State v. Anderson

• Decision Date: 10 January 1994
• Docket Number: No. 30690-1-I,30690-1-I
• Citation: 864 P.2d 1001,72 Wn.App. 453
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kery Lee ANDERSON aka Mazuk Sev Lockesh, Appellant.

Page 453

72 Wn.App. 453

864 P.2d 1001

STATE of Washington, Respondent, v. Kery Lee ANDERSON aka Mazuk Sev Lockesh, Appellant.

No. 30690-1-I.

Court of Appeals of Washington Division 1.

Jan. 10, 1994.

Reconsideration Denied Feb. 9, 1994.

Elaine Winters, Washington Appellate Defender, Seattle, for appellant.

Norm Maleng, Pros. Atty., and Terri Luken, Deputy Pros. Atty., Seattle, for respondent.

SCHOLFIELD, Judge.

Kery Lee Anderson appeals his convictions on one count of first degree assault and one count of first degree escape. We affirm the convictions but remand for resentencing.

By information dated December 19, 1991, appellant Kery Lee Anderson was charged with one count of first degree assault in violation of RCW 9A.36.011(1)(a) (count 1), one count of first degree escape in violation of RCW 9A.76.110 (count 2), and one count of second degree assault in violation of RCW 9A.36.021(1)(a) (count 3). The charges stemmed from an incident in which Anderson attempted to escape from custody while being transported to Harborview Medical Center for medical treatment.

The case was tried to a jury on March 9-12, 1992. Count 3 was dismissed prior to jury selection. Anderson's motion to sever the two remaining counts was denied by the court. The evidence presented at trial was as follows:

On December 17, 1991, Anderson was being held in the King County Jail awaiting sentencing on convictions for first degree possession of stolen property and a violation of the Uniform Firearms Act. He was also subject to an institutional hold for a 1981 robbery conviction. On December 17 at between 6:30 and 7 a.m., Timothy Bergman, a corrections officer at the King County Jail, transported Anderson from the jail to Harborview Medical Center for a medical appointment. Prior to departing for the hospital, Bergman restrained Anderson with handcuffs and a belly chain, as well as leg shackles.

During the drive to Harborview, which lasted about 5 minutes, Bergman had no conversation with Anderson. On arrival at Harborview, Bergman got out of the car and began to let Anderson out of the back seat. Bergman saw nothing unusual in the back seat and did not inspect Anderson's restraints. Anderson got out of the car, and Bergman leaned over to close and lock the door. At that point, Anderson, who had apparently been able to free himself of his restraints during the ride, "slammed" Bergman and forced him into the car's doorjamb. Bergman then felt a pressure or pulling under his arm and realized Anderson was pulling on his gun, which was holstered and loaded. Anderson gave a couple of good jerks on Bergman's weapon before Bergman was able to jam his elbow back, strip Anderson's hand off the weapon, and get his own hand on the weapon.

As Bergman turned to face Anderson, Anderson renewed his effort to take the gun. Anderson, using both hands, was pulling on the gun and pulling Bergman's whole body forward. After wrestling for a few moments, Anderson pushed Bergman into the seat of the car and ended up on top of him. Anderson continued to grip Bergman's weapon and pull at him, and tried to strip Bergman's hand off the weapon. Realizing that Anderson had managed to free his hands from the restraints, Bergman began to shout for help, and also tried to roll over on his gun in order to "maintain" his weapon. Anderson used both hands in an effort to pull Bergman's weapon away, using such force that Bergman was ripped up off the seat. Bergman stated that a surge of fear went through him and that he feared for his life.

As the struggle continued, Bergman noticed that Anderson had a pair of handcuffs. While tugging on the gun with one hand, Anderson began hitting Bergman with the handcuffs, trying to clip them on him. After six to eight strikes, Anderson clipped Bergman's left wrist with the handcuffs. Anderson then bit Bergman's ear, and Bergman responded by biting Anderson's bicep. Bergman testified that he acted in desperation, in a last ditch effort to survive.

When Bergman bit him, Anderson let go of the gun. Bergman then pulled his gun out of his holster. Anderson immediately grabbed the barrel of the gun with both hands and shoved it up against Bergman's head. Bergman, who had his finger over the trigger guard, grabbed the gun and pushed it away and continued struggling with Anderson. After shoving the gun back up toward Anderson, Bergman fired a round, which shot up through the car windshield and grazed one of Anderson's fingers. Anderson continued to hold onto the gun until Bergman kicked him out of the car. Bergman then tried to fire his gun at Anderson, but the gun would not fire. Anderson ran across the street.

