STATE v. MELTON, 50018-0-I (Wash.App. 12-15-2003)

No. 50018-0-IThe Court of Appeals of Washington, Division One.
Filed: December 15, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 01-1-09037-9. Judgment or order under review. Date filed: 02/12/2002.

Counsel for Appellant(s), David Bruce Koch, Attorney at Law 1908 E Madison St, Seattle, WA 98122.

Counsel for Respondent(s), John Bramwell Castleton Jr, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.

BAKER, J.

Howard Melton, III, was convicted for stabbing and robbing Michael Porosky. Melton’s central argument on appeal is that his convictions for assault in the first degree and robbery in the first degree merge. He also challenges the jury’s finding that he used a deadly weapon and the sufficiency of the evidence supporting his assault conviction. Because the assault and robbery convictions do not merge for sentencing purposes, the jury’s finding that Melton was armed with a deadly weapon was proper, and substantial evidence supports his assault conviction, we affirm.

I
Melton used a knife to stab and rob Porosky late at night in downtown Seattle. Earlier that night, Porosky had been drinking heavily with friends and was intoxicated by the time he arrived downtown. Porosky was at a bus stop when Melton approached and demanded money. Porosky, who had just been paid and had approximately $480 in his pocket, responded, `No, I’m not going to give you my money.’ Melton then brandished a knife and began chasing Porosky.

Because he was very intoxicated, Porosky could only remember trying to get away from Melton. He did not remember being stabbed or Melton stealing his money. He realized he had been stabbed when he saw a hole in his shirt and saw blood spurting out of his arm. Porosky was transported to the hospital where he received treatment for stab wounds to his arm and abdomen. He later discovered that his money was missing, and assumed it had been taken during the assault.

The police eventually identified Melton as the individual involved, and arrested him. Melton’s version of the facts differs significantly from Porosky’s. According to Melton, Porosky’s injuries were the result of a botched drug transaction. He claimed he was in the process of selling $20 worth of crack cocaine to Porosky when Porosky tried to pass off a $1 bill as a $20 bill. When Melton confronted Porosky, Porosky reached into his pocket, which made Melton nervous, and then shoved Melton aside. Melton then swiped at Porosky’s arm with a knife and began chasing him. When Porosky stopped, Melton stabbed Porosky in the stomach and demanded his money. Melton then noticed a $20 bill on the ground, picked it up, and left. Melton repeated his version of the events at trial, but added that the stab wound to the stomach was unintentional.

A trauma surgeon testified that Porosky was lucky that his injuries were not immediately life-threatening, but `[i]f there was a source of bleeding that wasn’t stopped, [Porosky] would have certainly died.’

The State charged Melton with robbery in the first degree and assault in the first degree. Each charge included a deadly weapon enhancement based on Melton’s use of the knife. A jury found Melton guilty, and he timely appeals.

II
Melton argues that his convictions for first degree robbery and first degree assault violate double jeopardy. The constitutional guarantee against double jeopardy protects against multiple punishments for the same offense.[1]

We first look at the statutory language to determine whether separate punishments are specifically authorized.[2] Neither the robbery nor the assault statutes expressly allow multiple punishments for a single act.[3] We therefore turn to rules of statutory construction to determine whether the two crimes may be punished cumulatively.[4]

The merger doctrine is one of the means used to determine whether the Legislature has authorized multiple punishments.[5] Merger only applies `where the Legislature has clearly indicated that in order to prove a particular degree of crime . . . the State must prove not only that a defendant committed that crime . . . but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes.’[6] Thus, we apply merger `only when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code.’[7]

