State v. Keend

• Decision Date: 18 September 2007
• Docket Number: No. 35222-2-II.,35222-2-II.
• Citation: 166 P.3d 1268
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Mark Thomas KEEND, Appellant.

166 P.3d 1268

STATE of Washington, Respondent, v. Mark Thomas KEEND, Appellant.

No. 35222-2-II.

Court of Appeals of Washington, Division 2.

September 18, 2007.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

Jill Landes, Port Townsend, WA, for Respondent.

BRIDGEWATER, P.J.

¶ 1 Mark Thomas Keend appeals his jury conviction for second degree assault under RCW 9A.36.021(1)(a). We hold that when the State charges a person with second degree assault for intentionally assaulting and recklessly inflicting substantial bodily harm, it is not misleading, nor does it create a mandatory presumption, for the trial court to instruct, as defined by RCW 9A.08.010(2), that "[r]ecklessness also is established if a person acts intentionally or knowingly." CP at 33, Instruction no. 9. In addition, because the evidence was insufficient to support an inference that Keend did not recklessly inflict substantial bodily harm, we hold that a lesser-included instruction would have been inappropriate. Also, we hold that the State is not required to allege or prove as an element of second degree assault that the act did not amount to first degree assault. Finally, we adhere to our decision in State v. Chavez, 134 Wash.App. 657, 142 P.3d 1110 (2006), review granted, 160 Wash.2d 1021, 163 P.3d 795 (2007), in which we held that the judiciary has not violated the separation of powers doctrine by defining common law assault. We affirm.

FACTS

¶ 2 Outside a bar in Port Angeles, Keend approached Daniel Reeves, asked him some questions about an alleged relationship with Keend's sister, and then punched him in the jaw. Keend broke Reeves's jaw, requiring doctors at Harborview Medical Center to wire his jaw closed for over two weeks. Then, after ultimately having his jaw realigned, Reeves wore braces on his teeth for another three weeks. During this treatment, Reeves missed at least two and a half months of work.

¶ 3 Keend admitted to Officer Edwin Benedict that he had punched Reeves in the jaw. According to Officer Benedict, Keend was mad that Reeves was allegedly involved in a sexual relationship with his then 16 year-old sister.¹ The State charged Keend with second degree assault under RCW 9A.36.021(1)(a), which provides that a person is guilty of second degree assault if he, under circumstances not amounting to first degree assault, intentionally assaults another and thereby recklessly inflicts substantial bodily harm. A jury convicted Keend. Keend appeals.

ANALYSIS

I. Recklessness Instruction

¶ 4 Among other things, Keend argues that the "recklessness" instruction in his case created a mandatory presumption, misled the jury regarding an essential element, and misstated the law. Br. of Appellant at 5. Here, the "recklessness" instruction, taken from 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.03, at 153 (2d ed. 1994) (WPIC), stated:

A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and the disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.[²]

Recklessness also is established if a person acts intentionally or knowingly.

CP at 33 (emphasis added). The first sentence of this instruction is taken from RCW 9A.08.010(1)(c); the second sentence of this instruction is taken from RCW 9A.08.010(2).

¶ 5 Although Keend assigns error, cites authority, and makes argument, it appears that he is raising this issue for the first time on appeal. "Generally, when there is no objection on the record, we will not consider an alleged instructional error unless the appellant first demonstrates that the error is a `manifest error affecting a constitutional right.'" State v. Gerdts, 136 Wash.App. 720, 726, 150 P.3d 627 (2007) (quoting RAP 2.5(a)(3)). But because Keend argues that his counsel was ineffective for failing to object to this instruction on the above grounds, we will nevertheless address his argument. Gerdts, 136 Wash.App. at 726, 150 P.3d 627.

¶ 6 To establish ineffective assistance of counsel, Keend must show that: (1) his counsel's performance was deficient; and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). Keend must overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wash.2d at 335, 899 P.2d 1251. And to show prejudice, he must establish "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wash.2d at 335, 899 P.2d 1251. In this context, to establish deficient performance or prejudice, Keend first must show that if his counsel had objected to the knowledge instruction on these grounds, the objection likely would have been successful. See Gerdts, 136 Wash.App. at 727, 150 P.3d 627.

