State Of Washington, Respondent V. Rodney Bryson, Appellant (Majority)

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T Cir APPEALS jl' IN THE COURT OF APPEALS OF THE STATE OF WASHING!( 2015 JUL - 7 AM 8' 44 DIVISION II S. No. 45758 -0 -II By - STATE OF WASHINGTON, 01 0E Respondent, 1 ASE TY V. UNPUBLISHED OPINION RODNEY BRYSON, Appellant. MELNICK, J. — assault Rodney Bryson appeals his convictions for assault in the third degree and in the fourth degree. He argues that the State presented insufficient evidence to prove beyond a reasonable doubt that his intent toward the intended victim transferred to another. victim. Alternatively, Bryson argues that both his convictions for one count of assault in the third degree and one count of assault in the fourth degree should be reversed because his counsel was ineffective for failing to object to improper opinion testimony. In his statement of additional grounds, Bryson further asserts ( jeopardy, (4) of the 1) ineffective the trial of counsel, ( assistance court miscalculated verbatim report of proceedings, ( his 2) prosecutorial offender score, ( misconduct, ( 3) double 5) he did not receive requested copies 6) the State failed to timely file an information, and ( 7) one of the State' s witnesses committed perjury. We affirm. FACTS On July 5, 2013, Department of Corrections ( DOC) Officer Nicholas Kiser observed Bryson attempting to pry the license plate from a DOC vehicle. Kiser confronted Bryson and also notified Grays Harbor dispatch of the situation. Following a confrontation between Bryson and Kiser, Officer Robert Green handcuffed Bryson Morella and Sergeant Keith Dale arrived to assist. and took him into custody. Officer Ronald 45758 -0 -II The led Bryson to officers a patrol car to conduct a frisk. Green and Morella conducted the frisk, while Kiser and Dale stood' behind them. Bryson was agitated and verbally aggressive. Facing the patrol car, Bryson looked back over his shoulder three times. The third time he looked back, he spit. Bryson' s saliva landed on Kiser' s cheek, chin, and shirt. It also landed on Dale' s cheek. The State charged Bryson with one count of custodial assault against Kiser and one count of assault in the third degree against Dale. At a jury trial held on December 17, 2013, the State presented the above evidence through the testimony of Kiser, Dale, Green, and Morella. Kiser testified that Bryson' s saliva landed on his cheek, chin, and shirt and that he found it offensive. Kiser also .testified that Bryson was not coughing or choking at the time. Green testified that Bryson' s saliva went over his shoulder and he ducked to avoid being hit by it. During direct examination of Green, the State elicited the following testimony: Were you looking at [ Bryson] when the spit happened? STATE]:... STATE]: Were you looking at his face? GREEN] : Yes. STATE]: Okay. Is there any indication from his expression or anything that this was involuntary? GREEN] : No. STATE]: Okay. Was there any indication from his expression this was intentional? GREEN] : Yes. STATE]: Any doubt in your mind this was intentional? GREEN]: No. Report of Proceedings ( RP) at 31- 32. Bryson' s defense counsel did not object. Dale testified that Bryson " spit in ... Kiser' s face and part of that hit [ him] at the same time" on his cheek. RP at 65. During direct examination of Dale, the State elicited the following testimony: 2 45758 -0 -II Was he ... STATE]:... like this was some sort of involuntary coughing ... expectoration? DALE] : No, he wasn' t. STATE]:... [ DALE]: W] ere you looking at [ Bryson' s] face when he did it? Pretty much, yes. All right. Did this look like something that was intentional? STATE]: DALE]: That' s what it appeared to me. RP at 65. Bryson' s defense counsel did not object. Bryson testified that he did not spit at Kiser, but rather his dental appliance pinched his lip and he saliva to attempted did land on fix it. Kiser or Bryson claimed that he did not intentionally spit at Kiser, but if his Dale, it was an accident. Bryson also testified that he has a chronic cough, but he doesn' t remember coughing prior to or during the incident. During closing argument, the State argued that Bryson acted intentionally to assault Kiser by spitting on him and, because his saliva also hit Dale, Bryson acted intentionally to assault Dale. Without objection, the trial court gave the following assault jury instruction: An assault is an intentional touching of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching is offensive if the touching would offend an ordinary person who is not unduly sensitive. Clerk' s Papers ( CP) objection, the actor that "[ is also at 138 ( Instr. 10). The trial court additionally instructed the jury, without i] f a person acts with intent to assault another, but the act harms a third person, deemed to have acted with intent to assault the third person." CP at 138 ( Instr. The jury found Bryson not guilty on the charge of custodial assault against Kiser, but guilty of the lesser included assault in the fourth degree. The jury found Bryson guilty of assault in the third degree against Dale. The trial court calculated Bryson' s offender score as 6 and sentenced him to standard range sentence of 29 months in custody. Bryson appeals. 