State Of Washington, Respondent V. Chase Harrison Devyver, Appellant (Majority)

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Filed Washington State Court of Appeals Division Two October 25, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 47547-2-II Respondent, v. CHASE HARRISON DEVYVER, UNPUBLISHED OPINION Appellant. MELNICK, J. — Chase Harrison Devyver appeals his convictions for felony murder in the second degree, assault in the second degree, both with a deadly weapon enhancement, and robbery in the first degree, with a firearm enhancement. Devyver was also convicted of attempt to elude a pursuing police vehicle. We conclude Devyver’s rights were not violated after two jurors saw him with security officers outside the courtroom, and the trial court did not abuse its discretion by denying Devyver’s motion for a mistrial. In addition, we conclude the trial court properly instructed the jury on voluntary intoxication and reasonable doubt, and correctly denied Devyver’s manslaughter instruction as a lesser included offense for felony murder in the second degree. We also conclude that Devyver did not receive ineffective assistance of counsel. Finally, we conclude Devyver’s SAG does not establish any error. We affirm. FACTS On the evening of January 18, 2014, a group of people including Devyver, his girlfriend Laura Reneer, Reneer’s housemate Margaret Braswell-Donoho, Shawn Woods, Caleb Roth, and Nick Lafont, gathered at Braswell-Donoho’s house to go out for the evening. Devyver began 47547-2-II staying at the house with Reneer approximately a month before hand. Devyver seemed upset about a misunderstanding from days before regarding a possible double date. Reneer assured Devyver she was not interested in being set up with another man but the topic came up several times throughout the evening. Braswell-Donoho and Roth were the designated drivers for the night. Everybody else took at least one shot of whiskey before leaving. They arrived at a bar around 9:30 P.M. and did not return to the house until after closing time, approximately 3:00 A.M. Devyver and Woods appeared intoxicated at the bar. According to several witnesses, Devyver was very intoxicated at the beginning of the night but became less so as the night progressed. Everyone but Roth and Lafont returned to the house. Upon returning to the house, Braswell-Donoho went to bed and Woods laid down on the couch in the living room. Woods intermittently got up so he could vomit. Devyver and Reneer helped Woods get back and forth from the couch to the bathroom. Shortly thereafter, Devyver approached Reneer from behind. She did not know if he was hugging her or what he was doing. Devyver wrapped his arm around her and stabbed her twice in the back. Reneer felt sharp pains in her back and started screaming. She told Devyver to stop, but he kept “escalating.” 3 Report of Proceedings (RP) at 178. Reneer heard Devyver say, “Why would you do this to me now.” 3 RP at 177. Woods got up from the couch to intervene. Reneer got away, and Devyver and Woods fought. Devyver stabbed Woods twice, once fatally in the heart. Devyver then ran around the house for a brief period of time, seemingly collecting items from the upstairs and the garage. During that time, Reneer and Woods remained on the floor near each other. Woods was not moving, but Reneer heard “gargling” noises. 3 RP at 184. Reneer saw Devyver washing 2 47547-2-II something in the sink. The items in his hand looked like “sharp metal objects, probably a knife.” 3 RP at 184. Devyver then returned to the living room, held a gun to Reneer’s forehead, and asked her where her wallet was. Reneer told him she did not know, and he hit her in the head with the gun. Devyver threatened to kill Reneer, saying that if he did not kill her, she would have time to call the police. She pleaded with him not kill her and told him to take her keys and “just leave.” 3 RP at 188. Devyver drove away in Reneer’s car. Reneer crawled up the stairs to find Braswell-Donoho. Reneer woke Braswell-Donoho, and they called the police. They went downstairs when the police arrived. Reneer then tried to walk back upstairs but fell. Her shirt was covered in blood. While responding to the scene in marked patrol vehicles, the police observed Devyver driving away. Two officers passed Reneer’s vehicle, driven by Devyver, and turned around to follow it. The officers activated their emergency lights, but Devyver did not stop. Devyver increased his speed immediately, and the officers activated their sirens. Devyver did not pull over for the police and proceeded to drive between 90 and 100 miles per hour down a stretch of road. He drove through three red lights. Devyver slowed to 75 miles per hour at a hill. The lead police vehicle initiated a PIT (pursuit intervention technique) maneuver1 to bring the chase to a stop. Devyver’s vehicle spun out, broke through a telephone pole, and rolled several times into a yard. The officers could see items flying out of the vehicle as it rolled. 