State v. Winings

• Decision Date: 23 February 2005
• Docket Number: No. 30578-0-II.,30578-0-II.
• Citation: 126 Wash. App. 75,126 Wn. App. 75,107 P.3d 141
• Parties: STATE of Washington, Respondent, v. Ryan Lee WININGS, Appellant.
• Court: Washington Court of Appeals

107 P.3d 141

126 Wn. App. 75

126 Wash. App. 75

STATE of Washington, Respondent, v. Ryan Lee WININGS, Appellant.

No. 30578-0-II.

Court of Appeals of Washington, Division 2.

February 23, 2005.

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

Cheryl Taylor, Attorney at Law, Olympia, WA, for Respondent.

PART PUBLISHED OPINION

BRIDGEWATER, J.

¶ 1 Ryan Lee Winings appeals his conviction of second degree assault while armed with a deadly weapon. We affirm.

¶ 2 On March 24, 2003, Daniel Warner went to Tracy Neitzel's residence to show him a sword that his employer had given him. Several people were present at the residence when Mr. Warner arrived, including Ryan Winings. Some of the guests were drinking, and Winings was heavily intoxicated. At trial, Neitzel testified that Winings had been on a "3-day drunk." 3 Report of Proceedings (RP) (Jun. 25, 2003) at 60.

¶ 3 Mr. Warner was showing the sword to his friends, when Winings grabbed the sword out of his hands and pulled it out of its sheath. Winings began swinging the sword in the air. Mr. Warner testified that he initially believed that Winings was just "playing around," but things "got a little out of hand" when Winings began poking him in the chest with the sword. 3 RP at 24, 33. Mr. Warner said, "`ow' that hurts," and then Winings stabbed Mr. Warner in the foot with the sword. 3 RP at 25. The sword cut a hole into Mr. Warner's leather shoe. Mr. Warner was not seriously injured, but he received a small cut on his toe. He testified that during the incident, he believed that his life was in danger. He felt "uneasy" and ran out of the house. 3 RP at 26. Mr. Warner did not seek medical attention for his foot.

¶ 4 Winings was charged with second degree assault while armed with a deadly weapon. The information states:

In the County of Clallam, State of Washington, on or about the 24th day of March, 2003, the Defendant did assault another with a deadly weapon; in violation of RCW 9A.36.021, a Class B felony.

Clerk's Papers (CP) at 78.

¶ 5 Winings was tried before a jury on June 25, 2003. During the trial, Winings requested that the court give a jury instruction on the lesser degree offense of fourth degree assault. The court denied his request, stating that courts need only instruct the jury as to a lesser degree offense where the evidence supports a finding that only the lesser degree offense was committed. The court found that the sword was a deadly weapon per se because its blade was longer than three inches and, thus, the evidence did not support any finding that only fourth degree assault was committed. Winings objected to the court's ruling.

¶ 6 In addition, the court gave the following instructions:

No. 6

An assault is an intentional touching or striking or cutting of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking or cutting is offensive, if the touching or striking or cutting would offend an ordinary person who is not unduly sensitive.

An assault is also an act done with intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.

An assault is an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.

CP at 26.

No. 7

Deadly weapon means any weapon, device, instrument, substance or article which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily injury.

CP at 27.

No. 12

For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime.

A deadly weapon for purposes of the special verdict is an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are examples of deadly weapons: blackjack, sling shot, metal knuckles, any dirk, dagger, pistol, revolver or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, and any metal pipe or bar used or intended to be used as a club.

CP at 32.

¶ 7 The jury convicted Winings as charged and returned a special verdict finding that he was armed with a deadly weapon at the time of the assault. At sentencing, the State offered evidence that Winings had five prior California felony convictions from 1992. These offenses include three felony first degree burglary convictions for unlawfully entering a dwelling with intent to commit larceny and any other felony, one conviction for felony possession of a controlled substance — cocaine for sale, and one conviction for felony possession of a controlled substance — cocaine. Winings pleaded guilty to each of these offenses. The State submitted what appear to be certified copies of the minute orders,¹ Winings' guilty pleas, and the charging documents identifying the crimes Wining had been charged with and their elements. Additionally, the State submitted an abstract of judgment, which shows that Winings was convicted of three counts of first degree burglary and possession of a controlled substance and his sentence. These documents were not offered as exhibits, but were presented to the court at the time of sentencing.²

¶ 8 Winings objected to the use of his guilty plea to felony possession of a controlled substance for sale in calculating his offender score because he believed it was part of his plea bargain with regard to the simple possession charge. As such, he argued that his offender score should be four. The court denied his objection, and held that the State had sufficiently proved the conviction. Winings raised no other objections to the use of his California convictions. The court determined that Winings had an offender score of five and sentenced him to 34 months, the low end of the standard range.

I. Information

¶ 9 Winings first contends that the information is factually deficient because it failed to identify the victim, the weapon used, or the circumstances that made the "weapon deadly." Br. of Appellant at 15. Winings is in error.

¶ 10 A charging document must contain "[a]ll essential elements of a crime" so as to give the defendant notice of the charges and allow the defendant to prepare a defense. State v. Tresenriter, 101 Wash.App. 486, 491, 4 P.3d 145 (2000) (quoting State v. Kjorsvik, 117 Wash.2d 93, 97, 812 P.2d 86 (1991)). When, as here, the defendant challenges the charging document for the first time on appeal, we liberally construe the document in favor of validity. Tresenriter, 101 Wash.App. at 491, 4 P.3d 145. Under the liberal construction rule, if an apparently missing element may be fairly implied from language within the charging document, we will uphold the charging document on appeal. Tresenriter, 101 Wash.App. at 491, 4 P.3d 145. The test is: "(1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?" Tresenriter, 101 Wash.App. at 491, 4 P.3d 145 (quoting Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86).

¶ 11 We distinguish between charging documents that are constitutionally deficient — i.e., documents that fail to allege sufficient facts supporting each element of the crime charged — and those that are merely vague. State v. Leach, 113 Wash.2d 679, 686, 782 P.2d 552 (1989). A charging document that states each statutory element of a crime, but is vague as to some other significant matter, may be corrected under a bill of particulars. Leach, 113 Wash.2d at 687, 782 P.2d 552. A defendant may not challenge a charging document for "vagueness" on appeal if he or she failed to request a bill of particulars at trial. Leach, 113 Wash.2d at 687, 782 P.2d 552.

¶ 12 In this case, Winings was charged with second degree assault while armed with a deadly weapon in violation of RCW 9A.36.021, which provides in relevant part:

(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

....

(c) Assaults another with a deadly weapon.

RCW 9A.36.021(1)(c) (emphasis added).

¶ 13 Winings concedes that the information includes each essential legal element of the charge of second degree assault while armed with a deadly weapon. But he argues that Leach imposes two requirements for a valid charging document: a defendant must be notified of both the legal elements of the offense and the essential facts supporting those elements. Because the information does not state the victim, the weapon used, or the manner in which Winings used the weapon, he contends that the information fails to allege all of the essential facts supporting every element of second degree assault and is thereby defective.

¶ 14 Leach requires only that the charging instrument allege "sufficient facts to support every element of the crime charged" — it does not impose any additional requirement that the State allege facts beyond those that sufficiently support the elements of the crime charged or that the State describe the facts with great specificity.³ Leach, 113 Wash.2d at 688, 782 P.2d 552. Construed liberally, the information sufficiently lists facts supporting each element of second degree assault with a deadly weapon. It alleges that Winings assaulted another with a deadly weapon, that his actions violated RCW 9A.36.021 and constituted a class B...