State v. Gomez

• Decision Date: 17 September 2018
• Docket Number: No. 75673-7-I,75673-7-I
• Citation: 426 P.3d 787
• Parties: The STATE of Washington, Respondent, v. Mauricio Garcia GOMEZ, Appellant.
• Court: Washington Court of Appeals

426 P.3d 787

The STATE of Washington, Respondent,

v.Mauricio Garcia GOMEZ, Appellant.

No. 75673-7-I

Court of Appeals of Washington, Division 1.

FILED: September 17, 2018

Kevin Andrew March, Nielsen Broman Koch PLLC, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.

Donna Lynn Wise, Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Schindler, J.

¶ 1 Assault in the second degree is an alternative means crime. The State charged Mauricio Garcia Gomez with two counts of assault in the second degree committed by three alternative means: intentional assault inflicting substantial bodily harm, or assault with a deadly weapon, or assault by strangulation. Consistent with well established case law, the jury instructions state the jury must agree unanimously on the crime of assault in the second degree but need not be unanimous as to which of the alternative means has been proved beyond a reasonable doubt. Garcia Gomez appeals the jury convictions on the two counts of assault in the second degree. Garcia Gomez contends he was deprived of his constitutional right to a unanimous jury verdict because sufficient evidence does not support each of the charged alternative means to commit assault in the second degree. In the alternative, Garcia Gomez argues that if the jury was not unanimous as to the alternative means, the convictions violate his right to due process. In a supplemental assignment of error, Garcia Gomez claims the statutory alternative means to commit assault in the second degree are alternative crimes, not alternative means. Because overwhelming and unrebutted evidence supports each of the charged means of committing assault in the second degree and the assault statute lists alternative means of proving a single crime, not alternative crimes, we affirm the jury convictions.

FACTS

¶ 2 After interviewing 13-year-old I.G. at school on October 28, 2015, Kent Police Department Detective Melanie Robinson went to the apartment complex where the family lived to meet with his mother C.G. C.G. had black bruises under her eyes, an "obviously disfigured" nose, and a "cauliflowered" ear. C.G. showed Detective Robinson a "long scar" on her arm and "large bruises" on her legs. Detective Robinson took photographs of the injuries to C.G. The police arrested Mauricio Garcia Gomez that day. After his arrest, C.G. went to the Valley Medical Center emergency room.

¶ 3 The State charged Garcia Gomez with two counts of assault in the second degree. The information alleged as to each count that Garcia Gomez committed domestic violence assault in the second degree "between September 1, 2015 and October 30, 2015" by three alternative means: intentionally assaulting C.G. "with a deadly weapon, to-wit: a knife," or intentionally assaulting C.G. "thereby recklessly inflicting substantial bodily harm," or assaulting C.G. "by strangulation." The information alleged the aggravating factors of domestic violence; that the offense was a part of an ongoing pattern of psychological, physical, or sexual abuse of the victim; multiple incidents over a prolonged period of time; and that Garcia Gomez committed domestic violence "within sight or sound of the ... minor children" in violation of RCW 9.94A.535(3)(h)(i) and (ii).

¶ 4 Garcia Gomez pleaded not guilty. The trial court agreed to bifurcate the trial on the two counts of assault in the second degree and the aggravating factors.

¶ 5 A number of witnesses testified during the trial on the two counts of assault in the second degree, including C.G., I.G., the apartment manager, and Dr. Russell Spies. The court admitted into evidence the photographs Detective Robinson took of C.G. on October 28 and the whip Garcia Gomez used to hit C.G. on her legs. The defense did not call any witnesses.

¶ 6 C.G. testified that in the fall of 2015, she and Garcia Gomez lived in a two-bedroom apartment in Kent with their five children, ranging from age 2 to 13. C.G. testified the injuries inflicted by Garcia Gomez occurred at "different times" in September and October of 2015.

¶ 7 C.G. testified that Garcia Gomez hit her "mainly at home.... [P]retty much whenever he felt like it." C.G. said that approximately two weeks before the police arrested Garcia Gomez, he walked into the kitchen and punched her in the nose. C.G. testified Garcia Gomez punched her so hard that her vision became "blurry" and her nose was bleeding heavily. C.G. thought her nose was broken

. Her nose had a "[d]ifferent structure" after Garcia Gomez punched her and the swelling made it difficult to breathe.