1 A PIT maneuver is a method used to stop another moving vehicle. It is performed when one vehicle pulls up along the side of another vehicle and pushes the rear bumper of the vehicle to make it spin out. 3 47547-2-II The vehicle stopped with the passenger side on the ground. The officers approached the vehicle and could see Devyver trying to grab something from the floor. The officers had their weapons drawn and instructed Devyver to show his hands and come out of the vehicle with his hands in the air. Devyver pulled himself out of the car through the driver’s side window, got on top of the car, and climbed to the ground without assistance. When Devyver exited the car, he stated, “Shoot me, just f***ing shoot me.” Clerk’s Papers (CP) at 6. Devyver yelled at the officers to shoot him several times but kept his hands in the air. He did not respond to officer commands to get on the ground so officers tased him. The police arrested Devyver and took him to the hospital in an ambulance. The officers investigating the car crash scene found a firearm in the grass where the vehicle rolled over. Officers also recovered a hard-shelled gun case and another gun case. The gun was a Smith and Wesson nine millimeter semi-automatic pistol. Police also recovered two pocket knives with locking blades and a kitchen knife. Additionally, the police recovered Reneer’s wallet from the car. Reneer was taken to the hospital to receive medical attention. Reneer had two “puncture, stab wounds” in her back—one in her mid-back on top of her spine and one over her right scapula. 3 RP at 212. The wounds were approximately one half inch long and a quarter inch deep. They were both over bone. The trauma surgeon who tended to Reneer said there was no penetration into the chest cavity because the knife hit bone. The trauma surgeon saw no indication that Reneer had a head injury, stating, “She was awake and alert, oriented;” however, he acknowledged that she had a “laceration” to her head. 4 RP at 253. Photos were taken to document the head laceration. 4 47547-2-II I. THE TRIAL The State charged Devyver in a second amended information with one count of felony murder in the second degree with a deadly weapon enhancement involving Woods (count I), assault in the first degree with a deadly weapon enhancement involving Reneer (count II), robbery in the first degree, while armed with a deadly weapon or while causing bodily injury, with a firearm enhancement involving Reneer, (count III), and attempting to elude a pursuing police vehicle (count IV). The charging document specified that the predicate felony for the murder charge was “the crime of assault in the first degree, assault in the second degree, or assault in the third degree.” CP at 1. The State further alleged that Devyver and Reneer were part of the same household for the assault in the first degree charge.2 At trial, Devyver testified, but he did not refute any other witnesses’ testimony because he could not remember anything from that night between shortly after he arrived at the bar up until when the police tased him. Devyver previously worked as a medic in the army. He testified that “[a]t the right depth” the mid-spine area is a “particularly vulnerable area.” 7 RP at 688. He also stated, however, that the wound “wasn’t deep enough to even reach the spine.” 7 RP at 689. Devyver further testified that the top of the lung was in the area of the second wound but that the type of knife “wouldn’t actually make it all the way through the bone.” 7 RP at 689. Devyver stated that he owned a Smith and Wesson semi-automatic handgun. He also stated that one gun case the police recovered appeared to be one he owned and the other he was not certain about because there was nothing particularly identifiable about it. According to Devyver, he also usually carried a black pocket knife with a locking blade in his pocket. He did not confirm 2 RCW 9.94A.530, .533; RCW 10.99.020(3). 5 47547-2-II the knife in evidence was his, but he stated he owned a similar knife and could not remember exactly what brand it was because he had not seen it in a while. Reneer testified that she did not know guns well but that she knew Devyver owned a pistol. She also thought that the pistol in evidence looked similar to the one with which Devyver struck her. A Washington State Patrol Crime Laboratory employee tested the three knives found in the vehicle for blood. He found blood that matched Devyver’s “DNA[3] profile” on the knives. 