3 45758 -0 -II ANALYSIS SUFFICIENCY OF THE EVIDENCE I. Bryson argues that the transferred intent doctrine did not apply because Dale " did not suffer physical injury' or ` bodily 1 harm."' Br. of Appellant at 11 ( quoting RCW 9A. 04. 110( 4)( a)). We hold that when viewed in the light most favorable to the State, sufficient evidence exists to prove beyond a reasonable doubt that Dale was harmed. Standard of Review A. The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable State doubt." v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). " A claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably can be drawn therefrom." are equally reliable. determinations are Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence State v. Delmarter, 94 Wn. 2d 634, 638, 618 P. 2d 99 ( 1980). " for the trier of fact and cannot be reviewed on appeal." Credibility State v. Camarillo, 11.5 Wn.2d 60, 71, 794 P. 2d 850 ( 1990). B. Substantial Evidence Supports Bryson' s Conviction for Assault in the Third Degree Assault is a harmful or offensive touching regardless of whether any physical injury is done to the person. 1978).. RCW 9A.36. 031,. 041; State v. Humphries, 21 Wn. App. 405, 409, 586 P. 2d 130 Spitting can be an assault. Humphries, 21 Wn. App. at 408. Under the transferred intent doctrine, intent to assault one victim transfers to all victims who are harmed. State v. Elmi, 166 Wn.2d 209, 218, 207 P. 3d 439 ( 2009); see also RCW 9A. 36. 011( 1)( a). Once the State establishes 1 Bryson does not argue that the State presented insufficient evidence to prove beyond a reasonable doubt that Bryson intended to assault Kiser, but only that Dale suffered no harm. 0 45758 -0 -II intent to assault the intended victim, the defendant' s mens rea is transferred to any unintended victim. Elmi, 166 Wn.2d at 218. The State' s evidence established that Bryson intended to assault Kiser by spitting on him. Bryson spit at Kiser, the intended victim, and his saliva hit Kiser in the face. Bryson' s saliva also landed on Dale' s face, an unintended victim. When viewed in the light most favorable to the State, a rational trier of fact could find that an offensive touching occurred when Bryson' s saliva made contact with Dale' s face and he was harmed as a result. Because an offensive touching is an assault, sufficient evidence exists for a rational trial of fact to find beyond a reasonable doubt that Dale suffered harm from the spitting. II. INEFFECTIVE ASSISTANCE OF COUNSEL Bryson argues that he received ineffective assistance of counsel based on trial counsel' s failure to object to improper trial testimony by Green and Dale. Because Green' s and Dale' s testimony was correctly admitted, Bryson' s counsel was not ineffective for failing to object to it. A. Standard of Review We review ineffective assistance of counsel. claims de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To prove ineffective assistance of counsel, Bryson must show that 1) counsel' s performance . was reasonableness" and so deficient that it. " fell below that ( 2) the deficient performance prejudiced an objective him. standard of State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987) ( citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)). Failure to establish either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U. S. at 700. There is a strong presumption that defense counsel's performance was not deficient. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). To establish prejudice, Bryson must show a reasonable probability that the 5 45758 -0 -II deficient affected the performance the trial. outcome of Thomas, 109 Wn.2d at 226. Because Bryson bases his ineffective assistance of counsel claim on defense counsel' s failure to object, he that the must show objection would have likely succeeded. State v. Gerdts, 136 Wn. App. 720, 727, 150 P. 3d 627 ( 2007). Bryson Did Not Receive Ineffective Assistance of Counsel B. The Sixth Amendment to the United States Constitution and article I, section 21 of the Washington Constitution independent determination right to Wn. 2d right to a jury trial. State v. Elmore, 154 Wn. App. 885, The right to a jury trial includes the right to have the jury make an 897, 228 P. 3d 760 ( 2010). 2001). the guarantee of State v. Demery, 144 Wn.2d 753, 759, 30 P. 3d 1278 the facts. As such, opinion testimony on the guilt or veracity of the defendant generally violates the a at jury trial. 