No. 21775-2-IIIThe Court of Appeals of Washington, Division Three. Panel Two.
Filed: July 15, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Chelan County. Docket No: 02-1-00388-6. Judgment or order under review. Date filed: 01/29/2003. Judge signing: Hon. John E. Bridges.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Gary Alan Riesen, Attorney at Law, PO Box 2596, Wenatchee, WA 98807-2596.
SCHULTHEIS, J.
Hugh Putnam was convicted of two counts of first degree assault with a firearm and two counts of second degree assault with a firearm. On appeal, he contends the trial court erred in instructing the jury on second degree assault as a lesser included offense of first degree assault. He also challenges the sufficiency of the evidence to support his convictions and to support an instruction on three definitions of assault. Pro se, Mr. Putnam argues he had ineffective assistance of counsel at trial. We find no error in the instructions or the verdict. Because we also conclude Mr. Putnam had effective assistance of counsel, we affirm.
Facts
Around midnight in late July 2002, Esmeralda Alvarado met her boyfriend, John Gann, at a picnic shelter in a Wenatchee park. She noticed that two boys were riding a bicycle over pieces of plywood southeast of the picnic shelter. After a short while, Ms. Alvarado saw a man wearing only white underpants walk up to a truck parked beside the park south of the picnic shelter. He banged on the truck and reached inside, pulling out what appeared to be a handgun. Pointing the gun toward the boys on the bicycle, the man walked into the park and yelled, “I don’t know what you kids are doing but you need to stop or I’m going to kill you.” Report of Proceedings (RP) at 58. He then shot twice.
Ms. Alvarado saw the boys run away from the man, toward the northeast corner of the park. She and Mr. Gann got up and ran toward the northwest corner of the park. When she looked back, she saw the man looking in her direction. He said, “You, stop, stop.” RP at 62. She then heard one or two more shots. Mr. Gann reported that as he was running away, he heard a thudding sound like a bullet hitting wood `really close.’ RP at 99. Although Ms. Alvarado, Mr. Gann, and the two boys ran out of the park in different directions, they eventually ended up on the same lawn about a block away, where they encountered neighbors who had heard the shots and had called the police. Responding officers who heard the description of the assailant thought he might be Mr. Putnam and decided to question him.
Mr. Putnam lived in a trailer parked in the driveway of his aunt’s house across the street from the park. When contacted, he denied involvement in the shooting, but Ms. Alvarado and Mr. Gann identified him as the shooter. Later, officers executed a search warrant for his trailer and found a loaded semiautomatic handgun under his bed pillow. Two handgun shell casings were found in the park near where Mr. Putnam was observed shooting, and a flattened bullet was found in the dirt near bullet impact marks on a wooden stake and a cement outbuilding. The outbuilding was near the area where the boys had been riding the bicycle. Tests indicated the bullet had been fired by Mr. Putnam’s handgun.
Mr. Putnam was charged by second amended information with two counts of attempted murder in the first degree (the two boys) while armed with a firearm (RCW 9A.28.020(1); RCW 9A.32.030(1)(a); RCW 9.94A.510, .602) and four counts of first degree assault with a firearm (RCW 9A.36.011(1)(a); RCW 9.94A.510, .602). At trial, the court instructed the jury on second degree assault with a deadly weapon (RCW 9A.36.021(1)(c)) as a `lesser crime’ (Clerk’s Papers (CP) at 71) for each count of first degree assault. Mr. Putnam raised no objection to this or any other of the court’s instructions, although he did take exception to the court’s refusal to adopt his proposed instruction on the crime of aiming or discharging a weapon.
The jury found Mr. Putnam guilty of two counts of first degree assault with a firearm (the two boys) and two counts of second degree assault with a firearm (Ms. Alvarado and Mr. Gann). He was sentenced to 414 months, including the four consecutive firearm enhancements.
Instructions on Second Degree Assault
Mr. Putnam first contends the trial court erred in instructing the jury on second degree assault. He argues that second degree assault is not a lesser included offense of first degree assault. Mr. Putnam raised no objection to the second degree assault instructions at trial. Thus our threshold question is whether we will address the issue for the first time on appeal.
