No. 29458-3-IIThe Court of Appeals of Washington, Division Two.
Filed: October 7, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County Docket No: 02-1-00650-7 Judgment or order under review Date filed: 09/10/2002
Counsel for Appellant(s), Suzan L. Clark, Attorney at Law, 1101 Broadway St. Ste 250, Vancouver, WA 98660-3320.
Counsel for Respondent(s), Rachel Brooks Mitchell, Domestic Violence Prosecution Center, 210 E 13th St, P.O. Box 1995, Vancouver, WA 98666.
SEINFELD, J.
David Lee Pollock appeals his conviction of second degree assault, arguing that the evidence was insufficient to support the conviction and that the trial court erred in admitting evidence of his previous assaults against the victim.[1] We affirm.
Facts
In April 2002, Pollock and Kimberlee Zimmerly lived together in a van on the property of some acquaintances and on April 1, they consumed alcohol with Nick Lane. After Pollock and Lane left to run some errands, Zimmerly went to sleep in the van. When she awoke about an hour and a half later and was unsuccessful in reaching Pollock on his cell phone, she went to Lane’s nearby apartment and waited for Pollock.
When Pollock and Lane returned to the apartment, Zimmerly and Pollock argued, and Pollock grabbed Zimmerly’s arm when she attempted to leave. Zimmerly fell against the wall and to the floor, where Pollock threatened her with a knife. When Lane intervened, Zimmerly escaped and Pollock left. Zimmerly hid by a nearby creek and called her former boyfriend, Keith Madarash, to pick her up. A neighbor called 911.
The State tried Pollock on charges of second degree assault while armed with a deadly weapon, and, in the alternative, third degree assault while armed with a deadly weapon. Zimmerly testified for the State that she fell against the wall, but she admitted that she had given the police a written statement in which she described Pollock as shoving her into the wall. She also testified that when the two were on the ground, Pollock reached for his hip, where he kept his knife, and said that he would kill her; that she did not see the knife but was afraid he might actually use it; and that Pollock had assaulted her before when he was intoxicated. The trial court overruled a defense objection to the prior assault, ruling that it was admissible under ER 404(b).
Madarash testified that when he picked Zimmerly up, she was upset and said that Pollock had beaten her up and had tried to stab her with a knife.
The court admitted these statements as excited utterances under ER 803(a)(2).
Deputy Tom Young testified that he went to Lane’s apartment in response to the 911 call and talked to Zimmerly over her cell phone. She told Young that Pollock had beaten her up and that Lane had stopped him from stabbing her. The trial court also admitted these statements as excited utterances.
Young eventually found Pollock passed out at his brother’s house with a knife in his pants pocket. Young admitted on cross-examination that there was no direct evidence that Pollock had used that knife to threaten Zimmerly. When defense counsel asked Young about Pollock’s jail statements, the court sustained the State’s hearsay objection.
Lane testified that he witnessed the altercation between Pollock and Zimmerly and saw a knife in Pollock’s hand. He added that Pollock held the knife toward Zimmerly’s chest and said that he was going to `gut’ her. 2 Report of Proceedings (RP) at 148. Lane did not find the knife in his kitchen afterward.
Dr. Margaret Dean, a forensic psychiatrist, testified that she found no indication that on the night in question Pollock lacked the ability to form the intent needed to commit assault. She added that it was possible that the effects of voluntary intoxication might have diminished Pollock’s capacity to form the required intent.
Zimmerly testified for the defense also; she denied that Pollock had assaulted or threatened her. She acknowledged, however, the contradictory police statement in which she wrote that Pollock assaulted her with his hands and with a knife and threatened to kill her. She also acknowledged that the statement echoed what she had told Madarash directly after the incident. The trial court admitted the written statement.
The trial court instructed the jury that it could consider evidence of voluntary intoxication in determining whether Pollock acted with the intent needed to commit second degree assault. Although the State argued that the jury should consider third degree assault only if it could not convict Pollock of second degree assault, the jury found him guilty of both offenses.
On the State’s motion, the court dismissed the third degree assault conviction and imposed a standard range sentence on the second degree assault conviction. Pollock now appeals.
Analysis I.
Pollock argues initially that the State produced insufficient evidence to convict him of second degree assault.
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.
Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). 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 (1992).
The trial court instructed the jury that ‘[a] person commits the crime of assault in the second degree when he or she assaults another with a deadly weapon.’ Clerk’s Papers (CP) at 69. The court also gave the jury the following definition of assault:
An assault is an intentional touching or striking of another person, with unlawful force, 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.
An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
CP at 67.
Pollock asserts that the evidence was insufficient to show that he used a knife against Zimmerly with the intent to create an apprehension and fear of bodily injury or that the act created a reasonable apprehension and imminent fear of bodily injury in Zimmerly. But he overlooks much of the testimony admitted at trial.
