State v. Colon
| Decision Date | 16 November 2010 |
| Docket Number | 39246-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. EUGENIO COLON, III, Appellant. |
UNPUBLISHED OPINION
After a jury found Eugenio Anthony Colon, III guilty of second degree assault, unlawful imprisonment, and felony harassment, the trial court imposed an exceptional sentence. Colon appeals arguing that the evidence was insufficient to support his convictions and the aggravating factors supporting his exceptional sentence, that the jury was instructed improperly on one of those factors, that his sentence was excessive, and that his offender score was miscalculated because his crimes constituted the same criminal conduct. In a pro se statement of additional grounds, he contends that he received ineffective assistance of counsel.[1] We affirm Colon's convictions but remand for resentencing within the standard range.
Shortly after Rigoberto Zalaya met Colon and his girl friend, Brenda Brown, the three moved into a studio apartment. There was some difficulty in paying the first month's rent; Colon asked Zalaya for additional money.
Toward the end of the month, Zalaya was sleeping in the apartment when he awoke to find Colon holding a meat knife to his throat and demanding money. Joshua and Brian Clark, who lived in the same apartment building, were with Colon. The three started hitting Zalaya and told him that if he called the police, they would kill him. They put him against the wall and continued to hit him while Colon took Zalaya's wallet and money.
They then pushed Zalaya into the Clarks' apartment, claiming that he needed to give $400 to Colon. Once he was inside the Clarks' apartment, they put socks in his mouth and continued to hit him. After heating a butter knife with a lighter, one of the Clarks used the hot knife to burn Zalaya. Colon left the apartment during the attack but later returned.
After keeping Zalaya in their apartment for more than three hours the Clarks sent him back to his apartment. Zalaya left the following morning and called the police, who arrested Colon a few days later.
The State charged Colon with first degree kidnapping, first degree robbery, and second degree assault, all with deadly weapon enhancements. The State also charged Colon with second degree assault based on torture and felony harassment. The State gave notice that it would seek an exceptional sentence based on the aggravating factors of deliberate cruelty and invasion of privacy. Colon and the Clarks were initially codefendants, but their cases were severed pursuant to the State's motion. Following a suppression hearing, the trial court ruled that Colon's pre- and post-arrest statements to law enforcement were admissible.
At Colon's trial, Zalaya testified to the facts cited above. He added that Colon left the Clarks' apartment before the Clarks burned him but came back later. He said that when he tried to leave the Clarks' apartment, they would not let him and threatened to kill him, and he believed their threat. He also testified that after leaving the apartment he shared with Colon and Brown the following day, he did not return because he was afraid.
Officer Christopher Blanchard interviewed Zalaya shortly after the attack and observed burns on his arm, nose, ear, and forehead. He also saw a faint mark on Zalaya's abdomen. His photographs of those injuries were admitted as evidence.
Officer Blanchard also interviewed Colon, who initially denied any knowledge of an assault or burning. The officer then took a statement from Brown. When confronted with Brown's statement at a second interview, Colon admitted telling her that "his boys" had taken care of Zalaya and burned him. Colon also told Blanchard that Zalaya had failed to acknowledge him when he entered their apartment and was disrespectful. As a consequence, Colon walked Zalaya over to the Clarks' apartment and made him sit down. One of the Clarks then stuffed a sock into Zalaya's mouth and put a heated knife next to his ear. Colon initially said he never saw a knife touch Zalaya, but he later said that after Joshua Clark heated a butter knife with a lighter and held it up to Zalaya's ear, he saw Zalaya flinch. When shown the photographs of Zalaya's burns, Colon said one could have happened when Joshua Clark put the knife to Zalaya's ear. Colon added that he told Zalaya several times that he and the Clarks were just playing and joking. A search of Colon's apartment did not reveal any weapons.
Brown testified that Colon told her that his boys handled Zalaya because he was disrespectful and owed Brown and Colon money. She said Colon mentioned heating knives and burning Zalaya. Defense witness Annette Aughtry testified that Colon was in her apartment most of the night, except for a five-minute interval. Another witness testified that Zalaya told him that Colon was involved in the attack for 20 minutes and only hit Zalaya on the chest.
The jury acquitted Colon of kidnapping, robbery, and second degree assault with a deadly weapon. The jury convicted him of the lesser included offense of unlawful imprisonment second degree assault based on torture, and felony harassment. The jury also found that the crimes were committed with both aggravating factors that the State alleged.
At sentencing, Colon argued that his offenses constituted the same criminal conduct, but the trial court disagreed and counted them separately. The court imposed an exceptional sentence of 30 months. Colon appeals his convictions and sentence.
Sufficiency of the Evidence: accomplice liability
Colon argues initially that the evidence was insufficient to prove that he was an accomplice to the Clarks' second degree assault of Zalaya.
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 and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We 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).
The accomplice liability statute requires a mens rea of knowledge and an actus reus of soliciting, commanding, encouraging, or requesting the commission of the crime, or aiding or agreeing to aid in the planning of the crime. State v. Roberts, 142 Wn.2d 471, 502, 14 P.3d 713 (2000). The legislature intended to impose accomplice liability only on those having "'the purpose to promote or facilitate the particular conduct that forms the basis for the charge.'" Roberts, 142 Wn.2d at 510 (quoting Model Penal Code § 2.06 cmt. 6(b) (1985)). Accordingly, to be deemed an accomplice, an individual "must have acted with knowledge that his or her conduct would promote or facilitate the crime for which he or she is eventually charged, " rather than any and all offenses the principal may have committed. State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000); see also RCW 9A.08.020(3). Whether principal or accomplice, the defendant's liability is the same. State v. Carter, 154 Wn.2d 71, 78, 109 P.3d 823 (2005).
Colon argues that the evidence does not show that he commanded the Clarks during their assault of Zalaya. He contends that there is no evidence that he instigated or facilitated the assault and no evidence that he knew the Clarks would burn Zalaya. The State responds that the evidence shows that the Clarks assaulted Zalaya to address Colon's grievances. Zalaya testified that he awoke to Colon's demand for money, that Colon pushed him into the Clarks' apartment, and that Colon participated in the beating that ensued. Although Zalaya said Colon left before the burning began, he added that Colon returned to the Clarks' apartment before Zalaya was allowed to leave. Colon admitted that he escorted Zalaya to the Clarks' apartment for being disrespectful and that he saw Zalaya flinch when Joshua Clark held the heated knife to his ear. Instead of intervening, Colon left the apartment. Furthermore, Colon told Brown that "his boys" had taken care of the problem with Zalaya and that Zalaya had been burned with a heated knife. When viewed in the light most favorable to the State, this evidence is more than sufficient to show that Colon both instigated and promoted the second degree assault of Zalaya.
Colon next argues that any force and restraint used against Zalaya was merely incidental to the assault and cannot support a separate charge of unlawful imprisonment.
A person commits unlawful imprisonment if he knowingly restrains another. RCW 9A.40.040(1). To restrain someone is to restrict their movements without consent and without legal authority in a manner that interferes substantially with that person's liberty. RCW 9A.40.010(1). Restraint is without consent if it is accomplished by physical force or intimidation. RCW 9A.40.010(1)(a). A substantial interference is a real or material interference with liberty, as opposed to a petty annoyance, slight inconvenience, or imaginary conflict. State v. Robinson, 20 Wn.App. 882, 884 582 P.2d 580 (1978), aff'd, 92 Wn.2d 357, 597 P.2d 892 (1979).
Colon's argument is based largely on State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). In Green, the court found insufficient evidence to support a conviction of aggravated murder...
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