No. 50414-2-IThe Court of Appeals of Washington, Division One.
Filed: August 18, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 01-1-08530-8 Judgment or order under review Date filed: 05/03/2002
Counsel for Appellant(s), Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), James Morrissey Whisman, King Co Pros Aty/Appellate Unit, 700 5th Ave Ste 1850, Seattle, WA 98104-5009.
APPELWICK, J.
David Miller was convicted by a jury of third degree assault against Officer Kenneth Henson. Miller argues that his trial counsel was ineffective because she failed to object to a jury instruction that did not fully define assault, and because she did not object to the calculation of his offender score. Miller also contends that the trial court abused its discretion in admitting evidence of a back injury that Henson sustained during the altercation. Miller has failed to establish that he was prejudiced by either alleged failure of his trial counsel and therefore, has failed to establish an ineffective assistance claim. The trial court properly admitted evidence of the back injury as relevant to the assault prosecution. We affirm.
FACTS
On September 28, 2002, at approximately 11:30 p.m., Kent Police Officer Kenneth Henson pulled behind David Miller’s car after observing Miller driving erratically. Officer Henson turned on his emergency lights, got out of his car, and stood behind Miller’s car. As Officer Henson was calling in Miller’s license plate number to the police dispatcher, Miller’s driver’s side door swung open. Henson told Miller to close the door. Miller replied, `I’m not f’ing going anywhere.’
Miller got out of his car and approached Officer Henson. Officer Henson told Miller to get back into his car. Miller said, ‘[T]his is bullshit. . . . [Y]ou d[o]n’t have any fucking reason to stop [me].’ Miller continued to approach Officer Henson, so Henson pulled out his service weapon. Officer Henson told Miller to stop twice before Miller complied.
Miller stated that Officer Henson was not going to shoot him. Miller backed away. Officer Henson responded, `If you continue on this action I would have to shoot you.’ Miller then turned and ran. Henson, holding his flashlight, put his gun in his holster and ran after Miller. After a foot chase, Miller ran back to Officer Henson’s patrol car, jumped on the hood and ran up on the roof. Miller stomped on the roof of the patrol car. Miller then ran down the back of the patrol car and toward an apartment building.
Miller ran up the exterior staircase of the apartment building, but fell while attempting to pass Terry Martin, a resident, on the stairs. Officer Henson caught up to him just before the second floor landing. Martin testified that he saw Henson grab Miller halfway up the stairs, but did not see anything further.
After falling, Miller had positioned himself on his back with his feet pointed upwards. Miller then kicked Officer Henson in his left leg as Henson approached. Henson then tried to jump over Miller, but landed on top of him. Henson tried to grab Miller. Miller responded by punching or hitting Henson’s shoulders. Henson then hit Miller’s head twice with his flashlight. Miller yelled, `Help me; help me.’
Miller broke free of Henson and got to the second floor landing. Henson followed. Miller then pushed Henson against the railing of the landing. Henson hit Miller again on the head with the flashlight. Miller and Henson continued to grapple, until Henson got Miller into a neck hold. Henson held Miller in the neck hold until additional police officers arrived.
Officer Henson testified that he received a lower back injury from his altercation with Miller. Henson’s personal physician, Dr. K. Burnell Schaetzel-Hill, testified that he treated Henson after the altercation and diagnosed him with a lumbar strain and spasm.
Miller was also injured during the altercation. The result of those injuries required stitches to his head and face.
Miller was charged with assault in the third degree. RCW 9A.36.031. During trial, the prosecution submitted and the court accepted the following jury instructions concerning assault:
No. 8
An assault is an intentional touching or striking that is harmful or offensive regardless of whether any physical injury is done to the person.
No. 9
A person commits the crime of assault in the third degree when he or she assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault.
The defense did not object to these instructions. The Washington Pattern Jury Instruction includes the following language which was not given to the jury:
A touching or striking is offensive if the striking or touching would offend an ordinary person who is not unduly sensitive.
WPIC 35.50. During deliberations, the jury submitted the following inquires:
We are looking for clarification on Instruction #8-Is offensive defined as aggressive (ie, offence defence) [sic] or is it offending (ie, annoying)?
Does Instruction #9 (nine) stand alone as a definition of assault?
The court replied, respectively:
The court cannot provide you with additional definitions. You are to consider the instructions as a whole.
