STATE v. WINTERS, 120 Wn. App. 1049 (2004)

No. 30040-1-II.The Court of Appeals of Washington, Division Two.
Filed: March 16, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of Kitsap County. Docket No. 02-1-01229-7. Judgment or order under review. Date filed: 02/21/2003. Judge signing: Hon. M Karlynn Haberly.

Counsel for Appellant(s), Michelle Bacon Adams, Attorney at Law, 623 Dwight St, Port Orchard, WA 98366-4619.

Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor’s Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.

QUINN-BRINTNALL, A.C.J.

A jury convicted Heather Shandrea Winters of second degree assault and attempted first degree robbery, both with deadly weapon enhancements, for an incident of road rage. Contending that the trial court’s refusal to give a third degree assault instruction was error and that there was insufficient evidence to support the convictions and the deadly weapon enhancements, Winters appeals. The evidence at trial did not support the proposed third degree assault instruction. There was sufficient evidence to support the jury’s verdicts and its finding that Winters used a box cutter as a deadly weapon. Thus, we affirm.

FACTS
On July 27, 2002, James Kellner, a 54-year-old retired welder, was driving his 2002 Honda Civic home from shopping in East Bremerton, Kitsap County, Washington. He was heading west on Riddell Road near Pine when he noticed a car backing out of a driveway onto Riddell. At first, the car stopped when the driver saw Kellner’s car approaching, but suddenly it backed onto the road, blocking both lanes. Kellner testified that he had to swerve left onto the shoulder to avoid “T-bon[ing]” the car. Report of Proceedings (RP) at 51. He avoided the car and continued on his way.[1]

The car that had just backed out followed Kellner down a hill to a four-way stop, where it “slammed [his car] in the back.”[2] RP at 52. The car then passed him, driving quickly through the intersection and nearly colliding with two other vehicles in the process. Kellner followed the car to get its license number. The car turned right near the Tracyton Tavern and stopped.[3] Kellner also stopped his car.

While Kellner was writing down the license number, two women jumped out of the car — one was the driver and the other was Winters, the passenger. Kellner got out of his car and he and the driver began a heated discussion. Winters joined the argument, telling Kellner, “Don’t talk to my friend like that” (RP at 128); Winters also informed him that she was going to “cut [his] fucking ass up.” RP at 56. At that point, Kellner noticed that Winters had in her hand a yellow box-cutter knife with a retractable blade; the blade was out. Winters stepped forward with her arm raised and swiped at Kellner. He turned sideways because, as Kellner testified, “I didn’t know if she was going to — if it was coming at my face or neck or what,” and he felt something brush against his arm.[4]
RP at 57. According to Kellner, Winters said, “Hell yeah I cut you.” RP at 57.

While Kellner backed up about four feet, Winters ran toward Kellner’s car, which was still running. She told him, “I am going to take your fucking car,” and opened the door and started to get in. RP at 58. The box cutter was in Winters’s right hand, the hand farthest from Kellner. Kellner grabbed her by the arm and pulled her out of the car. He testified that while he was aware that she still had the box cutter at that time, it was a “brand new car . . . I just didn’t want it being stolen.” RP at 78. While Kellner was taking the keys from the ignition, Winters ran around to the front of the car and carved two large V’s into the hood of the car with the box cutter. Kellner told Winters to get away from the car. Winters got into the other car as it drove away.[5]
Kellner drove to a pay phone at a nearby convenience store and called the police. They arrived about 20 minutes later and took pictures of his car. Kellner did not realize that Winters had cut him until the next day, when his arm began to hurt. He took his t-shirt out of the laundry and noticed there was a cut on the sleeve.[6]

Winters’s friend, Keith Winfield, testified that Winters told him she was involved with a road rage incident in which she had cut someone with a knife. He relayed the information to the police after he was arrested on unrelated charges. When the police contacted Winters, she did not deny being involved in the incident but told the police officer that she could not remember the incident. She testified that she did not tell the police anything because she was afraid she would get into trouble.

Winters was charged by first amended information[7] with second degree assault and attempted first degree robbery, both with deadly weapon enhancements. At trial, Winters requested that the jury be instructed on the third degree assault, but the State objected. After argument, the court refused to give the third degree assault instruction. The jury convicted Winters as charged, returning special verdicts finding that Winters was armed with a deadly weapon in commission of both crimes. She appeals her convictions and the enhancements.

ANALYSIS (1) Refusal to Give a Third Degree Assault Instruction
Winters first contends that the trial court erred in refusing to a give a jury instruction on third degree assault,[8] an inferior degree of second degree assault.

The standard of review depends on whether the trial court’s refusal to give a jury instruction was based on a matter of law or of fact. We review a trial court’s refusal to give instructions to a jury based on a factual dispute for an abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998) (citing State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 544, 947 P.2d 700 (1997)). On the other hand, we review a trial court’s refusal to give an instruction based upon a ruling of law de novo. Walker, 136 Wn.2d at 772.

A defendant is entitled to an instruction on an inferior degree offense[9] 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. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150
(2000); State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998); State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997). The first two factors are the legal component of the test, while the third factor is the factual component. See Fernandez-Medina, 141 Wn.2d at 455.

Because the State concedes that the legal component of the test is satisfied here, we limit our review to whether the factual component is satisfied. Our standard of review is, therefore, whether the trial court abused its discretion by refusing to instruct the jury on the crime of third degree assault.