Zimmerly testified that Pollock reached for his knife as the two fought, that he said he would kill her, and that she was scared that he might actually use the knife. In her written statement, she wrote that Pollock assaulted her with his hands and his knife, that he threatened to kill her, and that ‘[h]e pulled his knife out and was going to stab me when Nick pushed him off me.’ Exh. 4.
Further, Madarash testified that when he picked Zimmerly up, she was upset and said that Pollock had tried to stab her with a knife. Young testified that Zimmerly said that Lane had stopped Pollock from stabbing her. Lane testified that Pollock held a knife against Zimmerly’s chest and said that he was going to `gut’ her. 2 RP at 148. Young found a knife in Pollock’s pants pocket.
The above evidence is sufficient to show both that Pollock used a knife to cause Zimmerly apprehension and fear of bodily injury and that his actions did in fact cause Zimmerly apprehension and imminent fear of bodily injury. Thus, Pollock’s challenges to the sufficiency of the evidence fail.
II.
Pollock argues next that the trial court erred in admitting evidence of his prior assaults against Zimmerly.
Under ER 404, evidence of other crimes, wrongs, or acts is inadmissible to show action in conformity therewith on a particular occasion. ER 404(a), (b). Such evidence may be admissible for another purpose, however, `such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ ER 404(b). When admitting prior bad act evidence for another purpose, the trial court must identify that purpose, determine that the evidence is logically relevant to that purpose, and find that the danger of undue prejudice does not substantially outweigh the probative value of the evidence. State v. Powell, 126 Wn.2d 244, 258, 264, 893 P.2d 615 (1995).
During Zimmerly’s testimony as a witness for the State, she said that Pollock, during an alcoholic `blackout,’ had assaulted her once before. 1 RP at 43. The State then asked whether he had assaulted her on other occasions, and Zimmerly replied that ‘[t]here’s been a couple of times when we fought.’ 1 RP at 44. When the defense objected, the court held an evidentiary hearing concerning Pollock’s prior assaults against Zimmerly.
After Zimmerly described those assaults, the State argued that they were admissible to show that Pollock was able to form the intent to assault Zimmerly. Defense counsel acknowledged that he was attacking the element of intent with the defense of voluntary intoxication but argued that the prior assault evidence was too prejudicial to admit. The trial court disagreed, finding that the prejudicial value did not exceed the probative value because the issue of alcohol had been introduced and was going to be a `focal point’ for the defense. 1 RP at 56. The court added that it would not admit any further evidence of prior assaults.
We agree with the reasoning of Division Three in State v. Medrano, 80 Wn. App. 108, 906 P.2d 982 (1995). There, the defendant had argued that drug and alcohol use prevented him from forming the intent necessary to commit residential burglary. The Medrano court held that it was not error to admit the defendant’s prior convictions of crimes requiring intent because, under ER 404(b), that evidence was relevant to the issue of whether the defendant could form the requisite intent to commit the current residential burglary. 80 Wn. App. at 113.
Similarly, in State v. Anderson, 42 Wn. App. 659, 665, 713 P.2d 145
(1986), Division One sustained the admission of evidence that the defendant had twice before burglarized a liquor store. The defendant had testified that he was too intoxicated to form the intent necessary to burglarize the same store, so the prior conduct was relevant to show intent under ER 404(b). Given Pollock’s theory that he was too intoxicated to form the intent necessary to commit second degree assault, the trial court did not err in admitting evidence of his prior assaults against Zimmerly as proof of his intent. The trial court made the necessary considerations in admitting the evidence and we find no error in the trial court ruling. III.
Pollock raises three issues in a pro se `statement of additional grounds for review.’ RAP 10.10(a). He argues first that the trial court erred in excluding his hearsay statements to Deputy Young while admitting the hearsay statements of others. The latter statements were admitted as excited utterances under ER 803(a)(2), which is an exception to the rule that hearsay statements are not admissible.
Pollock does not contend that his statements to Young at the jail were excited utterances. Nor does he identify any other hearsay exception which might have rendered his statements admissible. The trial court did not abuse its discretion in excluding them. See State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157 (1996) (trial court has broad discretion regarding admission or exclusion of evidence).
Pollock also argues that the court prevented him from presenting a proper defense. But the record shows otherwise. The defense introduced ample evidence of Pollock’s intoxication on the night in question, the jury was instructed on the defense of voluntary intoxication, and defense counsel argued to the jury that Pollock’s intoxication caused his actions.
Finally, Pollock argues that there was no proof that the knife used in the assault was the knife found in his pocket. But evidence of the knife in Pollock’s pocket served as circumstantial evidence that he did in fact assault Zimmerly while armed with a deadly weapon. See Lubers, 81 Wn. App. at 619 (circumstantial evidence is as reliable as direct evidence). The trial court did not abuse its discretion in admitting the knife.
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.