759. State v. Kirkman, 159 Wn.2d 918, 927, 155 P. 3d 125 ( 2007); Demery, 144 But a witness does not give improper opinion testimony merely because the testimony expresses an opinion as to an ultimate issue of fact that the jury must decide. Kirkman, 159 Wn.2d at will consider 929. " To determine whether statements are impermissible opinion testimony, a court the circumstances of specific nature of the other evidence testimony, ( 3) before the trier of a case, the nature of at the the type of witness involved, ( 2) the charges, ( 4) the type of defense, and ( 5) the State v. King, 167 Wn.2d 324, 332- 33, 219 P. 3d 642 fact."' 2009) ( quoting Kirkman, 159 Wn.2d including, `( 1) 928) ( internal punctuation omitted). Here, Green and Dale did not testify as to Bryson' s guilt. They provided testimony based on their observations of Bryson and his Bryson relied on a defense that he did not acts. intentionally spit at Kiser, but spit may have resulted from his trying to fix his dental appliance which pinched his lip. Bryson claimed if spit hit Kiser, it was accidental. Bryson also claimed that spit may have been the result of a chronic cough he had on the date of the incident even though RM 45758 -0 -II he did not remember coughing prior to or during the incident. Green and Dale did not testify as to whether Bryson intentionally assaulted Kiser. They opined whether, based on their observations, the spit could or could not have been consistent with Bryson' s versions. Green' s and Dale' s testimony did not express an opinion on Bryson' s guilt. See State v. Jones, 59 Wn. App. 744, 751, 801 P. 2d 263 ( 1990). Because Green' s and Dale' s testimony was not improper opinion testimony, Bryson has not demonstrated that Therefore, Bryson objection an cannot would have demonstrate that his succeeded. counsel' s Gerdts, 136 Wn. App. at 727. performance was deficient. His ineffective assistance of counsel claim fails. III. STATEMENT OF ADDITIONAL GROUNDS In his counsel, ( 2) statement of additional grounds ( prosecutorial misconduct, ( offender score, ( 5) he did SAG), Bryson asserts ( 1) ineffective assistance of 3) double jeopardy, ( 4) the trial court miscalculated his not receive requested copies of the verbatim report of proceedings, ( 6) the State failed to timely file an information, and ( 7) one of the State' s witnesses committed perjury. We hold that Bryson' s assertions lack merit. A. INEFFECTIVE ASSISTANCE OF COUNSEL Bryson asserts. that his trial counsel was ineffective for failing to present evidence of DNA analysis of the saliva on Kiser and Dale, as well as failure to present other evidence, including a drug store receipt and bank records. As discussed above, to prove ineffective assistance of counsel, Bryson must show that counsel's performance was deficient. and that the deficient performance prejudiced him. See Thomas, 109 Wn.2d at 226. Our scrutiny of counsel' s performance is highly deferential; we strongly presume reasonableness. State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 7 45758 -0 -II To rebut this presumption, Bryson bears the burden of establishing the absence of any 2011). legitimate trial tactic explaining counsel' s performance. Grier, 171 Wn.2d at 33. DNA Analysis 1. Bryson first asserts that his trial counsel was ineffective for failing to present DNA evidence of the saliva on Kiser and Dale. The record does not demonstrate that DNA evidence Therefore, whether or not his trial counsel could not have presented such evidence is existed. speculative and outside the Additionally, Bryson cannot ,demonstrate that his trial record. counsel' s performance was deficient for failing to obtain DNA evidence. Multiple witnesses were present during the incident and saw only Bryson spit. No other person spit during the incident; thus, DNA analysis would not have been useful to Bryson' s defense. Therefore, Bryson' s trial counsel' s performance was not deficient for failing to present or procure such evidence. 2. Failure to Present Other Evidence Bryson next asserts that his trial counsel was ineffective for failing to present other evidence on his behalf, including a drug store receipt and bank records. Bryson fails to demonstrate the relevance of this evidence, thus he fails to establish that his counsel' s performance was deficient for failing to present it. PROSECUTORIAL MISCONDUCT B. Bryson asserts. prosecutorial misconduct, but does not inform us of the nature and occurrence of the alleged errors, as required by RAP 10. 10( c). Bryson does not identify any specific reason why the prosecutor committed misconduct. His assertion of error is too vague to allow this court to identify the issue and we do not reach it. See State v. Thompson, 169 Wn. App. 436, 493, 290 P. 3d 996 ( 2012). 45758 -0 -II DOUBLE JEOPARDY C. Bryson asserts that the trial court violated his right to be free from double jeopardy under the Washington Constitution by imposing sentences under one cause number. two We disagree because the trial court imposed one sentence for two separate convictions that are not the same in law or fact. Double jeopardy violations are questions of law we review de novo. State v. Womac, 160 Wn.2d 643, 649, 160 P. 3d 40 ( 2007). twice v. for the same crime. The federal and state constitutions prohibit being punished U.S. CONST. amend. V; WASH. CONST. art. I, § 9; RAP 2. 