Bergman tried to fire at Anderson again as he fled, but his gun was jammed due to a "stovepipe malfunction". Anderson was able to elude Bergman, but was recaptured approximately 5 hours after his escape.

The jury found Anderson guilty of first degree assault as charged in count 1 and first degree escape as charged in count 2. Anderson received standard range sentences for each count, with the sentences to be served consecutively. This appeal followed.

SUFFICIENCY OF EVIDENCE

Anderson claims no reasonable juror could have found beyond a reasonable doubt that he intended to inflict great bodily harm on Bergman, as required for a conviction for first degree assault. The State responds that sufficient evidence was presented that Anderson intended to inflict great bodily harm.

In reviewing the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wash.2d 333, 338, 851 P.2d 654 (1993). When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. Joy, at 338-39, 851 P.2d 654.

The crime of assault in the first degree is defined as follows:

(1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:

(a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; ...

RCW 9A.36.011. The term "great bodily harm" is defined as "bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ". RCW 9A.04.110(4)(c).

To establish first degree assault, intent to inflict great bodily harm must be shown. State v. Ferreira, 69 Wash.App. 465, 850 P.2d 541 (1993). " 'Evidence of intent ... is to be gathered from all of the circumstances of the case, including not only the manner and act of inflicting the wound, but also the nature of the prior relationship and any previous threats.' " Ferreira, at 468, 850 P.2d 541 (quoting State v. Woo Won Choi, 55 Wash.App. 895, 906, 781 P.2d 505 (1989), review denied, 114 Wash.2d 1002, 788 P.2d 1077 (1990)).

In arguing that the evidence is insufficient to sustain his conviction, Anderson cites a series of cases decided under former versions of the first degree assault statute. See State v. Woo Won Choi, supra (construing former RCW 9A.36.010); State v. Odom, 83 Wash.2d 541, 520 P.2d 152, cert. denied, 419 U.S. 1013, 95 S.Ct. 333, 42 L.Ed.2d 287 (1974); State v. Stationak, 73 Wash.2d 647, 440 P.2d 457 (1968) (construing former RCW 9.11.010); State v. Shelton, 71 Wash.2d 838, 431 P.2d 201 (1967); State v. Mitchell, 65 Wash.2d 373, 397 P.2d 417 (1964).

Predecessors to the current first degree assault statute required proof of intent to kill, see former RCW 9A.36.010 and RCW 9.11.010, but the present version of the statute, effective July 1, 1988, requires only an intent to inflict great bodily harm. See RCW 9A.36.011(1). Given the different intent requirements between the former and current statutes, we do not find the decisions cited by Anderson persuasive on the issue of sufficiency of the evidence here.

This case involved a violent altercation initiated by Anderson, a jail inmate, against Bergman, a guard transporting him. The attack and attempted escape were obviously planned in advance by Anderson. Anderson secretly freed himself from his restraints while being transported in the police car and "slammed" Bergman into the doorjamb of the car when the opportunity arose. Anderson immediately began a vigorous and prolonged attempt to take Bergman's weapon by force, during which he bit Bergman and tried to restrain him with his own handcuffs. When Bergman drew his gun in the course of the struggle, Anderson used both hands to push the weapon toward Bergman's head. The struggle ended only after Bergman fired his weapon and kicked Anderson out of the car.

Considering all the circumstances of this case, we believe a jury could conclude beyond a reasonable doubt that Anderson intended to inflict great bodily harm on Bergman. Had the jury found the evidence lacking on the intent issue, it could have convicted Anderson of the lesser included offense of second degree assault. There was sufficient evidence of Anderson's guilt of first degree assault.

ADMISSION OF THREE PRIOR FELONIES

Anderson claims the trial court's admission of his three prior felony convictions to prove that he was being detained pursuant to a felony conviction at the time of his escape was prejudicial error. The State responds that the court acted within its discretion in allowing the prior felony convictions because an element of first degree escape is that the defendant was detained pursuant to a felony conviction.

Among Anderson's prior felony offenses were a 1981 first degree robbery conviction, a violation of the Uniform Firearms Act (VUFA) (RCW 9.41.040(1)), and possession of stolen property. The latter two offenses occurred in 1991...