two named victims, but the `to convict’ instruction stated that the jury must find that he assaulted one victim or the other. Stephens, 93 Wn.2d at 189. The Supreme Court found the instruction erroneous because it allowed conviction if six jurors believed Stephens assaulted one victim and six believed he assaulted the other victim. Stephens, 93 Wn.2d at 190.

Contrary to Grove’s argument, Instruction 4 does not suffer from the same error. The instruction clearly stated that Grove was guilty of first degree assault if the jurors concluded that he assaulted Carter while intending to inflict great bodily harm on his wife. The instruction did not permit the jurors to disagree on the victim of the assault.

As the State points out, the Supreme Court authorized the wording of Instruction 4 in State v. Wilson, 125 Wn.2d 212, 883 P.2d 320 (1994).

There, the court explained that while first degree assault requires a specific intent, it does not under all circumstances require that the specific intent match a specific victim. Wilson, 125 Wn.2d at 218. `Consequently, once the intent to inflict great bodily harm is established, usually by proving that the defendant intended to inflict great bodily harm on a specific person, the mens rea is transferred under RCW 9A.36.011 to any unintended victim.’ Wilson, 125 Wn.2d at 218. The trial court thus did not err in instructing the jury that Grove committed first degree assault if it found that, while intending to inflict great bodily harm on Wendy Grove, he actually assaulted Matthew Carter.

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.

QUINN-BRINTNALL, A.C.J. and ARMSTRONG, J., concur.