State v. Craig, No. 29633-1-II (Wash. App. 2/3/2004)

• Decision Date: 03 February 2004
• Docket Number: No. 29633-1-II,29633-1-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. JOSHUA OWEN CRAIG, Appellant.

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. JOSHUA OWEN CRAIG, Appellant.

No. 29633-1-II

Court of Appeals of Washington, Division Two.

Filed: February 3, 2004

Appeal from Superior Court of Clark County. Docket No: 02-1-01257-4. Judgment or order under review. Date filed: 10/30/2002.

Counsel for Appellant(s), Darcy Joan Scholts, Attorney at Law, 712 W Evergreen Blvd, Vancouver, WA 98660-3033.

Counsel for Respondent(s), Michael C. Kinnie, Clark County Prosecutors Office, 1200 Franklin, PO Box 5000, Vancouver, WA 98666-5000.

ARMSTRONG, J.

Joshua Owen Craig appeals his convictions for five counts of second degree assault, arguing that the trial court erred when it admitted one of his post-arrest statements and when it refused to give a lesser included offense instruction on unlawful display of a weapon. Holding that the trial should have instructed on unlawful display of a weapon, we reverse and remand for a new trial.

FACTS

During the late evening of June 25, 2002, Craig Marshall, Jen McLeod, Heidi Marshall, Mark Clemetson, Shaynel Porter, and Charlie Thatcher gathered at a Shell station across the street from Prairie High School in Clark County, Washington.

Fifteen or twenty minutes after this group arrived, Joshua Craig and Andre Izhevskiy pulled up in a white car. When Marshall and Porter began dancing to the loud music coming from Craig's car, the two groups got into a dispute. Both Craig and Izhevskiy had been drinking earlier that day and appeared intoxicated. While the exact details of the confrontation differ, it ended with Craig displaying a clip from an automatic rifle similar to an AK-47 to the group and stating `{d}o you know what this is,' and then handling the rifle itself while seated in the front passenger seat of his car. I Report of Proceedings (RP) at 50.

Marshall testified that after Craig and Izhevskiy jumped into the car in order to leave,¹ Craig started to raise the rifle and pointed it in the group's direction. McLeod testified that Craig reached behind the car's passenger seat, grabbed the rifle, and pointed it at her and Clemetson. Heidi Marshall testified that Craig `showed' the gun and that to the best of her memory, it remained inside the car. I RP at 104. Clemetson testified that as the car backed up, the rifle was out of the window aiming `directly towards {her} area.' I RP at 124. Porter testified that as Craig and Izhevskiy drove away, the rifle was pointed at the area, but not directly at her.

Officer Thomas Maxfield, a Clark County deputy sheriff responding to a 911 dispatch, apprehended Craig after a high-speed pursuit. Craig waived his Miranda² rights and consented to a search of his car. This search yielded an Orenko assault rifle and two ammunition clips. On the way to jail, Craig stated that, `This isn't worth going to jail for. If I had known I'd be going to jail, I would have killed them all.'³ II RP at 173. Craig's counsel did not object to this testimony at trial.

The State charged Craig with five counts of second degree assault. After a CrR 3.5 hearing, the court ruled that Craig's post-arrest statement was admissible.

ANALYSIS

I. Post-Arrest Statement

Craig argues that his post-arrest statement to Officer Maxfield was either irrelevant or, if relevant, that the statement's prejudicial effect substantially outweighed its probative value, or that the statement was inadmissible character evidence.

At the outset, we reject Craig's character evidence argument because his statement is not evidence of other `crimes, wrongs, or acts,' as contemplated by ER 404(b), nor is it a threat to a witness in the sense contemplated in State v. Trickler, 106 Wn. App. 727, 734-35, 25 P.3d 445 (2001). Craig's statement did not allude to any other crime, wrong, or act. Rather, it referred to the crimes he was charged with and was probative of his intent at the time of the confrontation.

Relevant evidence is evidence that has any tendency to make the existence of a fact of consequence to the determination of the action more or less probable. ER 401. Generally, relevant evidence is admissible. ER 402; State v. Eakins, 73 Wn. App. 271, 277-78, 869 P.2d 83 (1994). But a trial court may exclude relevant evidence if it determines that its probative value is substantially outweighed by the danger of unfair prejudice. ER 403. Unfair prejudice is that which is more likely to arouse an emotional response than a rational decision by the jury. State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000) (quoting State v. Gould, 58 Wn. App. 175, 183, 791 P.2d 569 (1990)).

We review a trial court's evaluation of relevance under ER 401 and its balancing of probative value against its prejudicial effect under ER 403 for an abuse of discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001) (quoting State v. Luvene, 127 Wn.2d 690, 706-07, 903 P.2d 960 (1995)). A trial court abuses its discretion when its decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)).

During the CrR 3.5 hearing, the court began its analysis by stating the ER 403 balancing test and ruled that the statement was relevant to whether Craig committed the assault. Because Craig sought an instruction on the lesser included offense of unlawful display of a weapon, the statement was also relevant as to the nature of Craig's actual intent when he used the weapon. Accordingly, the court correctly concluded that Craig's statement permitted the inference that he was actually referring to `an escalation of an assault that occurred.' I RP at 38. We conclude that the trial court did not abuse its discretion by determining that Craig's statement was relevant and that the prejudice inherent in this statement did not outweigh its probative value.

II. Lesser Included Offense Instruction

Craig assigns error to the trial court's refusal to give a lesser included offense instruction on unlawful display of a weapon.

To be entitled to an instruction on a lesser included offense, two conditions must be met: (1) each of the elements of the lesser offense must be a necessary element of the crime charged and (2) the evidence must support an inference that the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978) (citing State v. Bowen, 12 Wn. App. 604, 531 P.2d 837 (1975)); State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997).

The State does not dispute the first Workman prong. RCW 9.41.270(1) provides: `{i}t shall be unlawful for any person to carry, exhibit, display, or draw any firearm . . . in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.' And under RCW 9A.36.021(1)(c), a person is guilty of second degree assault if he `{a}ssaults another with a deadly weapon.' Here, the jury instructions defined `assault' as `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 (CP) at 82. See also State v. Baggett, 103 Wn. App. 564, 569, 13 P.3d 659 (2000) (all of the elements of the unlawful display statute are elements of second degree assault with a deadly weapon). Thus, each element of unlawful display of a deadly weapon is a necessary element of second...