¶ 7 "Jury instructions are `sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law.'" State v. Douglas, 128 Wash.App. 555, 562, 116 P.3d 1012 (2005) (quoting Bodin v. City of Stanwood, 130 Wash.2d 726, 732, 927 P.2d 240 (1996)). We review challenged jury instructions de novo, examining the effect of a particular phrase in an instruction by considering the instructions as a whole and reading the challenged portions in the context of all the instructions given. State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996).

¶ 8 In a criminal case, the trial court must instruct the jury that the State has the burden to prove each essential element of the crime beyond a reasonable doubt. Pirtle, 127 Wash.2d at 656, 904 P.2d 245. It is reversible error if the instructions relieve the State of that burden. Pirtle, 127 Wash.2d at 656, 904 P.2d 245.

¶ 9 Relying on our decision in State v. Goble, 131 Wash.App. 194, 126 P.3d 821 (2005), Keend argues that the last sentence of the "recklessness" instruction created a mandatory presumption and allowed the jury to convict him if it found that he had acted intentionally.³ Keend argues, for example, that this instruction allowed the jury to presume that he recklessly inflicted substantial bodily harm on the victim if the jury found that he intentionally assaulted the victim. His argument is without merit.

¶ 10 In Goble, we analyzed a "knowledge" instruction that included the sentence, "[a]cting knowingly or with knowledge also is established if a person acts intentionally." Goble, 131 Wash.App. at 202, 126 P.3d 821. In that case, we held that the instruction was confusing because it potentially allowed the jury to find the defendant guilty of third degree assault against a law enforcement officer if it found that the defendant intentionally assaulted the victim, but without having to find that the defendant knew the victim was a law enforcement officer performing his official duties. Goble, 131 Wash. App. at 202-03, 126 P.3d 821. We stated:

We agree that the instruction is confusing and that the [challenged] portion of the instruction allowed the jury to presume Goble knew [the victim's] status at the time of the incident if it found Goble had intentionally assaulted [the victim]. This conflated the intent and knowledge elements required under the to-convict instruction into a single element and relieved the State of its burden of proving that Goble knew [the victim's] status if it found the assault was intentional.

Goble, 131 Wash.App. at 203, 126 P.3d 821 (emphasis added).⁴

¶ 11 Here, under RCW 9A.36.021(1)(a), a person commits second degree assault if he "[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm." This crime is defined by an act (assault) and a result (substantial bodily harm). See, e.g., State v. Tunney, 129 Wash.2d 336, 341, 917 P.2d 95 (1996). And the mens rea of intentionally relates to the act (assault), while the mens rea of recklessly relates to the result (substantial bodily harm).

¶ 12 Although assault requires the mens rea of intent, assault by battery does not require specific intent to accomplish some further result, such as inflicting substantial bodily harm. State v. Daniels, 87 Wash.App. 149, 155, 940 P.2d 690 (1997), review denied, 133 Wash.2d 1031, 950 P.2d 476 (1998); State v. Esters, 84 Wash.App. 180, 183-84, 927 P.2d 1140 (1996), review denied, 131 Wash.2d 1024, 937 P.2d 1101 (1997). We have defined common-law assault by battery as "an unlawful touching with criminal intent." State v. Russell, 69 Wash.App. 237, 246, 848 P.2d 743, review denied, 122 Wash.2d 1003, 859 P.2d 603 (1993). In other words, assault by battery simply requires intent to do the physical act constituting assault. State v. Hall, 104 Wash.App. 56, 62, 14 P.3d 884 (2000), review denied, 143 Wash.2d 1023, 25 P.3d 1020 (2001). Thus, under RCW 9A.36.021(1)(a), a defendant could intend to assault another without thereby intending to inflict substantial bodily harm.⁵

¶ 13 The "to convict" instruction in this case sets forth the elements of the crime separately, as follows:

(1) That on or about the 31 st day of March, 2006, the Defendant intentionally assaulted Daniel Reeves;

(2) That the Defendant thereby recklessly inflicted substantial bodily harm on Daniel Reeves; and

(3) That the acts occurred in the State of Washington.

CP at 30 (emphasis added). And the trial court separately defined "intentionally" in instruction number 10 and separately defined "recklessly" in instruction number. 9. CP at 33-34.⁶

¶ 14 Thus, under both the statute and the trial court's instructions, the jury could convict Keend if he intentionally assaulted the victim and one of three results...