State v. Eakins

• Decision Date: 08 March 1994
• Docket Number: No. 14619-3-II,14619-3-II
• Citation: 73 Wn.App. 271,869 P.2d 83
• Parties: The STATE of Washington, Respondent, v. Ted EAKINS, Appellant.
• Court: Washington Court of Appeals

Page 271

73 Wn.App. 271

869 P.2d 83

The STATE of Washington, Respondent, v. Ted EAKINS, Appellant.

No. 14619-3-II.

Court of Appeals of Washington,

Division 2.

March 8, 1994.

Brian T. Moran, Kitsap Co. Pros. Atty's Office, Port Orchard, for respondent

Michael Allan Dunn, Law Offices of Michael A. Dunn, Port Orchard, for appellant.

JOHN A. PETRICH, Judge Pro Tem. ¹

In May 1980, Ted Eakins confronted Shelly Lindahl, his former girlfriend, at her place of employment. He Eakins appeals, contending he was charged in violation of his right to equal protection because the charged offense, on each count, bears a more severe penalty than what he claims is the concurrent offense of exhibiting a firearm, RCW 9.41.270. ³ He also contends the trial court erred in excluding proffered evidence of his character as a peaceful and law-abiding citizen. ⁴

                pulled out a revolver from his coat and, in a threatening manner, pointed it at her and a fellow employee, who had come to her assistance.   He was charged and convicted on jury verdicts of two counts of second degree assault in violation of RCW 9A.36.021(1)(c). 2  Special verdicts imposing the deadly weapon enhancement were entered on both counts
                

We conclude that Eakins was charged properly, but that the trial court erred in excluding evidence of Eakins's character as a peaceful and law-abiding citizen. Thus, we reverse.

EQUAL PROTECTION CHALLENGES ⁵

Eakins asserts that the assault statute with which he was charged, RCW 9A.36.021(1)(c), and RCW 9.41.270 In State v. Hupe, 50 Wash.App. 277, 748 P.2d 263 (1988), review denied, 110 Wash.2d 1019 (1988), the court faced a challenge similar to ours. The defendant was charged with and convicted of second degree assault, not of exhibiting a firearm. The court found no equal protection violation, reasoning that the two offenses had different elements, requiring the State to prove a higher degree of culpability to prove the assault charge, namely, that the assault be made knowingly. The exhibiting a firearm statute simply proscribed the display of a firearm that manifested "an intent to intimidate another or that warrants alarm". RCW 9.41.270(1). Thus, the court reasoned that one could commit the offense of unlawful display without committing second degree assault.

                which proscribes exhibiting a firearm, violate his right to equal protection of the law.   He relies on the often repeated rule that statutes imposing different punishments for the same act, violate the equal protection clause of the Fourteenth Amendment and article 1, section 12 of the Washington State Constitution when they purport to authorize the State to charge one person with a felony and another with a misdemeanor for the same act committed under the same circumstances.  Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956).   See also State v. Leech, 114 Wash.2d 700, 711, 790 P.2d 160 (1990);  State v. Dictado, 102 Wash.2d 277, 687 P.2d 172 (1984).
                

Eakins contends that the analysis in Hupe no longer applies because the Legislature excised the knowledge element of second degree assault from the statute. ⁶

Nonetheless, It is firmly established that the identity of elements in two criminal statutes with disparate penalties does not violate the equal protection clause of the Fourteenth Amendment.

the identity of elements alone does not demonstrate an equal protection violation. ⁷

[A] decision to proceed under [a statute with a greater penalty] does not empower the Government to predetermine ultimate criminal sanctions. Rather, it merely enables the sentencing judge to impose a longer prison sentence than [a statute with a lesser penalty] would permit.... More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause.

United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979). See Kennewick v. Fountain, 116 Wash.2d 189, 802 P.2d 1371 (1991) (overruling State v. Zornes, 78 Wash.2d 9, 475 P.2d 109 (1970)), which was characterized as holding that statutes defining the same offense for the same conduct, but prescribing different punishments, violate an individual's right to equal protection).

