In re Arntsen

• Decision Date: 03 January 2023
• Docket Number: 83075-9-I
• Citation: 522 P.3d 135
• Parties: In the MATTER OF the Personal Restraint of Ricky Marvin ARNTSEN, Petitioner.
• Court: Washington Court of Appeals

522 P.3d 135

In the MATTER OF the Personal Restraint of Ricky Marvin ARNTSEN, Petitioner.

No. 83075-9-I

Court of Appeals of Washington, Division 1.

Filed January 3, 2023

PLLC Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98121, Mary Swift, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Petitioner.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent(s).

PUBLISHED OPINION

Coburn, J.

¶1Ricky Arntsen, through a personal restraint petition (PRP), once again challenges his conviction for assault in the second degree. Unlike unlawful display of a weapon, assault in the second degree required the jury to find both that Arntsen had the specific intent to create reasonable fear and apprehension of bodily injury and in fact did create a reasonable apprehension and imminent fear of bodily injury. While intent may be inferred from pointing a firearm at another, that did not occur here. We are left to determine whether the evidence sufficiently established that Arntsen did more than merely display a rifle, allowing a jury to infer, without speculating, that he had the requisite intent. We hold that it did not. We also hold that the evidence did not establish that Arntsen did in fact create an imminent fear of bodily injury. We grant the petition, reverse the conviction, and remand to the trial court to vacate.

FACTS

¶2Kim Koenig was commuting to work one morning in December 2014. Koenig drove northbound on Auburn Way, a road with two lanes for traffic and one center turning lane. As Koenig approached an intersection, she came upon an older model gray Jaguar, driven by Arntsen,¹ which was in the lane closest to the turning lane. Koenig noticed the Jaguar had its blinker on to move into the right lane and was backing up traffic. Koenig "made a maneuver" in front of the Jaguar. Koenig then noticed that Arntsen, while still behind her, started driving aggressively with her like she had made him very mad. Koenig testified that it was hard to describe, but said Arntsen started to "attack" Koenig's vehicle with his own by driving up to her and stopping just short of hitting her car. He then moved into the lane next to Koenig, "acting like he wanted to hit me from the other side." Koenig testified that Arntsen had his window rolled down and was yelling and gesturing, pointing to the side of the road, like he wanted Koenig to get off the road. Koenig could not hear what Arntsen was saying and tried to avoid looking at him during this exchange in an attempt to avoid aggravating him further. Arntsen continued "flailing" his arms and yelling at Koenig as they proceeded down the road for "a few minutes or seconds."

¶3Arntsen then sped up, positioned his car in front of Koenig's, "threw his car into a turn," slammed his brakes and came to a stop diagonally, blocking the lanes of traffic. Koenig stopped on the road, putting "as much distance" as she could between herself and Arntsen's vehicle.²

¶4Arntsen then opened his driver's side door and exited. Arntsen had covered his face with a kerchief like an "old bank robber movie" and was holding a rifle.³ Arntsen walked toward Koenig's car carrying the rifle, but never pointed it at her. Koenig immediately called 911 and averted her eyes and focused on talking to the 911 operator. Based on just peripheral vision and her feelings, she "felt like he had come up on the driver's side" very close to her vehicle before looking up and seeing him walk back towards his car.

¶5Witness Robert Morrill, who was trying to drive around the backed-up traffic on the right, saw Arntsen's actions from the time he stepped out of his vehicle until he left the scene. Arntsen had the gun held straight up in one hand as he, according to Koenig, walked up to the driver's side door of the passenger car.⁴ Arntsen then moved the rifle from its upward position in one hand down to his waist where he held it with two hands. Morrill saw the driver of the jaguar run up to the driver's side of the passenger car that was blocked by the jaguar, turn around, run back to his car, jump in and "t[ake] off." It happened very quickly and Morrill could not hear what, if anything was said. Morrill never saw the driver of the vehicle point the rifle at anyone in the car.

¶6Arntsen was subsequently charged by amended information with 17 counts based on this event and unrelated events that occurred before and after this road rage incident. The events before and after this incident are not relevant to this appeal. Two counts, naming Kim Weyer Koenig as the victim, were based on the road rage incident. Count 2 alleged assault in the second degree with a deadly weapon, the rifle, under RCW 9A.36.021(1)(c). Count 3 alleged felony harassment. Arntsen represented himself at trial.

