State v. Estes

• Decision Date: 19 April 2016
• Docket Number: No. 46933–2–II.,46933–2–II.
• Citation: 193 Wash.App. 479,372 P.3d 163
• Parties: STATE of Washington, Respondent, v. Kevin Lee ESTES, Appellant.
• Court: Washington Court of Appeals

193 Wash.App. 479

372 P.3d 163

STATE of Washington, Respondent

v.Kevin Lee ESTES, Appellant.

No. 46933–2–II.

Court of Appeals of Washington, Division 2.

April 19, 2016.

Jennifer L. Dobson, Attorney at Law, Dana M. Nelson, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Brian Neal Wasankari, Pierce County Prosecuting Atty., Tacoma, WA, for Respondent.

MELNICK, J.

¶ 1 Kevin Estes appeals from the trial court's judgment and sentence after a jury found him guilty of assault in the third degree and felony harassment, each with a deadly weapon enhancement. The trial court sentenced Estes to total confinement for life without the possibility of release under the persistent offender statute.¹ Estes argues that he received ineffective assistance of counsel. He also asserts in his statement of additional grounds (SAG) that his attorney did not advise him that a felony with a deadly weapon enhancement constituted a strike under the persistent offender statute. Because defense counsel's performance was deficient and there is a reasonable probability that counsel's deficient performance prejudiced the outcome of the trial, we reverse and remand for a new trial.²

FACTS

I. General Overview

¶ 2 On February 18, 2014, Estes visited an apartment shared by James Randle and Anthony Prusek. Prusek's girlfriend, Ashley Stoltenberg, was present and Estes flirted with her, making her uncomfortable.

¶ 3 Estes returned to the apartment the next day. He consumed alcohol and played video games with Randle and Prusek. Estes began talking about Stoltenberg and made statements about her breasts. Prusek told Estes that Stoltenberg did not like his comments. Shortly thereafter, an angry Stoltenberg came out of the bedroom and told Estes to stop or she would slap him. Stoltenberg testified that Estes stood up looking angry and said, “Time to die, bitch,” while pulling a knife out of his pocket. 2 Report of Proceedings (RP) at 86. Stoltenberg knew that the blade was small enough to conceal in his pocket, but she could not say with certainty if the blade folded; she saw it for 10 seconds.

¶ 4 Prusek only caught the last word Estes spoke, which was “bitch.” 2 RP at 132. Prusek stated that Estes stood up like he was going after Stoltenberg. Prusek grabbed Estes and pulled him down on the ground where they wrestled. Suddenly, Estes had a knife in his hand and flailed his arms. According to Prusek, Estes was still trying to get towards Stoltenberg. The knife cut Prusek's foot and then his pinky finger. Prusek described the blade as “three and a half, four inches” in length. 2 RP at 134. He stated that the blade could have done “grave harm” and “[w]as the type of a blade that could have cut through your skin and into muscle.” 2 RP at 134. Stoltenberg called 911.

¶ 5 Randle took the knife away from Estes and went towards the kitchen. Stoltenberg saw Randle put the knife she believed Estes used on top of the refrigerator after Estes left. Randle also remembered putting the knife on top of the refrigerator. Prusek went to the bathroom to get bandages and to clean himself up. Randle told Estes to leave because the police were coming and Estes left.

¶ 6 Officer Greg Massey was the first officer to respond. He found Estes sitting in his car in the driveway. Estes appeared angry and agitated, opened the car door, and when asked, told Massey he was in the apartment and had been in a fight. Massey was unsure but remembered Estes saying something like, “[H]e felt that he needed to rid the world of people like the two that were inside the apartment.” 2 RP at 207–08. Massey searched Estes's person and seized a knife from him. That knife and a picture of it with a ruler beside it were admitted at trial. Massey described the knife as a fixed-bladed knife in a black sheath. The evidence technician who took the picture stated that the knife blade was about three inches long. Estes told Massey that the knife on his person was not the knife from the incident.

¶ 7 Officer Steven Pigman responded to the scene later and entered the apartment. He noticed a knife on the refrigerator and asked Stoltenberg whether it was used in the assault. She told him “[Y]es.” 3 RP at 256. Randle believed the officers took the knife from on top of the refrigerator. When the State showed Randle the knife in evidence, he could not remember if it was the knife he took from Estes that day. To Pigman's knowledge, the knife on the refrigerator was not taken into evidence. Pigman believed the knife he saw in the apartment was six inches in length total. He did not remember the length of the blade but believed it was exposed. He also stated, “I didn't inspect it at all.” 3 RP at 269. The State asked Pigman if the knife he saw was the type that could do someone harm. Pigman answered that it could. Pigman also confirmed that the knife would do serious bodily injury.