Eakins submitted no authority suggesting that the analysis under article 1, section 12, of the Washington State Constitution is any different than that under the United States Constitution. Thus, we do not decide that issue. In re Powell, 117 Wash.2d 175, 197, 814 P.2d 635 (1991), rev'd on writ of habeas corpus sub nom. Powell v. Ducharme, 998 F.2d 710 (1993); Forbes v. Seattle, 113 Wash.2d 929, 934, 785 P.2d 431 (1990) (absent analysis of criteria set Furthermore, the privileges and immunities clause of article 1, section 12 of the Washington State Constitution and the equal protection clause of the Fourteenth Amendment to the United States Constitution are substantially identical, prohibiting invidious discrimination by the State in the enactment and enforcement of its laws. State v. Perrigoue, 81 Wash.2d 640, 503 P.2d 1063 (1972); Olsen, 48 Wash.2d at 550, 295 P.2d 324. See also American Network v. Utilities and Trans. Comm'n, 113 Wash.2d 59, 776 P.2d 950 (1989); Long v. Chiropractic Soc'y, 93 Wash.2d 757, 760, 613 P.2d 124 (1980). ⁸ We find no violation of that Eakins's right to equal protection of the law.

forth in State v. [869 P.2d 86] Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), a claim is resolved under the federal constitution rather than under the state constitution).

CHARACTER EVIDENCE

The circumstances forming the basis for the criminal charges are not disputed. Eakins had been diagnosed as having a personality disorder and suffering from fits of depression. Lindahl's rejection of their relationship aggravated this depression. Eakins confronted Lindahl at the restaurant where she was employed. When she asked him to leave, he threw either a drinking glass or coffee cup at her and chased her into the cocktail lounge of the restaurant. Mark Hansen, a cook at the restaurant, tried to help Lindahl. Eakins then pulled out a loaded revolver, pointed it at Hansen, and then at Lindahl, holding the weapon to her face and threatening to "blow her brains out".

At trial, Eakins denied that he intended to assault Lindahl and did not recall confronting Hansen. Eakins testified that he had consumed large quantities of drugs and alcohol at home; that he was delirious thinking that he was experiencing a nightmare; that he did not recall going to the restaurant; that the first thing he recalled was a glass flying through the air and hitting Lindahl; that the next thing he recalled was pointing a gun at Lindahl and realizing he was not having a dream when he saw the "look of shock on her face"; and that he handed her the gun and asked forgiveness. To support his claim of diminished capacity, he presented the testimony of a psychiatrist who opined that Eakins's personality disorder, combined with the effects of the large quantities of alcohol and drugs he had consumed, prevented Eakins from forming a specific intent to commit the assaults.

Eakins's proffered a number of character witnesses who would testify that his reputation in the community was that of a peaceful law-abiding citizen. The trial court refused to allow these witnesses to testify reasoning that Eakins failed to dispute the evidence of the physical acts of pointing the weapon in a threatening manner. Had he done so, the court would have admitted his evidence of his character as a peaceful citizen. But, since Eakins did not claim he was lawfully displaying the weapon, or otherwise dispute the physical acts of the confrontation, the trial court, at the State's urging and relying on State v. Lewis, 37 Wash.2d 540, 225 P.2d 428 (1950), concluded that character evidence was not relevant as to whether Eakins had the intent to support the assault charges.

According to the State's witness, Eakins did not appear to be intoxicated; he simply became enraged when Lindahl asked him to leave. The officers who interrogated Eakins 4 hours after the incident testified that Eakins's speech was clear and coherent, that he did not appear to be under the influence of drugs or alcohol, and that he was able to relate a clear description of the route he took when leaving the restaurant.

The trial court's reliance on Lewis to exclude proffered evidence of Eakins's character was misplaced. Generally, relevant evidence is admissible, ER 402, unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, is misleading to the jury, is a cause of undue delay, is a waste of time, or is a cumulation of evidence. ER 403. Evidence is relevant when it has any tendency to make the existence of any fact that is of consequence to the determination of the case more or less probable than it would otherwise be without the evidence. ER 401.

An accused in a criminal case is entitled to introduce reputation evidence of a character trait pertinent to rebut the nature of the charge against him. ER 404(a)(1), 405(a); State v. Arine, 182 Wash. 697, 48 P.2d 249 (1935). Character evidence may be used circumstantially to show that the accused acted consistently with that character, State v. Kelly, 102 Wash.2d 188, 193, 685 P.2d 564 (1984), and is as much a part of the evidence as any other evidence. State v. Allen, 89 Wash.2d 651, 657, 574 P.2d 1182 (1978).

In Lewis, supra, the defendant was...