The purpose of the factual test is to ensure that there is evidence to support the trial court giving the requested instruction. Fernandez-Medina, 141 Wn.2d at 455. While all jury instructions must be supported by sufficient evidence, the factual test here requires that there be a factual showing more particularized than that required for other jury instructions — specifically, the evidence must raise an inference that only the inferior degree offense was committed and not the greater offense charged. Fernandez-Medina, 141 Wn.2d at 455. It is not enough that the jury might simply disbelieve the State’s evidence. State v. Charles, 126 Wn.2d 353, 355, 894 P.2d 558 (1995) (citing State v. Speece, 115 Wn.2d 360, 363, 798 P.2d 294 (1990)). Moreover, where acceptance of the defendant’s theory of the case would require acquittal on both the charged offense and a lesser included offense, the evidence does not support an inference that only the lesser was committed. State v. Speece, 56 Wn. App. 412, 419, 783 P.2d 1108 (1989), aff’d, 115 Wn.2d 360
(1990).

A person commits second degree assault when he assaults another with a deadly weapon. RCW 9A.36.021(1)(c).[10] Assault, as in this case, may be “committed merely by putting another in apprehension of harm whether or not the actor actually intends to inflict or is incapable of inflicting that harm.” State v. Byrd, 125 Wn.2d 707, 712, 887 P.2d 396
(1995) (quoting State v. Frazier, 81 Wn.2d 628, 631, 503 P.2d 1073
(1972)). Here, a third degree assault conviction would have required proof of criminal negligence and resulting bodily harm. Intent is not an element of third degree assault. RCW 9A.36.031(1)(d).[11] Criminal negligence is defined as a person’s “[failure] to be aware of a substantial risk that a wrongful act may occur and his failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable [person] would exercise in the same situation.” RCW 9A.08.010(1)(d); State v. Coates, 107 Wn.2d 882, 892, 735 P.2d 64 (1987). The evidence here does not support only third degree assault. See Fernandez-Medina, 141 Wn.2d at 455. Indeed, none of the evidence at trial, including Winters’s own testimony that she intentionally swung at Kellner with her bare hand, supports a finding that the assault did not result in injury or was unintentional.[12]
Thus, the court properly refused to give the proposed instruction.

(2) Sufficiency of the Evidence
Winters also makes a variety of claims of insufficient evidence.

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 evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850
(1990). 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, review denied, 119 Wn.2d 1011 (1992).

(3) Deadly Weapon Enhancement
Winters contends that there was insufficient evidence for the jury to enter a special verdict that she was armed with a deadly weapon.

Under former RCW 9.94A.125 (1983),[13] where there has been a special allegation and evidence establishing that the accused was armed with a deadly weapon at the time of the commission of the crime, a jury must enter a special verdict. A knife is a “deadly weapon” as a matter of law if it has a blade longer than three inches. Former RCW 9.94A.125; State v. Zumwalt, 79 Wn. App. 124, 129, 901 P.2d 319 (1995). But when the crime was committed with a knife having a blade shorter than three inches, the State must prove that the knife had the capacity to cause the victim’s death and was used in a way that was likely to produce or could have easily and readily produced death to prove that it is a deadly weapon. Zumwalt, 79 Wn. App. at 129-30; State v. Cook, 69 Wn. App. 412, 417-18, 848 P.2d 1325 (1993).

Here, there was evidence showing that Winters swiped at Kellner with a box cutter with the blade extended. Kellner turned away to avoid a blow to the front of his body, instead taking the blow and injuring the outside of his upper arm. As Kellner testified, “If I hadn’t . . . backed up, I probably would have got it in either the face or neck, I wasn’t sure.” RP at 57. Taken in the light most favorable to the prosecution, there was evidence from which a reasonable jury could have found the box cutter used in this manner was a deadly weapon.

(4) Second Degree Assault
Winters next contends there was insufficient evidence to convict her of second degree assault. Winters makes a variety of arguments related to the degree of harm Kellner suffered.

But as the State points out, the jury was only instructed on one means of committing that crime: “A person commits the crime of Assault in the Second Degree when he or she intentionally assaults another with a deadly weapon.” Clerk’s Papers (CP) at 79.[14] As such, the only question was whether Winters assaulted Kellner with a deadly weapon. And as discussed above, there was sufficient evidence to find that she did so.

(5) Attempted First Degree Robbery
Finally, Winters contends that there was insufficient evidence of attempted first degree robbery because, first, there was insufficient evidence that Winters was armed with a deadly weapon and second, there was insufficient evidence that Winters used force or threat of force at the time she threatened to take the vehicle.

Robbery is defined as follows:

A person commits robbery when he unlawfully takes 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. Attempted first degree robbery requires that a person take a substantial step toward committing robbery while armed with a deadly weapon. See RCW 9A.28.020 and former RCW 9A.56.200(1)(a) (1975).[15]

As discussed above, there was sufficient evidence to find that Winters was armed with a deadly weapon. Moreover, taken in the light most favorable to the prosecution, the evidence established that Winters used both force and threatened immediate force in entering Kellner’s Honda Civic with a stated intention to take it. Winters swiped at Kellner with a box cutter and while he was backing off, she began to get into his still-running car still holding the box cutter and declaring that she was going to take his car. On these facts, there was sufficient evidence for a jury to convict Winters of attempted first degree robbery.

We affirm.

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.

SEINFELD, J. and ARMSTRONG, J., concur.