5 RP at 389. On one knife, the sample showed the presence of both Devyver’s and Woods’s DNA. II. MISTRIAL MOTION The trial began at the end of March, 2015 and lasted 7 days. On the first day of testimony, when the court reconvened from lunch, Devyver made the court aware of an incident. While transporting Devyver back to the jail, two officers held Devyver in a small room connected to the lobby. Two jurors left the jury room and passed the small room. Devyver moved for a mistrial. The trial court and attorneys questioned the two officers. One stated that he watched the jury room door close and his partner then placed Devyver in handcuffs. That officer stood in the doorway to make sure the jurors were not coming out from the jury room and waited for the elevator. Two jurors exited the jury room and looked in the direction of the officers and Devyver. The officer closed the door and stood in front of the narrow window in the door before any other jurors left the jury room. The other officer stated he could not be certain but thought it very unlikely either of the two jurors could see the handcuffs. The jurors likely did see that two officers were standing with 3 Deoxyribonucleic acid. 6 47547-2-II Devyver. One of the jurors also stopped briefly to ask the officer who was outside the room whether they could go down the stairs. The trial court denied the motion for a mistrial. It stated, “[i]t sounds . . . like nobody saw the handcuffs, probably couldn’t physically be able to.” 3 RP at 133. Further, the trial court decided not to interview the jurors because it would draw attention to the incident. The court also stated, [F]or the record the two officers have been present every moment. I know the jurors have seen them in the courtroom. I don’t know what they think of that. They are not stupid. They usually pretty much figure out what’s going on given the nature of the charges and the fact that we have two uniformed officers present within pretty close proximity of your client. 3 RP at 133-34. III. JURY INSTRUCTIONS Devyver proposed an instruction on voluntary intoxication. The parties agreed to list the specific mens rea to which the instruction applied. When the State objected to including negligence in the list, Devyver agreed to exclude it. The instruction given read, “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of intoxication may be considered in determining whether the defendant acted with intent, knowledge, willfulness, and recklessness.” CP at 53. Devyver also proposed instructions on lesser included offenses. He proposed a manslaughter in the second degree lesser included instruction for felony murder in the second degree. He argued the instruction was proper because the State charged assault in the third degree as one of the possible predicate felonies for murder in the second degree. He also argued that if the State selected assault in the first or second degree, he would not be entitled to a manslaughter instruction. 7 47547-2-II The trial court declined to give the proposed lesser included instruction, finding that there was no legal basis for it. Devyver noted his objection. Devyver also proposed a theft in the third degree lesser included instruction for robbery in the first degree. The court asked for an explanation and Devyver argued it was because the robbery in the first degree statute included robbery in the second degree and theft in the third degree as lesser included offenses. Devyver did not provide factual support for the instruction. The court declined to give the instruction. IV. THE VERDICT The jury found Devyver guilty of felony murder in the second degree (count I), assault in the second degree (count II), robbery in the first degree (count III), and attempting to elude a police vehicle (count IV). The jury did not unanimously find that Devyver caused the death of Woods while committing assault in the first degree, but did unanimously find that he caused the death while committing assault in the second degree. Further, the jury found Devyver did not cause Woods’s death while committing assault in the third degree. The jury also returned special verdict forms. It found Devyver was armed with a deadly weapon, i.e., a knife, when he committed the crimes in counts I and II. It also found that Devyver and Reneer were “members of the same family or household” on count II, making the offense a domestic violence offense. CP at 37. Finally, it found that Devyver was armed with a firearm during the commission of count III, robbery in the first degree. Devyver appeals his convictions. 