No. You should consider the instructions as a whole.
During Officer Henson’s testimony and Dr. Schaetzel-Hill’s testimony, defense counsel objected to the relevancy of testimony regarding Henson’s injuries. The trial court overruled both objections.
The jury convicted Miller of third degree assault. Miller received a Drug Offender Sentencing Alternative (DOSA) sentence at the mid-point of the standard range. Miller timely appeals.
ANALYSIS I. Ineffective Assistance of Counsel
Miller argues that he received ineffective assistance of counsel because (1) his trial counsel failed to object to the jury instructions on assault, and (2) his trial counsel failed to object to calculation of his offender score at sentencing. To establish an ineffective assistance claim the defendant must show:
(1) defense counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel’s deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different.
State v. McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995). If a reviewing court concludes that either prong has not been met, it need not address the other prong. State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (1990). If counsel’s conduct can be characterized as a reasonable trial strategy, a court will not find ineffective assistance of counsel. State v. Soonalole, 99 Wn. App. 207, 215-16, 992 P.2d 541
(2000).
A. Jury Instructions
Miller argues that he was prejudiced by defense counsel’s failure to object to the jury instructions defining assault. The trial court has `considerable discretion’ in the wording of jury instructions. State v. Rehak, 67 Wn. App. 157, 165, 834 P.2d 651 (1992). ‘[I]nstructions are sufficient if, when considered as a whole, they are readily understood, are not misleading to the ordinary mind, and properly inform the trier of fact of the applicable law.’ Rehak, 67 Wn. App. at 165.
Miller contends that Instruction Number 8 misstated the applicable law for two reasons. First, he contends that the failure to define `offensive’ misled the jury into possibly thinking that it meant non-defensive. Even if the jury accepted this definition when rendering its verdict, no prejudice to Miller would have resulted. The jury’s confusion would only result in the State having to prove a higher level of aggression, i.e., non-defensive as opposed to annoying. Since the incorrect definition actually increased the amount that the State had to prove, Miller was not prejudiced by the failure to define offensive.
Second, Miller argues that the failure to instruct the jury that the offensive conduct had to be objectively offensive relieved the State of its burden to prove the elements of assault. Miller is wrong. The evidence does not inspire a debate on whether some individuals might have found an aggressive brawl offensive touching or not. Rather the kicking, full body contact, and striking, between Officer Henson and Miller is clearly objectively offensive.
Miller has failed to show that he was prejudiced by any confusion resulting from the jury instructions. Any confusion likely helped rather than hindered his defense. Miller has failed to establish ineffective assistance on this basis.
B. Offender Score Calculation
Miller’s judgment and sentence includes, in part, the following information regarding Miller’s criminal history:
Crime Sentencing Date Cause No. Location
BURG 2
(CTS I, II, III) 8/27/93 Adult 931023606 KING
Defense counsel did not argue, nor did the trial court consider, whether the three counts involved in this prior conviction involved the same criminal conduct as required under former RCW 9.94A.525(5)(a)(i). Miller, however, does not even allege that the burglary counts actually do constitute the same criminal conduct. Without such an allegation and corroborative evidence, he has failed to establish that he was prejudiced by defense counsel’s failure to object to his offender score. Miller has failed to establish ineffective assistance of counsel.
II. Admission of Evidence
Miller argues that the trial court erroneously permitted irrelevant and prejudicial testimony regarding Officer Henson’s injuries. This court reviews the trial court’s rulings on admissibility of evidence for an abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239
(1997). Under ER 401, evidence is relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ER 403.
Evidence of an injury sustained during an extended altercation is relevant in an assault prosecution. Miller argues, however, that the prosecution’s closing argument eliminated the relevance of the back injury. Miller contends that the prosecution argued that there were only three possible assaults in this case and that the wrestling that occurred, that allegedly resulted in Henson’s back injury, was not one of the possible assaults. Miller, however, misconstrues the prosecution’s argument. The prosecutor argued that `there were several different incidents [Henson] talked about and testified to that could be construed as an assault . . . .’ The testimony regarding the back injury was therefore relevant to corroborate one aspect of Henson’s testimony and to provide additional evidence that an assault occurred. The trial court did not abuse its discretion in admitting the testimony regarding the back injury.
Finding no error, we affirm Miller’s conviction.
AGID and BAKER, JJ., concur.