No. 56221-5-I.The Court of Appeals of Washington, Division One.
May 8, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-10389-1, Michael Hayden, J., entered June 2, 2004.
Affirmed by unpublished per curiam opinion.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Aaron Pa Williams — Info only, P.O. Box 4772, 511 Third Ave, Seattle, WA 98104.
Jennifer M. Winkler, Nielson, Broman Koch, PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Heather M. Jensen, King County Courthouse, W554, 516 3rd Ave, Seattle, WA 98104-2385.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
PER CURIAM.
Aaron Williams was convicted of first degree robbery and appeals his conviction on three grounds. First, he argues that the State did not prove beyond a reasonable doubt that he intended to steal Anibal Valentin’s necklaces. Second, Williams argues that a police officer was improperly permitted to testify as to his guilt. Third, he asserts pro se that he received ineffective assistance of counsel. Because we conclude that the State submitted sufficient evidence of Williams’s intent to steal, that the officer did not opine as to Williams’s guilt, and that Williams’s attorney’s performance was not deficient, we affirm the conviction.
FACTS
Anibal Valentin walked with a friend to a convenience store in downtown Seattle and waited outside while his friend went inside. Williams approached Valentin, first asking for money and then asking if Valentin wanted to buy beer from him. Valentin answered no to both of these questions. Neither party denies that a fight ensued after these questions, but each person describes the fight differently. According to Valentin, he tried to walk away from Williams, but Williams followed him. Valentin told Williams to leave him alone, and Williams hit Valentin in the face and ripped two necklaces off of his neck. One necklace had a diamond on it, and the other had charms shaped like a ring and a cross on it. Williams hit Valentin in the face again, breaking one of his teeth. Valentin fought back, wrestling with Williams until the police arrived.
According to Williams, Valentin responded with an angry comment to Williams asking him for money or if he wanted to buy beer. When Williams tried to walk away, Valentin hit him in the nose, and Williams hit back in self-defense. Williams denied grabbing Valentin’s necklaces and speculated that they must have fallen off inadvertently during the fight.
Seattle Police Officers Daniel Amador and Rory Smith responded to the scene. As they arrived, Valentin and Williams stopped wrestling and Williams crossed the street, where the police stopped him. During their investigation, the ring and the cross necklace charms were found on the ground near the place where they had stopped Williams on the other side of the street from the fight. The chain that the charms had been on was also found on that side of the street. The other necklace and the diamond that had been on it were not recovered. No jewelry was found on Williams.
Williams was charged with first degree robbery, and the case proceeded to trial. Clifford White, who witnessed the fight, testified for the State. He said he saw Williams hit Valentin first, but did not see Williams grab Valentin’s necklaces. Officer Amador also testified for the State that the location of the wounds on Williams’s hands indicated he was the first aggressor.
[Prosecutor]: Did you make any observations of [Williams’s] hands or face?
[Amador]: Yes. His hands looked like they had offensive wounds. By that I mean the back of his hands were injured. He also had blood on his nose. I couldn’t tell if his nose was bleeding or if he touched his face. I couldn’t tell.
. . . .
[Amador]: Just wounds to the back [The Court]: Just a second.[Prosecutor]: You didn’t notice any cuts on Mr. Valentin’s hands?
[Amador]: I can’t say if he also had cuts to his hands or if the blood was pouring out of his mouth onto his hands. He had his hands on his face.
[Prosecutor]: You observed what you thought to be defensive wounds on the defendant’s hands?
[Defense counsel]: I object to the characterization of that. Foundation.
He previously said that and there was no objection. You’re going back in time and objecting to prior testimony?
[The Court]: Well, the back of his hand. [Prosecutor]: You have training as a police officer. [Amador]: Yes.[Defense counsel]: Yes. I mean, absolutely. I heard it the first time too. And we kind of brushed over it. But I think the continued reference to he’s not an expert in this.
[The Court]: Overruled. No foundation yet. I don’t know if I can yet say whether he can testify to it. I sustain the objection based on that.
[Prosecutor]: Officer, in your training are you taught to well, identify what a defensive wound is?
[Defense counsel]: Objection to the actual foundation. Not what it is to him.
[Amador]: That’s correct.[Prosecutor]: You also have experience on the street. Is that right? Nine years, in your case?
[Prosecutor]: The aggressor’s? [Amador]: Right.[Prosecutor]: In your training and experience do you come to learn you used the term defensive. Do you come to learn about things like that, a defensive wound?
[Amador]: Yes. Mostly after working on the street for awhile, after nine years, you usually find the victim’s wound to be on the inside of the hand, inside of the arms. Usually a suspect, the back of the hands.