8 47547-2-II ANALYSIS I. SECURITY MEASURES AND RESTRAINTS Devyver argues security measures during his trial violated his rights to the presumption of innocence, to a fair trial by an impartial jury, and to equal protection before the law. We disagree. A. Legal Principles and Standard of Review The United States and Washington State Constitutions entitle every criminal defendant to a fair trial by an impartial jury. U.S. CONST. amends. VI, XIV, § 1; WASH. CONST. Art. I, §§ 3, 21, 22. The right to a fair trial includes the right to the presumption of innocence. State v. Gonzalez, 129 Wn. App. 895, 900, 120 P.3d 645 (2005). “The presumption of innocence guarantees every criminal defendant all ‘the physical indicia of innocence,’ including that of being ‘brought before the court with the appearance, dignity, and self-respect of a free and innocent man.’” Gonzalez, 129 Wn. App. at 901 (quoting State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999)). Central to the right to a fair trial is the principle that a defendant is “‘entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial,’” not “‘official suspicion, indictment, continued custody, or other circumstances’” short of proof. Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986) (quoting Taylor v. Kentucky, 436 U.S. 478, 485, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978)). It is the trial court’s constitutional duty “to shield the jury from routine security measures.” Gonzalez, 129 Wn. App. at 901. If necessary, a trial court has the discretion to grant a mistrial to remedy the inadvertent exposure of security measures. Gonzalez, 129 Wn. App. at 902. A trial court should grant a mistrial only if a defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be tried fairly. State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). We review a trial court’s denial of a mistrial for abuse of discretion, 9 47547-2-II and find abuse only ‘“when no reasonable judge would have reached the same conclusion.’” Emery, 174 Wn.2d at 765 (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). We review alleged violations of the right to an impartial jury and the presumption of innocence de novo. State v. Johnson, 125 Wn. App. 443, 457, 105 P.3d 85 (2005). Generally, we do not review unpreserved claims of error. RAP 2.5(a). However, a “manifest error affecting a constitutional right” is an exception to the rule. RAP 2.5(a)(3). To fit under this exception, the appellant must demonstrate that the error was “truly of constitutional dimension” and that the “error was manifest.” State v. Fehr, 185 Wn. App. 505, 511, 341 P.3d 363 (2015). The appellant must also show that “‘the alleged error actually affected’” his trial rights. Fehr, 185 Wn. App. at 511 (quoting State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011)). B. Presumption of Innocence & Impartial Jury Devyver argues the trial court violated his right to an impartial jury and the presumption of innocence. He relies on both the general presence of two security guards throughout his trial and the incident outside the courtroom during his transport to the jail. He contends that the error was a manifest error affecting a constitutional right and therefore, should be reviewed for the first time on appeal. We address Devyver’s argument in two parts: first, the general presence of security officers, and second, the incident outside the courtroom. Devyver’s argument regarding the general presence of officers in the courtroom is unsupported by the record. Devyver only cites the trial court’s statement after it denied the mistrial to support the presence of officers guarding Devyver during his trial. The statement was made after the first half day of trial. At that time, the court stated the two officers had been “present every moment” and “within pretty close proximity” 10 47547-2-II to Devyver. 3 RP at 133-34. The trial court’s statement does not establish what security measures were used, much less that the court utilized unreasonable security measures or failed to properly conceal necessary security measures from the jury over the course of a seven day trial. 