¶7Koenig testified at trial that when Arntsen first exited his vehicle with the rifle, Koenig's initial thought was that she was going to get shot because she saw Arntsen had a rifle and Koenig thought "Why in the world would you have a gun unless you were going to use it?" She further explained that though she believed Arntsen meant to do her harm, "What kind of harm he meant to do, I don't know. Whether or not I was going to be shot, whether or not he was going to assault me, steal my vehicle, I had no idea." When Arntsen approached and got close to Koenig's car, she explained that "he was not looking to shoot me, he did the [sic] not raise the gun like, you know, he wanted to shoot me. He had something else in mind. I have no idea what it was. I still don't know what it was."

¶8In addition to Morrill testifying that he observed Arntsen run up to the passenger car, the State asked Morrill if he could "describe the demeanor or the appearance of the individual that got out of the car with the firearm?" Morrill said, "Aggressive. Scary Aggressive."

¶9The jury was instructed on both assault in the second degree with a deadly weapon and the lesser included offense of unlawful display of a weapon. The jury found Arntsen not guilty of felony harassment⁵ and guilty on all other counts, including assault in the second degree with a deadly weapon. In his previous direct appeal, Arntsen challenged several convictions including the conviction for assault in the second degree, contending, among other issues, that the State did not prove that what he held was an actual rifle. See Arntsen, No. 76912-0-I, slip op. at 15. In that appeal, this court reversed one conviction for malicious mischief, but otherwise affirmed. Id.

¶10Following that decision, Arntsen submitted a pro se motion to vacate or amend judgment and sentence under CR 7.8 to the trial court. See generally PRP. Arntsen claimed that the evidence was insufficient to support his conviction for assault in the second degree because Arntsen only displayed the rifle and never pointed it at another person. He also claimed the law of the case required the State to prove the victim's middle name was "Weyer." Lastly, he claimed that prosecuting him violated his constitutional right to equal protection. The trial court transferred his motion to this court for consideration as a PRP.

DISCUSSION

¶11A "petitioner in a personal restraint petition is prohibited from renewing an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation of that issue." In re Yates, 177 Wash.2d 1, 17, 296 P.3d 872 (2013) (quoting In re Pers. Restraint of Davis, 152 Wash.2d 647, 671, 101 P.3d 1 (2004) ). "A petitioner may not avoid this requirement ‘merely by supporting a previous ground for relief with different factual allegations or with different legal arguments.’ " Id. at 17, 296 P.3d 872 (quoting In re Pers. Restraint of Davis, 152 Wash.2d at 671, 101 P.3d 1 ). The interests of justice are served by reconsidering a ground for relief if there has been " ‘an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application.’ " Id. (internal quotation marks omitted) (quoting In re Pers. Restraint of Stenson, 142 Wash.2d 710, 720, 16 P.3d 1 (2001) ).

¶12While there was no intervening change in the law and Arntsen does not contend there was another justification for not raising the issue in his direct appeal, the actual innocence doctrine applies to this case. Ordinarily, the person bringing a habeas petition must show cause and prejudice in order to avoid state procedural bars to collateral attack. In re Carter, 172 Wash.2d 917, 923, 263 P.3d 1241 (2011) (citing Dretke v. Haley, 541 U.S. 386, 392, 124 S. Ct. 1847, 158 L. Ed. 2d 659 (2004) ). Where a petitioner is alleging actual innocence to avoid a procedural bar that prevents judicial review of an alleged constitutional error, the petitioner's claim of actual innocence is a "gateway" to review by an appellate court. Id. at 924, 263 P.3d 1241 (citing Schlup v. Delo, 513 U.S. 298, 315, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995).

¶13The actual innocence doctrine applies when a defendant can show by clear and convincing evidence that an alleged constitutional error resulted in the conviction of an actual innocent defendant and a "fundamental miscarriage of justice would otherwise result if the collateral attack is dismissed." Id. at 923, 263 P.3d 1241. A defendant asserting an actual innocence claim must, at a minimum, make a threshold showing of innocence. In re Pers. Restraint of Weber, 175 Wash.2d 247, 260, 262-63, 284 P.3d 734 (2012).

¶14A defendant's assertion of insufficient evidence asserts a constitutional error.

In re Crow, 187 Wash. App. 414, 421, 349 P.3d 902 (2015). The State does not argue that Arntsen is procedurally barred from again raising a sufficiency claim. Here, because the jury convicted Arntsen of...