Generally this court will not address issues that were not raised at the trial level. RAP 2.5(a). One exception to this rule allows review of new issues related to `manifest error affecting a constitutional right.’ RAP 2.5(a)(3). A manifest error is one that has practical, identifiable consequences in the trial. State v. Stein, 144 Wn.2d 236, 240, 27 P.3d 184
(2001). For example, the failure to instruct on an element of the offense is a manifest error of constitutional magnitude. Id. at 241.
Mr. Putnam contends the second degree assault instructions are erroneous as a matter of law because second degree assault is not a lesser included offense of first degree assault. A court’s decision on lesser included or inferior degree offense instructions is not an issue of constitutional magnitude and therefore is not subject to review for the first time on appeal. State v. Lord, 117 Wn.2d 829, 880, 822 P.2d 177
(1991).
Evidence to Support Assault Instructions
Mr. Putnam next contends the court’s instruction on three definitions of assault was not supported by the evidence. He appears to argue that because there was insufficient evidence to support conviction under each definition, jury unanimity was not ensured. Although this issue was not raised at trial we may address it for the first time on appeal because jury unanimity is an issue of constitutional magnitude. State v. Gitchel, 41 Wn. App. 820, 822, 706 P.2d 1091 (1985).
Assault is not defined by statute. Consequently, Washington courts rely on the common law definitions of assault:
`(1) an attempt, with unlawful force, to inflict bodily injury upon another [attempted battery]; (2) an unlawful touching with criminal intent [actual battery]; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm [common law assault].’
State v. Bland, 71 Wn. App. 345, 353, 860 P.2d 1046 (1993) (quoting State v. Walden, 67 Wn. App. 891, 893-94, 841 P.2d 81 (1992)), quoted in State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994). The law requires a jury to unanimously decide whether the defendant committed the crime charged. Bland, 71 Wn. App. at 353. However, unanimity is not required in the jury’s determination of which of several alternate means was used to commit the crime, as long as substantial evidence supports each means. Id. If one of the alternatives is not supported by the evidence, the verdict cannot stand unless the appellate court can determine that the verdict must have been founded upon one of the means that is supported by substantial evidence. Id. at 354.
The trial court in this case instructed the jury on all three alternative definitions of assault:
An assault is an intentional shooting of another person that is harmful or offensive.
An assault is also an act, with unlawful force, done with the intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.
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 act did not actually intend to inflict bodily injury.
CP at 64 (Instruction 16). Mr. Putnam is correct that the evidence does not support the first definition of assault, which requires that a victim is actually shot. However, it is clear from the second amended information, the trial testimony, and the other instructions that the verdicts on each count were based on Mr. Putnam’s use of a firearm to either attempt bodily harm on the victims or to create apprehension and fear of bodily injury. The evidence, viewed in the light most favorable to the State, indicates that Mr. Putnam threatened the boys, shot in their direction at least once, told Ms. Alvarado and Mr. Gann to stop, and fired in their direction at least once. Because it is clear the jury did not base its verdicts on the first alternative means of committing assault, and because the remaining two means are supported by substantial evidence, jury unanimity is assured. Bland, 71 Wn. App. at 354.
Evidence to Support Convictions
Mr. Putnam additionally contends the evidence is insufficient to show that he had the requisite specific intent for either the second degree assault or the first degree assault convictions. We will find evidence sufficient to support a conviction if it permits any rational trier of fact to find the essential elements of a crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We accept the State’s evidence as true, and draw all reasonable inferences in the State’s favor. Id.
Specific intent `can be inferred as a logical probability from all the facts and circumstances’ of a case. Wilson, 125 Wn.2d at 217. For second degree assault, the specific intent is to create apprehension of bodily harm or to cause bodily harm. State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). Mr. Putnam contends the evidence shows only that he shot toward the boys, not toward Ms. Alvarado and Mr. Gann. Thus, he asserts, nothing shows that he intended to create a reasonable apprehension of bodily harm in Ms. Alvarado or Mr. Gann.