4 See Gonzalez, 129 Wn. App. at 901. As to the incident outside the courtroom, Devyver moved for a mistrial in the trial court. Therefore, he is not raising the issue for the first time on appeal. As a result, RAP 2.5(a)(3) is inapplicable. Asserting an argument in constitutional terms does not change the applicable standard of review. State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013). Instead, we review whether Devyver’s right to an impartial jury and the presumption of innocence was violated de novo and whether the trial court abused its discretion by denying a mistrial motion. Johnson, 125 Wn. App. at 457; Emery, 174 Wn.2d at 765. Trial courts do not grant a mistrial every time a juror is inadvertently exposed to security measures utilized during a criminal trial. See Gonzalez, 129 Wn. App. at 902. For example, in State v. Mullin-Coston, an appellant analogized the jury hearing about him being in jail through witness testimony with the jury seeing a defendant shackled in court. 115 Wn. App. 679, 693-94, Devyver’s appellate briefs repeatedly use the trial court’s quote “every moment” when talking about security measures throughout the trial when it clearly only referenced the first half day. There is also nothing to support Devyver’s statement in his reply brief that, “Two uniformed officers remained ‘within pretty close proximity’ of Mr. Devyver during ‘every moment’ of the trial,” Reply Br. at 1 (quoting 3 RP at 133-34), and “some jurors saw these same two deputies guarding Mr. Devyver in a small room.” Reply Br. of Appellant at 1. These statements do not accurately portray what occurred or what the record reflects. The record is nonexistent as to the security measures actually being used after the first half day of trial. 4 11 47547-2-II 64 P.3d 40 (2003), aff’d, 152 Wn.2d 107, 95 P.3d 321 (2004). In weighing the potential prejudice, the court juxtaposed the general reality that jurors likely know persons awaiting trial “often do so in custody” with the implications of restraining a defendant in front of jurors while trial transpires. Mullin-Coston, 115 Wn. App. at 693. The court rejected the appellant’s analogy. Mullin-Coston, 115 Wn. App. at 694. The court in Mullin-Coston distinguished between the implications of a jury hearing about the custody status of a defendant through testimony and a jury seeing a defendant shackled. 115 Wn. App. at 693-94. The court reasoned that factors such as the seriousness of the crime and ability to pay bail go into whether a defendant is in custody, whereas, a jury is likely to assume from restraints during trial that the judge and court security are genuinely concerned that the defendant poses a threat. Mullin-Coston, 115 Wn. App. at 693-94. The court concluded that testimony referencing a defendant’s presence in jail did not violate his right to the presumption of innocence. Mullin-Coston, 115 Wn. App. at 694. Similarly here, courtroom restraints or security measures are not at issue. Two jurors may have become aware that Devyver was in custody after seeing the same officers in the courtroom with him outside the courtroom. The trial court remarked that the jurors may well have put it together that Devyver was in custody due to the nature of the charges and the officers. However, as in Mullin-Coston, the fact that the jurors may believe Devyver was in custody is not automatically a violation of Devyver’s right to an impartial jury or the presumption of innocence. We conclude the incident in the hallway did not violate his constitutional rights and was not so prejudicial that it warranted a mistrial. In Holbrook, the Court considered whether the presence of four state troopers in the first row of seats behind the defendants’ table violated the presumption of innocence. 475 U.S. at 562. The Court held that deployment of noticeable security personnel, “where justified by an essential 12 47547-2-II state interest specific to each trial” is not inherently prejudicial. Holbrook, 475 U.S. at 568-69. The case at hand is dissimilar from Holbrook because it does not involve courtroom security during trial. The jurors saw Devyver outside the courtroom with two security officers. There is no evidence to indicate what the security measures were utilized in the courtroom. And Devyver cites no authority for granting a mistrial every time there is some implication the defendant might be in custody. Devyver clarifies his position in his reply brief, arguing that when the jurors saw him with the same officers who had been in the courtroom, they realized the officers were there for him specifically, not just for courtroom security. However, the trial court heard testimony from the two officers and determined the jurors did not see restraints. It acknowledged that the jurors might reasonably presume that Devyver was in custody during the trial due to the seriousness of the crimes charged and the presence of the officers in the courtroom. The court denied the mistrial motion after hearing testimony from the two officers, which was subject to cross-examination. It issued a reasoned