¶ 8 C.G. testified that in September or October 2015, Garcia Gomez punched her in her right ear. Because he would repeatedly slap and punch her on the right side of her face and ear in the days that followed, the swelling never healed. C.G. testified the swelling in her ear hurt, "[e]ven when he wasn’t hitting it."

¶ 9 C.G. testified that during the same time period, Garcia Gomez made a whip with electrical cords. Although C.G. was wearing jeans, the injuries he inflicted using the whip "burned" for days and left marks on her legs.

¶ 10 C.G. testified that another time in September or October, Garcia Gomez grabbed her "around the neck" with both hands while she was in bed. Garcia Gomez stood over her and tightened his grip so hard she was unable to breathe.

¶ 11 On another occasion in September or October while C.G. was driving, Garcia Gomez suddenly sliced her right arm with the blade of a pocketknife. The cut "burned" and bled. C.G. did not know why Garcia Gomez cut her. "He just said it just felt right to do it." C.G. showed the jury the scar on her arm.

¶ 12 C.G. testified that she did not report the abuse or seek treatment for her injuries until after the police arrested Garcia Gomez. C.G. said she was "scared" the doctors would "ask[ ] questions" about "how ... those injuries happened."

¶ 13 Thirteen-year-old I.G. testified that in September and October 2015, his father physically abused his mother usually "twice every day," typically "in the bedroom and sometimes in the living room" of the apartment. I.G. testified that a couple of times, he heard his mother "screaming ... painful sounds." I.G. testified that his mother had bruises on her "face

," "legs," and "feet" and that her "nose got cracked." I.G. testified he did not "see those bruises before the fighting ..., it happened after the fighting." I.G. testified that when he heard "fighting ... in their bedroom[,] ... [m]y brothers and sisters" were also in the apartment.

¶ 14 I.G. saw Garcia Gomez use "his hands on my mom." I.G. described a time in September or October when he saw his father punch his mother "on the face" while she was driving. I.G. testified that his father would climb on top of his mother on the sofa in the living room and punch her. I.G. testified he "couldn’t" call the police because he was "scared ... [t]o make things worse."

¶ 15 The manager of the apartment complex testified that during September and October of 2015, she noticed C.G.’s "significant weight loss." On more than one occasion and at "different times," the manager saw that C.G. had "black eyes" and bruises on her face

and arms.

¶ 16 Dr. Spies examined C.G. on October 28. The severe pain in her neck and left shoulder radiated down her arm and caused numbness in her hand for more than a week. Dr. Spies testified C.G. suffered nerve damage between her neck and hand, likely from a "disc injury." Dr. Spies testified blunt force trauma to the right side of the face can "impact the nerves on the left neck[.] ... Like whiplash

."

¶ 17 Dr. Spies testified that the area around C.G.’s right eye was "discolored" and swollen. Breathing through her nose was difficult and painful. Dr. Spies testified her nose was visibly misshapen from either a deviated septum or a fracture, "or both," and surgery was necessary to repair her nasal passages. Dr. Spies said C.G. suffered from a "markedly" "large subchondral hematoma

" in her right ear, a deformity known as "cauliflower ear."¹ Because the injury to her ear was not treated right away, the deformity was likely permanent. Dr. Spies testified the black eye, broken nose, and deformed ear injuries were consistent with blunt force trauma.

¶ 18 The court instructed the jury the State had the burden of proving each of the elements of the crime of assault in the second degree beyond a reasonable doubt. Jury instruction 7 states, "A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count." The court instructed the jury that "[a] person commits the crime of assault in the second degree when he or she intentionally assaults another and thereby recklessly inflicts substantial bodily harm or assaults another with a deadly weapon or assaults another by strangulation."

¶ 19 Because C.G. testified to three different acts of intentional assault (punching C.G. in the nose, repeatedly hitting her in the ear, and using the whip to hit her), the court proposed giving a Petrich ² unanimity instruction. The defense agreed the court should give the instruction. Jury instruction 16 states:

The State alleges that the defendant committed acts of assault in the second degree on multiple occasions. To convict the defendant on any count of assault in the second degree, one particular act of assault in the second degree must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of assault in the second degree.

¶ 20 The "[t]o convict" jury instruction states the jury must unanimously agree that Garcia Gomez committed the crime of assault in the second degree but need not unanimously agree on the alternative means. The to-convict jury instruction on count 1...