5( a)( 3); State Freeman, 153 Wn.2d 765, 770- 71, 108 P. 3d 753 ( 2005). Multiple convictions whose sentences are served concurrently may still violate the Wn.2d 769, 774- 75, 888 P. 2d 155 ( 1995). rule against double jeopardy. State v. Calle, 125 Absent clear legislative intent to the contrary, two convictions constitute double jeopardy when the evidence required to support a conviction for one charge is also sufficient to support a conviction for the other charge, even if the more serious charge has additional elements. See Freeman, 153 Wn.2d at 777. Thus, two convictions constitute the same offense if they are the same in law and in fact. Calle, 125 Wn.2d at 777. If each conviction includes elements not included in the other, or requires proof of a fact that the other does not, the offenses are different. Calle, 125 Wn.2d at 777. Here, the trial court imposed one sentence under one cause number for two separate convictions: assault in the fourth degree and assault in the third degree. Therefore, his claim fails. To the extent that Bryson is actually asserting that the convictions constitute the same offense, his claim fails. Bryson' s convictions involve different victims which necessarily mean each conviction requires proof of a fact that the other does not. Thus, the offenses are different and the trial court did not violate Bryson' s right to be free from double jeopardy. 9 45758 -0 -II D. OFFENDER SCORE Bryson asserts that the trial court miscalculated his offender score and that the trial court should have imposed a standard range sentence of 17- 22 months.2 He asserts that several of his prior class C felony convictions washed out and should not have been included in his offender score. According to RCW 9. 94A. 525( 2)( c), a class C felony is counted in an offender score if the offender had not spent five consecutive years in the community since release from confinement for a felony Bryson was conviction without convicted of committing any assault crime in the third degree, that results a class C in a conviction. felony, on In this case, June 10, 1991. He obtained six misdemeanor convictions before he was convicted of bail jumping, a class C felony, on May 1997. 29, 1996. Bryson was then convicted of custodial assault, a class C felony on June 9, Since that conviction, but before the convictions in the instant case, Bryson obtained 19 misdemeanor convictions and two felony convictions between 1997 and 2013. No more than two years elapsed between any of the convictions. Because each of Bryson' s misdemeanors prevented washout, he did not spend five years in the community without being convicted of a crime; thus, the court properly used his class C felony convictions when it calculated his offender score. 2 Bryson also asserts that the judgment and sentence under cause number 94- 1- 00137- 2 is invalid. SAG at 1. However, this assertion is outside of the appellate record. On direct appeal, we do not address issues relying on facts outside the record. McFarland, 127 Wn.2d at 338 n.5. 10 45758 -0 -II COPIES OF VERBATIM REPORT OF PROCEEDINGS E. Bryson asserts that he did not receive requested copies of the verbatim report of proceedings of his bail hearing. A verbatim report of the bail hearing was not designated on appeal. The record demonstrates that a copy of the verbatim reports of proceedings that were designated on appeal was sent to Bryson on July 23, 2014. To the extent that Bryson argues facts outside of our record, we cannot consider the argument. McFarland, 127 Wn.2d at 338 n.5. CHARGES TIMELY FILED F. Bryson asserts that the State failed to timely file charges against him following his arrest. An accused " shall not be detained in jail or subjected to conditions of release for more than 72 hours" not unless an include any information part of or 1). indictment is filed. CrR 3. 2. 1( f)( "[ Saturdays, Sundays or holidays." 1). CrR 3. 2. 1( f)( T] he 72 hour period shall Although the record on appeal does not contain record of Bryson' s arrest or probable cause determination, trial testimony establishes that law enforcement officers arrested Bryson sometime around 12: 00 PM on Friday, July 5, 2013. July 9, 2013. G. RP at The State charged Bryson by information filed at 10: 50 AM on Tuesday, 28. The State filed charges within the required 72 hour period and Bryson' s claim fails. PERJURY Bryson asserts that Kiser falsely testified at trial that he was previously acquainted with Bryson because Bryon was on his case load. This assertion is unsupported by the record because Kiser did not testify as such. Nevertheless, to the extent that Bryson is challenging the credibility of Kiser, "[ c] redibility determinations are for the trier of fact and cannot be reviewed on appeal." Camarillo, 115 Wn.2d at 71. This claim fails. 11 45758 -0 -II We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. a Melnick, J. We concur: OWorsw Okol ick, J. atAJohanson, C. J. . 12

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