decision based on the adduced facts. The trial court did not abuse its discretion, and Devyver’s rights to an impartial jury and the presumption of innocence were not violated. C. Equal Protection In a related argument, Devyver appears to argue that his equal protection rights were violated by the general security measures employed by the trial court throughout trial and the incident outside the courtroom. As stated above, with the exception of moving for a mistrial, Devyver did not otherwise object to the security measures used during trial. There is no record to indicate improper security measures were used. Therefore, we solely consider whether the presence of security officers to transport Devyver to the jail violated Devyver’s equal protection rights. 13 47547-2-II First, Devyver fails to clearly identify a suspect class or any evidence of unequal treatment. Devyver seems to argue he was treated differently because as an indigent defendant he was kept in custody.5 Specifically, Devyver contends that if he could have afforded bail, he would not have been “tried under guard” and the jurors never would have seen him with officers outside the courtroom.6 Br. of Appellant at 13. The record supports neither contention. The argument is based on speculation. Indigence alone is not a suspect class. Harris v. McRae, 448 U.S. 297, 323, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980). The equal protection clause requires that persons similarly situated with respect to legitimate purposes of the laws receive like treatment. In re Pers. Restraint of Bratz, 101 Wn. App. 662, 668, 5 P.3d 759 (2000). It does not require that all persons be treated identically, but the distinction must have some relevance to the purpose for which the classification is made. Bratz, 101 Wn. App. at 668. Also, there is no record to show that Devyver was tried “under guard.” Br. of Appellant at 13. When Devyver moved for a mistrial, he did not argue an equal protection violation. Because he cannot prove error, he cannot establish a manifest constitutional error. RAP 2.5(a)(3). Therefore, the issue is not preserved for our review.7 RAP 2.5(a). 5 Devyver seems to be comparing indigent defendants to non-indigent defendants rather than incustody defendants to out-of-custody defendants. He provides no support that all pretrial detainees are indigent. It should also be noted that Devyver’s bail was set at $2,000,000; therefore, indigence may not have been the sole reason he remained in custody. 6 7 Devyver goes further to argue that even if we find no constitutional violation, we should review the issue by asserting “inherent supervisory power.” Br. of Appellant at 15. He argues we should exercise our discretion to prevent uniformed officers from guarding defendants “every moment,” except in the most extraordinary of cases. Br. of Appellant at 16. Again, the quote to the record is taken out of context. We decline to address the issue because the record does not warrant it. 14 47547-2-II II. JURY INSTRUCTIONS Devyver argues the trial court committed reversible error in its instruction to the jury. We disagree. A. Standard of Review “Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law.” State v. Irons, 101 Wn. App. 544, 549, 4 P.3d 174 (2000). “[J]ury instructions read as a whole must make the relevant legal standards manifestly apparent to the average juror.” State v. Marquez, 131 Wn. App. 566, 575, 127 P.3d 786 (2006). The proper standard of review to assess the instructions given depends on whether the trial court’s refusal to give a jury instruction was based on a matter of law or fact. State v. Walker, 136 Wn.2d 767, 771, 966 P.2d 883 (1998). Generally, we review jury instructions de novo. State v. Clausing, 147 Wn.2d 620, 62627, 56 P.3d 550 (2002). However, we review a trial court’s refusal to give an instruction based on the facts for abuse of discretion. State v. Walker, 136 Wn. 2d 767, 771-72, 966 P.2d 883 (1998). A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007). A trial court is under no obligation to give inaccurate or misleading instructions. State v. Ehrhardt, 167 Wn. App. 934, 939, 276 P.3d 332 (2012). “Because prejudice is presumed when an instruction misstates the law, a defendant is entitled to a new trial unless the error can be declared harmless beyond a reasonable doubt.” State v. Woods, 138 Wn. App. 191, 202, 156 P.3d 309 (2007). To show harmless error, the State must We also note that we do not possess the kind of “inherent supervisory power” suggested in Devyver’s brief. Br. of Appellant at 15; see RCW 2.06.010, .030. 