On the contrary, the evidence shows that Ms. Alvarado and Mr. Gann saw Mr. Putnam looking at them, saw him move toward them, heard him tell them to stop, and Mr. Gann heard a sound like a bullet striking a tree very near him. This evidence is more than sufficient to support a logical probability that Mr. Putnam intended to foster Ms. Alvarado’s and Mr. Gann’s apprehension of bodily harm.
The evidence also supports the specific intent of first degree assault: to `inflict great bodily harm.’ RCW 9A.36.011(1). Mr. Putnam contends the evidence does not show that the boys had a reasonable apprehension and imminent fear of bodily harm, one of the three general alternative definitions of assault. He minimizes the testimony of the boy victims. The boys testified that they were `[p]retty much’ scared. RP at 124. One explained that `when somebody threatens to kill you, you kind of get a little bit afraid.’ RP at 138. The other stated that at first he and his friend laughed, but only until they heard Mr. Putnam state he would kill them. Both took off running after Mr. Putnam threatened them, even before the shots were fired. Their testimony supports both alternative definitions of assault (act done with intent to inflict bodily injury, or act done with intent to create apprehension and fear of bodily injury and actually creating such apprehension) as well as the specific intent to inflict great bodily harm. The fact that a bullet was found near where the boys had been playing further supports the specific intent element of first degree assault.
Assistance of Counsel
Pro se, Mr. Putnam contends he had ineffective assistance of counsel because trial counsel did not object to the second degree assault instructions. Washington courts entertain a strong presumption that counsel’s performance was reasonable. State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992). To overcome this presumption, the defendant must show that, but for counsel’s deficient performance, there is a reasonable probability the outcome of the trial would have been different.
Id. at 594-95.
Trial counsel’s failure to object to an erroneous jury instruction may demonstrate ineffective assistance of counsel if the defendant can show that the erroneous instruction actually prejudiced him or her. State v. Wilson, 117 Wn. App. 1, 17, 75 P.3d 573, review denied, 150 Wn.2d 1016
(2003). In this case, Mr. Putnam’s allegation of ineffective assistance of counsel fails because the second degree assault instruction was not erroneous; it was appropriate as an inferior degree — not a lesser included offense — of first degree assault.
`[U]nder RCW 10.61.003, a defendant can be found guilty of a crime that is an inferior degree of the crime charged.’ State v. Fernandez-Medina, 141 Wn.2d 448, 453, 6 P.3d 1150 (2000). An instruction on an inferior degree offense is appropriate when `(1) the statutes for both the charged offense and the proposed inferior degree offense proscribe but one offense; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense.’ State v. Gilmer, 96 Wn. App. 875, 888-89, 981 P.2d 902
(1999). First degree assault and second degree assault proscribe one offense: assault. State v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789
(1979). Second degree assault is an inferior degree of first degree assault. Consequently, second degree assault meets the first two legal tests for an instruction on an inferior degree offense.
The third (factual) test asks whether the evidence raises an inference that only the inferior degree offense was committed. Fernandez-Medina, 141 Wn.2d at 455. We review the evidence in the light most favorable to the party that requested the instruction — evidently the State here. Id. at 455-56. Relevant to the information filed against Mr. Putnam, a person is guilty of first degree assault `if he or she, with intent to inflict great bodily harm . . . [a]ssaults another with a firearm or any deadly weapon.’ RCW 9A.36.011(1)(a). Mr. Putnam was charged alternatively with second degree assault, defined in part as assault with a deadly weapon `under circumstances not amounting to assault in the first degree.’ RCW 9A.36.021(1)(c). Accordingly, if the evidence supports an inference that Mr. Putnam assaulted his victims with a deadly weapon, but without intent to inflict great bodily harm, then the evidence is sufficient to support a conviction for second degree assault only.
The fact that the shots missed the victims supports an inference that Mr. Putnam did not intend to inflict great bodily harm. Thus the second degree assault instructions meet the legal and factual tests for an inferior degree offense. Even if trial counsel had objected to the second degree assault instructions, there is little likelihood the court would have removed the instructions. Because Mr. Putnam cannot show prejudice, he fails to establish ineffective assistance of counsel. Howland, 66 Wn. App. at 594-95.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and BROWN, JJ., concur.