Melton relies on State v. DeRyke[8] to support his argument that the merger doctrine applies to his case. In DeRyke, the defendant was convicted of kidnapping in the first degree and attempted rape in the first degree. On appeal, DeRyke argued that because the State relied on the kidnapping offense to elevate the degree of the attempted rape charge, the kidnapping conviction should merge into the attempted rape conviction.[9] Both the use of a deadly weapon and kidnapping may independently serve as a basis to elevate a rape charge to rape in the first degree.[10] The verdict in DeRyke did not specify upon which basis the jury decided. But under the principles of lenity, we interpreted the verdict in favor of DeRyke and assumed the jury based the attempted rape verdict on kidnapping.[11] Because the attempted rape charge was elevated to a higher degree based on the kidnapping of the victim, an act defined as a crime elsewhere in the criminal statutes, we held that the trial court erred by failing to merge DeRyke’s kidnapping offense into his attempted first degree rape offense.[12] As with the attempted rape charge in DeRyke, two independent bases may serve to elevate a robbery charge to robbery in the first degree: displaying a weapon and inflicting bodily injury.[13] And, as in DeRyke, we cannot determine upon which basis the jury relied in convicting Melton of first degree robbery. Neither the jury instructions nor the verdict forms required the jury to specify the basis. If the jury based its decision on displaying a weapon, merger does not apply because Melton’s other charge was first degree assault. Therefore, principles of lenity require us to interpret the verdict in Melton’s favor, and assume the jury based the verdict on inflicting bodily injury.[14]

Nevertheless, merger does not apply because `inflicts bodily injury’ is not defined as a crime elsewhere in the criminal code.[15] Assault is defined as a crime elsewhere in the criminal code but `inflicts bodily injury’ and `assault’ are not synonymous.[16] Assault requires intent, whereas `inflicts bodily injury,’ as used in the robbery in the first degree statute, does not.[17] A robbery can be elevated to first degree based on an injury inflicted inadvertently during the course of a robbery.[18] Because first degree robbery and first degree assault do not merge, we conclude that Melton was not placed in double jeopardy.

Melton next argues that the jury improperly found him to be armed with a deadly weapon because the knife he was carrying had a blade no greater than three inches. We disagree. A knife with a blade of three inches or less may constitute a deadly weapon if the knife has the capacity to cause death and is used in a way likely to produce or could easily and readily produce death.[19] The injuries inflicted by Melton’s use of the knife were so severe that, without medical attention, Porosky would have died. The evidence supports the jury’s finding that the knife was a deadly weapon.

Melton next argues that the evidence was not sufficient to support his conviction for first degree assault. Reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found guilt beyond a reasonable doubt.[20] We must consider `all reasonable inferences from the evidence . . . in favor of the State and . . . most strongly against the defendant.’[21] A challenge to the sufficiency of the evidence `admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’[22] To determine whether the necessary quantum of proof exists, we need to be satisfied only that substantial evidence supported the State’s case and we do not need to be convinced the defendant was guilty beyond a reasonable doubt.[23]

To convict Melton of first degree assault, the State was required to prove that Melton assaulted Porosky with a deadly weapon or acted with intent to inflict great bodily harm.[24] Great bodily harm means `bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ.’[25] A person acts with intent when he or she acts with the objective or purpose to accomplish a result constituting a crime.[26]
Intent may not be presumed, but `it can be inferred as a logical probability from all the facts and circumstances,’ including the manner and act of inflicting the wound.[27]

The facts and circumstances of Melton’s stabbing of Porosky yielded sufficient evidence for a jury to find that Melton intended to inflict great bodily harm. According to Melton, he ran after Porosky slashing at his arms with a knife. After Porosky stopped running, Melton stabbed Porosky in the abdomen using a knife with a blade approximately three inches long. Viewing the evidence in the light most favorable to the State, we find there is sufficient evidence to support the conclusion that Melton used force likely to produce great bodily harm. Although the surgeon did testify that Porosky `was not suffering life-threatening injuries at that time,’ he also testified that `[i]f there was a source of bleeding that wasn’t stopped, [Porosky] would have certainly died.’ Based on this testimony and the facts and circumstances of the stabbing, a rational jury could conclude beyond a reasonable doubt that Melton was guilty of first degree assault.

AFFIRMED.

APPELWICK and AGID, JJ., concur.