II. Procedural History

¶ 8 The State charged Estes with two counts of assault in the second degree, against Prusek and Stoltenberg respectively, and one count of felony harassment against Stoltenberg. Each count carried a deadly weapon enhancement. In the charging language of the information, the State referenced Estes's “multiple current offenses,” which because of an already high offender score, would result in some of his offenses going unpunished without an exceptional sentence. Clerk's Papers (CP) at 245, 246.

¶ 9 In February 2014, the State filed a persistent offender notice indicating that Estes potentially faced a third strike.³ The notice stated,

[T]he offense of assault in the second degree; assault in the second degree; felony harassment, with which you have been charged, is a “Most Serious Offense” as defined in RCW 9.94A.030. If you are convicted at trial or plead guilty to this charge or any other most serious offense, and you have been convicted on two previous occasions of other “most serious offenses,” you will be classified at sentencing as a ‘Persistent Offender,’ as defined in RCW 9.94A.030 and your sentence will be life without the possibility of parole as provided in RCW 9.94A.570.

CP at 381 (emphasis omitted).

¶ 10 Prior to trial, the court heard motions. Estes's lawyer argued that the State should not be allowed to mention or introduce the knife found on Estes's person. The trial court determined that whether or not the knife was used or readily accessible was a question for the jury. The court found the knife taken from Estes's person was relevant and “would certainly be admissible, if for no other reason than just the enhancement.” 1 RP at 49. Estes's lawyer also filed a Knapstad⁴ motion in which he argued the assault in the second degree counts should be dismissed because there was no evidence to support them. Estes's criminal history was attached to the Knapstad motion.⁵

¶ 11 During Estes's jury trial, Estes's lawyer again objected to the admission of the knife taken from Estes's person. The trial court overruled the objection. Estes's lawyer also objected to specific jury instructions, including all instructions on assault in the third degree. The trial court acknowledged the objection but instructed the jury on assault in the third degree and assault in the fourth degree, which are inferior degree crimes to assault in the second degree. Estes did not object to the court's instructions on assault in the fourth degree or on the deadly weapon enhancements. During the discussion of the jury instructions, defense counsel questioned whether the language in the deadly weapon enhancement special verdict form for count II, assault in the second degree against Stoltenberg, should be changed because assault in the fourth degree did not have a deadly weapon enhancement. At the same time, defense counsel objected again to the assault in the third degree instruction but did not object to the deadly weapon enhancement special verdict form for the felony harassment charge.

¶ 12 During closing argument, Estes's lawyer contended that the State failed to prove Estes assaulted anyone with a knife and that the State could not prove that the knife in evidence was the knife from the apartment. Defense counsel emphasized the inconsistencies in the witnesses' and the police officers' testimony. Defense counsel argued that Estes was facing away from Stoltenberg when he allegedly threatened her. Counsel also argued that Stoltenberg “saw an opportunity to get rid of a problem, by making this statement and this story.” 4 RP at 459. Regarding the knife, defense counsel presented the theory that the knife was not used to cause harm to Prusek; instead, any harm occurred as the result of an accident. He also argued that because the knife from on top of the refrigerator was not in evidence, the jury was left to speculate about what it looked like. He stated, “They remember it being long and big and whatever, but it's not here.” 4 RP at 468–69.

¶ 13 The jury ultimately found Estes guilty of assault in the third degree against Prusek and felony harassment against Stoltenberg. The jury also found that Estes was armed with a deadly weapon at the time of the commission of both crimes.

¶ 14 When the court discussed scheduling Estes's sentencing, the State announced, “As the Court is aware, this is a third strike case.” 4 RP at 504. Defense counsel responded, “He wasn't convicted of a strike offense.” 4 RP at 504. The State explained, “[T]he Defendant is a third strike case because of the deadly weapon enhancements.” 4 RP at 504.

¶ 15 Post-trial, Estes's lawyer filed a motion to dismiss the deadly weapon enhancements, under CrR 7.4. At the motion hearing, defense counsel argued that the jury could not find that the knife was “used in such a way that was likely to or may bring about death” because it found Estes not guilty of assault in the second degree and that the jury could not find that the weapon was a “per se” deadly weapon. 4 RP at 510. Defense counsel provided the definition of the word “blade” and argued that the “cutting implement” was less...