. . . .
[Prosecutor]: Did you see any wounds on Mr. Valentin?[Amador]: On Valentin just the only wounds I could see for certain was his face. His hand were bloody, but I couldn’t tell you if they was bleeding or not.
[Prosecutor]: Did you see what you thought based on your experience to be defensive wounds on the defendant’s hands?
[Amador]: Yes, that’s why we talked to him first. In addition to that, everyone was pointing at him.
Report of Proceedings (May 10, 2004) at 74-78. Valentin also testified that Williams was the first aggressor. Valentin initially told police that he had pushed Williams away in response to Williams’s requests for money, but then at trial testified that his first statement was incorrect.
Williams was convicted of robbery, and he timely appeals the conviction.
ANALYSIS Intent to Steal
Williams argues that the State produced insufficient evidence of his intent to steal Valentin’s necklaces; therefore, his robbery conviction should be reversed.
Robbery is defined as the unlawful taking of personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. . . .
RCW 9A.56.190. Although this statute does not include an intent element, intent to steal is an essential element of robbery. State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991). Evidence of an element of a charge is sufficient if, when viewed in the light most favorable to the State, a rational trier of fact could have found guilt beyond a reasonable doubt. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105
(1995). All reasonable inferences from the evidence must be drawn in favor of the State and against the defendant. Gentry, 125 Wn.2d at 597.
Here, Valentin testified that Williams grabbed his necklaces during the fight. One of the necklaces and its charms were found across the street from the fight, near where Williams had gone after the fight. The reasonable inference from this evidence is that Williams intended to take Valentin’s jewelry, but dropped it once the police stopped him. Thus, when viewing the reasonable inference from the evidence drawn in favor of the State, a rational trier of fact could have found Williams guilty of the intent to steal element. We conclude there was sufficient evidence of Williams’s intent to steal.
Opinion testimony Williams also argues that Amador’s testimony about the wounds on Williams’s hands was erroneously admitted because Amador opined as to Williams’s guilt. Williams failed to object to this testimony at trial, but a claim of error may be raised for the first time on appeal if it is a `manifest error affecting a constitutional right.’ RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Neither lay nor expert witnesses are permitted to opine as to the guilt of the defendant. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12
(1987). But `testimony that is not a direct comment on the defendant’s guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.’ City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993).
Here, Amador did not opine as to whether Williams was guilty of robbery, but merely that he observed wounds on the outside of Williams’s hands and that he typically sees wounds on the outside of the hands of the person who was the aggressor in a fight.[1] The prosecutor laid a proper foundation for this testimony: Amador testified that in his nine years at the Seattle Police Department, he had observed a pattern of offensive wounds being located on the outside of the aggressor’s hands. Amador’s experience allowed him to form opinions about his observations of Williams and Valentin that helped the jury determine which version of the events was supported by the evidence. Amador shared his opinion not as to Williams’s guilt of committing robbery, but as to what could be inferred from the wounds on Williams’s hands. Therefore, we conclude Amador’s testimony was properly admitted.
Ineffective Assistance of Counsel
In a pro se statement of additional grounds for review, Williams asserts that he received ineffective assistance of counsel because his attorney failed to emphasize to the jury that Valentin’s initial report to the police stated that Valentin had hit Williams first, yet at trial Valentin stated that Williams had hit him first.
An ineffective assistance of counsel claim has two prongs (1) that counsel’s performance was deficient and (2) that counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). `Deficient performance is not shown by matters that go to trial strategy or tactics.’ State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). If either prong of the ineffective assistance claim is not satisfied, then the claim fails. Hendrickson, 129 Wn.2d at 78.
Here, Williams is alleging his attorney’s performance was deficient because counsel did not emphasize the inconsistency between Valentin’s initial statement to the police and his testimony at trial as to who was the first aggressor in the fight. But the points an attorney chooses to emphasize are a matter of trial strategy; therefore, Williams’s argument does not show that his counsel’s performance was deficient. Defense counsel did question Valentin about the inconsistencies between his testimony and his previous statement, and thus, the jury could have considered that evidence even without particular emphasis. Furthermore, the lack of emphasis on Valentin’s conflicting statements did not prejudice the defense because whether Williams was the first aggressor was actually irrelevant Williams was charged with robbery and he was contending that he was not guilty, not that he had robbed in self-defense. Thus, Williams’s claim fails both prongs of the Strickland test, and we conclude that Williams’s counsel’s decision not to emphasize Valentin’s initial statement to the police was not ineffective assistance.
For the foregoing reasons, we affirm.
COLEMAN, DWYER and SCHINDLER, JJ.