State Of Wash. v. Breitung, 38869-3-II.

Decision Date20 April 2010
Docket NumberNo. 38869-3-II.,38869-3-II.
Citation155 Wash.App. 606,230 P.3d 614
PartiesSTATE of Washington, Respondent,v.Robert Charles BREITUNG, Appellant.
CourtWashington Court of Appeals


Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Thomas Charles Roberts, Attorney at Law, Tacoma, WA, for Respondent.


¶ 1 Robert Charles Breitung appeals his conviction on two counts of second degree assault (counts I and II) and one count of second degree unlawful possession of a firearm (count III). At issue is whether defense counsel was ineffective for failing to propose instructions on fourth degree assault. Also at issue is whether the predicate offense court's failure to comply with former RCW 9.41.047(1) (2005)'s mandate-to inform Breitung that he was prohibited from possessing firearms-warrants reversal of his present conviction for unlawful possession of a firearm. We hold that the failure to propose a lesser included instruction on fourth degree assault under the circumstances of this case amounted to ineffective assistance that prejudiced Breitung, requiring reversal of his second degree assault convictions (counts I and II). We also hold that the predicate offense court's failure to provide statutorily required notice to Breitung that he had lost his right to possess firearms warrants vacation of his conviction for second degree unlawful possession of a firearm (count III) and dismissal of the charge with prejudice. We remand for further proceedings on the assault charges.


¶ 2 On July 19, 2007, Ossie Cook and Richard Stevenson test drove a truck they had modified for a client of the automobile mechanic shop where they both worked. While they were test driving the truck, Cook and Stevenson stopped at a local smoke shop in unincorporated Pierce County to purchase cigarettes. There, Cook saw a thin blonde woman enter a black sports car and leave.

¶ 3 As they were leaving the store, the men decided to turn onto Pipeline Road to complete the test drive. Pipeline Road is a mostly gravel road, which they used to test drive the vehicle's four-wheel drive suspension and brakes. Cook and Stevenson drove to the end of Pipeline Road where they performed skid stops, drove around barricades, and generally tested the truck's performance, making sure its equipment was working properly. Cook exited the truck and watched while Stevenson performed skid tests to see if the brakes functioned correctly. The men spent from 10 to 20 minutes testing the vehicle.

¶ 4 As they were leaving Pipeline Road, Breitung walked out into the middle of the road ahead of the truck. According to Cook and Stevenson, as they approached Breitung, he pulled a gun from behind his back. Breitung then went to the driver's side of the vehicle and pointed the gun at the driver's window. Cook later described the gun as a dark gray or silver gun with spiraled channeling in the barrel. He also said he believed the gun to be an automatic large caliber gun, “.44 or bigger.” Report of Proceedings (RP) at 303. Stevenson later described the gun to a sheriff's deputy and at trial as having a silver or gray slide with squared edges and a black body and resembled his handgun, a .40 caliber Smith & Wesson.

¶ 5 As he pointed the gun at Cook and Stevenson, Breitung told the men to stop following his girlfriend and said, [G]et the f[***] out of here or I'll kill you.” RP at 351. Cook then noticed the black car he had seen at the smoke shop parked nearby. After Breitung's threat, Stevenson and Cook drove a few blocks away and called the police, giving a detailed description of the gun that Breitung had pointed at them.

¶ 6 Pierce County Sheriff's Deputies Jeff Papen and Jake Greger were dispatched to the scene to investigate the complaint. Upon their arrival, the deputies noticed the black car and spoke to Breitung's girlfriend, who asked if they were there to talk to her about the guys who had been following her.

¶ 7 Breitung then approached the deputies. He admitted to the deputies and at trial that he had a confrontation with two people in a vehicle, but he claimed that he had pulled out and pointed a microscope lens 1 at the vehicle, not a gun. Breitung claimed that he pulled the microscope top from his pocket and pointed it at the vehicle so that the men would stop. He asserted that once the men came to a stop, he placed the microscope top back in his pocket, approached the vehicle, and said, ‘What's the problem, guys? You're scaring my girlfriend. Why did you follow her home?’ RP at 424. When the men did not respond, Breitung testified that he continued, saying ‘Why don't you guys split before there's a bigger problem, just go.’ 5 RP at 424. Breitung denied pointing a gun at Cook or Stevenson and denied threatening to kill them.

