State v. Thomason, No. 38675-5-II (Wash. App. 2/23/2010)
| Decision Date | 23 February 2010 |
| Docket Number | No. 38675-5-II.,38675-5-II. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ALBERT THOMASON, Appellant. |
Appeal from Clark Superior Court. Docket No: 08-1-01004-0. Judgment or order under review. Date filed: 12/03/2008. Judge signing: Honorable John F Nichols.
Counsel for Appellant(s), Catherine E. Glinski, Attorney at Law, Po Box 761, Manchester, WA, 98353-0761.
Counsel for Respondent(s), Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Offi, Po Box 5000, Vancouver, WA, 98666-5000.
UNPUBLISHED OPINION
Albert Thomason appeals his convictions for second degree assault and unlawful imprisonment of Angela Wilde and unlawful imprisonment of TRW,1 Wilde's 14-year-old daughter. Thomason argues that the trial court erred by failing to instruct the jury on the inferior offense of third degree assault and by imposing exceptional sentences on the two counts involving Wilde based on the jury's finding of "deliberate cruelty." Thomason also contends that the trial court's 10-year no contact order protecting TRW is improper because it exceeds the maximum statutory sentence for unlawful imprisonment. We affirm Thomason's assault conviction, but reverse his exceptional sentences. We remand for resentencing and entry of an amended no contact order.
At about 11:00 p.m. on June 13, 2008, Angela Wilde met her boyfriend Jeremiah Thomason,2 his father Albert Thomason, and co-workers at a bar for drinks. Jeremiah and Thomason had been drinking and playing pool for a couple of hours before Wilde arrived. At trial, Thomason stated that he became intoxicated after drinking Jägermeister, an herbal liqueur, and "washing [it] down with rum and cokes." Report of Proceedings (RP) (Nov. 24, 2008) at 108. Over the next three hours, the group shared "a couple pitchers of beer." RP (Nov. 24, 2008) at 24. Wilde testified that she had some shots of Jägermeister before she left and "was feeling good." RP (Nov. 24, 2008) at 45-46. Wilde testified that Thomason seemed "[a]lot more" intoxicated than her at the bar, but that he had no trouble walking or communicating. RP (Nov. 24, 2008) at 25.
Jeremiah, Thomason and Wilde stayed until the bar closed. After the bar closed, Wilde, Jeremiah, Thomason and Akrista Grier, the bartender's friend, drove to Wilde and Jeremiah's home for "a few beers." 3 RP (Nov. 24, 2008) at 26. At trial, Grier testified that Thomason was noticeably affected by alcohol but that he had no trouble keeping his balance or communicating. During this time, Thomason spoke to his son about rumors that Wilde had been going out with other men. Grier left at about 3:00 a.m. Wilde cleaned up the kitchen, put on her pajamas and got ready for bed.
Wilde testified that after she lay down on her mattress in the living room to go to sleep, Thomason kicked her one time in the eye "out of the blue" with his cowboy boot. RP (Nov. 24, 2008) at 48. Wilde testified that there had been no arguments or disagreements leading up to the assault. After the assault, "there was blood everywhere," and Thomason "scream[ed] and yell[ed]" at Wilde, calling her "filthy names." RP (Nov. 24, 2008) at 32-33. Thomason grabbed Wilde by the throat and accused her of cheating on his son.
Thomason admitted assaulting Wilde, but disputed her version of events and denied kicking her. Thomason testified that "[t]here was a lot of shouting going on" after Grier left and that he punched Wilde once in her eye with his fist after she insulted his wife and daughter with vulgar language.4 Thomason hit Wilde because her comments "pissed [him] off." RP (Nov. 24, 2008) at 115. Thomason repeatedly testified at trial that the strike was "instantaneous." RP (Nov. 24, 2008) at 115, 122, 124, 135. On cross-examination, the following exchange occurred:
After Thomason assaulted Wilde, she ran upstairs to look for a phone to call the police because the downstairs phones had been disabled.5 Thomason chased her up the stairs and grabbed her leg, but Wilde "shook him off." RP (Nov. 24, 2008) at 34. Wilde entered her 14-year-old daughter TRW's bedroom and Thomason "threw [Wilde] on [the] bed," waking up TRW. RP (Nov. 24, 2008) at 35. TRW testified that Wilde's eye was "gushing out blood" and that Thomason held Wilde by her wrists. RP (Nov. 24, 2008) at 55. Wilde told TRW to call 911 on her cell phone. Thomason grabbed the phone out of TRW's hand so that she could not call the police for help.
Thomason prevented Wilde and TRW from leaving TRW's bedroom by "standing in the doorway with both hands against the doorway." RP (Nov. 24, 2008) at 59. Thomason told Jeremiah to load up his things in the truck. At trial, the witnesses disagreed about how long Thomason prevented Wilde and TRW from leaving the bedroom and whether he spoke to them.6
At one point, Wilde asked to use the bathroom across the hall. Thomason told her she could use the bathroom if she left the bathroom door open. Thomason testified that he made Wilde leave the door open so she would not escape through another bathroom door into the adjacent master bedroom. After using the bathroom, Wilde ran into the master bedroom to yell out the window for help. Thomason grabbed her by her ponytail and pushed her back into TRW's bedroom.7
After Jeremiah finished loading the truck, the two men left the house. On the way out, Thomason hid TRW's phone in the cushions of a couch in the garage. He told TRW that her phone was somewhere in the garage, but told her to find it. TRW spent about 20 minutes searching before she found her phone and called the police. The responding police officer testified that Wilde's eyes were bleeding and swollen shut and that she could not open her injured eye when asked. As a result of the assault, Wilde has two scars, permanent ringing in one ear, and "problems focusing" while reading. RP (Nov. 24, 2008) at 52. Medical evidence admitted at trial revealed that Wilde received a "[n]ondisplaced fracture, left inferior orbital floor."8 RP (Nov. 24, 2008) at 124.
On July 29, 2008, the State charged Thomason by amended information with first degree robbery,9 second degree assault,10 and two counts of unlawful imprisonment,11 one each for restraining Angela Wilde and TRW. The State sought exceptional sentences for all charges involving Wilde because Thomason "manifested deliberate cruelty or intimidation of the victim." Clerk's Papers (CP) at 8. Prior to trial on November 24 and 25, 2008, the trial court dismissed the robbery charge.
The trial court ruled that there was sufficient evidence for the State's proposed instruction on deliberate cruelty,12 and Thomason took exception. The trial court rejected Thomason's proposed instructions on third degree assault and criminal negligence, and Thomason took exception. Thomason argued his theory of intoxication and provocation in closing argument, and the trial court instructed the jury that intoxication "may be considered in determining whether the defendant acted intentionally." CP at 69.
On November 25, 2008, the jury found Thomason guilty of the second degree assault and both unlawful imprisonment counts. The jury returned special verdicts finding that Thomason committed the assault and unlawful imprisonment of Wilde with deliberate cruelty.
The trial court imposed a 48-month exceptional sentence for the assault, a 48-month exceptional sentence for unlawfully imprisoning Wilde, and a 12-month standard range sentence for unlawfully imprisoning TRW, with all sentences to run concurrently to one another.13 Additionally, the trial court imposed 10-year nocontact orders prohibiting Thomason from contacting either Wilde or TRW. The trial court subsequently issued findings of fact and conclusions of law justifying Thomason's exceptional sentence. The trial court denied Thomason's motion for a new trial.
Thomason now appeals.
Thomason argues that the trial court denied him a fair trial by refusing to instruct the jury on third degree assault. Thomason contends that he struck Wilde due to his intoxication and her provocation, and that the trial court's failure to instruct the jury on the inferior offense "disarmed" his theory that he acted with criminal negligence, rather than intent. Appellant's Br. at 14. He asserts that without the third degree assault instruction, "the jury was required to choose between convicting Thomason of second degree assault and acquitting him." Appellant's Br. at 14. We disagree.
A trial court's decision about whether to instruct on an inferior degree offense involves the application of law to facts, which we review de novo. See State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (); State v. Dearbone, 125 Wn.2d 173, 178, 883 P.2d 303 (1994) (). We review the facts in the light most favorable to Thomason. See Fernandez-Medina, 141 Wn.2d at 455-56.
A defendant is entitled to instruction on an inferior degree offense when (1) the statutes for both the charged offense and the proposed inferior degree offense "proscribe but one offense," (2) the information charges an offense that is divided into degrees and the proposed offense is an inferior degree of the charged offense, and (3) there is evidence that the defendant committed only the inferior offense. Fernandez-Medina, 141 Wn.2d at 454 (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381...
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