¶ 8 After telling his side of the story, Breitung went to the trailer and retrieved the microscope lens to show the deputies. The deputies asked Breitung whether he owned a gun and he admitted that he had a rifle and some handguns, including a handgun with a black body with a silver slide. As the deputies talked with Breitung, his girlfriend went into the trailer and retrieved a Taurus .45 caliber semiautomatic handgun, which matched the description that Cook and Stevenson had reported.

¶ 9 The State charged Breitung with two counts of second degree assault (counts I and II) and one count of second degree unlawful possession of a firearm (count III).2 Cook, Stevenson, Deputies Papen and Greger, and Breitung testified to events we described above.

¶ 10 During trial, the State proposed jury instructions that detailed the elements and definitions of the charges of second degree assault and second degree unlawful possession of a firearm. Defense counsel proposed no additional instructions. The trial court adopted the majority of the State's proposed instructions and incorporated some additional instructions regarding the second degree unlawful possession of a firearm charge.

¶ 11 The jury returned guilty verdicts on counts I, II, and III. The jury did not complete the special verdict forms that accompanied counts I and II, which asked if Breitung was armed with a firearm at the time of the assaults. Breitung appeals.

I. Ineffective Assistance of Counsel-Failure to Request Lesser Included Instruction

¶ 12 Breitung first argues that his trial counsel was ineffective for failing to offer an instruction on fourth degree assault. We agree.

¶ 13 To prevail on an ineffective assistance of counsel claim, Breitung must show that (1) defense counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987). Breitung must make both showings to prevail on his ineffective assistance claim. Thomas, 109 Wash.2d at 226, 743 P.2d 816. For the first prong, our scrutiny of counsel's performance is highly deferential and we employ a strong presumption of reasonableness. Thomas, 109 Wash.2d at 226, 743 P.2d 816. If defense counsel's conduct can be fairly characterized as legitimate trial strategy or tactics, it does not constitute deficient performance. State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996). Accordingly, defendant must show in the record the absence of legitimate strategic or tactical reasons supporting defense counsel's challenged conduct. In re Pers. Restraint of Hutchinson, 147 Wash.2d 197, 206, 53 P.3d 17 (2002). The second prong requires Breitung to show that there is a reasonable probability that the trial outcome would have differed absent counsel's deficient performance. Hendrickson, 129 Wash.2d at 78, 917 P.2d 563.

¶ 14 An instruction on an inferior degree offense is warranted where

(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 Wash.2d 448, 454, 6 P.3d 1150 (2000) (internal quotation marks omitted) (quoting State v. Peterson, 133 Wash.2d 885, 891, 948 P.2d 381 (1997)). Fourth degree assault requires proof that “under circumstances not amounting to first, second, or third degree, or custodial assault, [the defendant] assaults another.” RCW 9A.36.041(1). An instruction on fourth degree assault is proper when the evidence supports “an inference that the assault was committed only with a nondeadly weapon. State v. Winings, 126 Wash.App. 75, 87, 107 P.3d 141 (2005).

¶ 15 Breitung testified that, as he stood in the road with the truck coming toward him, he pulled the microscope lens out of his pocket and pointed it at the truck, told the occupants to stop, and the vehicle stopped. He then placed the microscope lens in his pocket and approached the driver's window where he talked with the truck's occupants. He testified that he did not point anything at the truck's occupants while standing at the driver's window, but he admitted he had pointed the lens at the truck “to stop the vehicle.” RP at 425. The jury was instructed that [a]n assault is an act 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.” Clerk's Papers at 24. Cook and Stevenson testified that they feared they were going to be shot. Breitung's testimony, if the jury believed it, established that an assault (of some sort) occurred.

¶ 16 The State does not argue that the evidence does not warrant an instruction on fourth degree assault; instead, it argues that defense counsel's decision to forgo the...

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