15 47547-2-II prove that “[f]rom the record, it . . . appear[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002). B. Voluntary Intoxication Instruction Devyver argues that the voluntary intoxication instruction misstated the law and thus, violated his right to present a defense. Devyver argues this issue as constitutional error, specifically a due process violation, susceptible to review for the first time on appeal under RAP 2.5(a)(3). By doing so, Devyver “avoids one thicket only to become entangled in another.” State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999). Devyver’s counsel proposed the instruction. Nobody objected to it.8 While a jury instruction that misstates the law could be an error of constitutional magnitude, Marquez, 131 Wn. App. at 576, the voluntary intoxication instruction given by the trial court did not misstate the law. Devyver argues that the instruction improperly informed the jury that his acts “were not any less criminal as a result of his intoxication.” Br. of Appellant at 19. We disagree. The instruction stated, “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of intoxication may be considered in determining whether the defendant acted with intent, knowledge, willfulness, or recklessness.” CP at 53 (emphasis added). Devyver cites State v. Sao, 156 Wn. App. 67, 76, 230 The State contends that Devyver’s argument should be precluded by the invited error doctrine. The invited error doctrine prevents a party, under most circumstances, from appealing an error that he or she created. State v. Vander Houwen, 163 Wn.2d 25, 37, 177 P.3d 93 (2008). Devyver argues that we should review the issue because the instruction is a misstatement of the law and his counsel provided deficient representation by offering the instruction. While it is true that “[i]f instructional error is the result of ineffective assistance of counsel, the invited error doctrine does not preclude review,” State v. Kyllo, 166 Wn.2d 856, 861, 215 P.3d 177 (2009), that is not the circumstance here because there is no error. 8 16 47547-2-II P.3d 277 (2010), arguing that rather than stating “is less criminal,” Br. of Appellant at 19, the instruction should have stated, “is not justified or excused.” Br. of Appellant at 19 n.12. The WPIC on which the instruction is based, WPIC 18.10, relies on RCW 9A.16.090. That statute states, No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his or her condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his or her intoxication may be taken into consideration in determining such mental state. RCW 9A.16.090. This WPIC instruction has been upheld as a “correct statement of the law.” State v. Corwin, 32 Wn. App. 493, 498, 649 P.2d 119 (1982); see also State v. Coates, 107 Wn.2d 882, 891, 735 P.2d 64 (1987); State v. Hackett, 64 Wn. App. 780, 786-87, 827 P.2d 1013 (1992). In his reply brief, Devyver argues that Coates does not address the issue he raises. However, in Coates, the court examined the language “less criminal” and stated that the combination of that language with the second sentence of the instruction regarding requisite mental state indicates “how the statute is to be employed.” 107 Wn.2d at 889. The court stated, This means that such evidence cannot form the basis of an affirmative defense that essentially admits the crime but attempts to excuse or mitigate the actor’s criminality. Rather, evidence of voluntary intoxication is relevant to the trier of fact in determining in the first instance whether the defendant acted with a particular degree of mental culpability. Coates, 107 Wn.2d at 889. We conclude that the instruction did not misstate the law. Additionally, Devyver argues that he received ineffective assistance of counsel because his counsel proposed the voluntary intoxication instruction, which was erroneous and “negated the defense theory” of the case. Br. of Appellant at 21. Devyver also argues there is a reasonable probability the jury would have convicted him of a lesser offense if it had been properly instructed. To prevail on an ineffective assistance of counsel claim an appellant must establish (1) that defense 17 47547-2-II counsel’s performance was deficient, falling below an objective standard of reasonableness, and (2) that defense counsel’s deficient performance prejudiced the appellant. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009) (applying Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Failure to establish either prong is fatal to an ineffective assistance of counsel claim. State v. McLean, 178 Wn. App. 236, 246, 313 P.3d 1181 (2013), review denied, 179 Wn.2d 1026 (2014). Here, counsel’s performance was not deficient because the instruction proposed by defense counsel was not erroneous and was entirely in line with the defense theory of the case. Devyver testified that he did not remember any of the events of the night because of alcohol consumption. Furthermore, Devyver cannot establish prejudice because a substantial amount of evidence showed Devyver had become much less intoxicated as the evening progressed, and that he did not appear drunk back at the residence. Additionally, the instruction did not misstate the law. Credibility determinations are for the trier of fact and we defer to the trier of fact on issues of conflicting testimony, credibility of witness, and persuasiveness of the evidence. State v. Rafay, 168 Wn. App. 734, 843, 285 P.3d 83 (2012). We conclude Devyver’s ineffective assistance of counsel argument fails. Because the instruction accurately stated the law, there is no error, constitutional or otherwise. The issue has not been preserved for review. RAP 2.5(a)(3). C. Reasonable Doubt Instruction Devyver next argues that the trial court improperly instructed the jury on reasonable doubt. Specifically, he contends the language “‘an abiding belief in the truth of the charge,’” misinformed the jury because it instructed the jury to search for the truth. Br. of Appellant at 47 (quoting CP at 49). He does not challenge the “abiding belief” language, only “the truth of the charge” language. 18 47547-2-II Br. of Appellant at 47 n.37. Devyver did not object to the instruction. However, his asserted error implicates a constitutional interest. See State v. Kalebaugh, 183 Wn.2d 578, 582, 584, 355 P.3d 253 (2015). We recently considered the same issue in State v. Jenson, 194 Wn. App. 900, 378 P.3d 270 (2016), and upheld the instruction. Other cases are in accord. State v. Lizarraga, 191 Wn. App. 530, 567, 364 P.3d 810 (2015), review denied, 185 Wn.2d 1022; State v. Kinzle, 181 Wn. App. 774, 784, 326 P.3d 870, review denied, 181 Wn.2d 1019 (2014); State v. Fedorov, 181 Wn. App. 187, 200, 324 P.3d 784, review denied, 181 Wn.2d 1009 (2014). The trial court did not err. D. Manslaughter Lesser Included Offense Instruction Devyver also argues that the trial court erred by declining to instruct the jury on manslaughter in the second degree as a lesser included offense to felony murder in the second degree where assault in the second degree was the predicate felony. Here again Devyver presents the issue as one of constitutional error, to be reviewed de novo.9 9 Devyver asks us to apply the test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 74 L. Ed. 2d 18 (1976), to reach the conclusion that his constitutional rights were violated and relies on a State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), analysis. Because of our resolution of the issue above, we do not address these arguments. 19 47547-2-II Devyver proposed the instruction, but only if assault in the third degree was the predicate felony. Devyver emphasized this point in a colloquy with the trial court. Therefore, Devyver is asking that we review an issue the trial court never addressed.10 Devyver also argues that we should review the court’s failure to give a lesser included instruction as a violation of his procedural due process rights. First, Devyver was not entitled to the instruction. Second, he acknowledges that the rule is only applicable in capital cases but argues it should be extended to noncapital cases. We follow case precedent and directly controlling law. That precedent does not state that a criminal defendant is entitled to a lesser included offense he did not ask for in all circumstances. See State v. Tamalini, 134 Wn.2d 725, 730-31, 953 P.2d 450 (1998). We decline to decide constitutional issues where alternate grounds exist. Citizens’ All. for Prop. Rights v. Sims, 145 Wn. App. 649, 656, 187 P.3d 786 (2008). Here, the court was not asked to give the instruction. Therefore, we do not reach the issue of whether Devyver’s due process rights were violated. However, because Devyver also makes an ineffective assistance of counsel claim related to this issue, we must conduct some review of whether Devyver was entitled to the instruction to determine whether Devyver received ineffective assistance of counsel. Because “[a] defendant cannot claim that the trial court erred in refusing an instruction he did not offer unless the failure to so instruct is violative of a constitutional right,” we review this claim as an ineffective assistance of counsel claim. Tamalini, 134 Wn.2d at 730-31. Devyver also argues that we should not let defense counsel’s “concession as to the law” prevent review. Br. of Appellant at 34. He quotes Worden v. Smith, 178 Wn. App. 309, 327, 314 P.3d 1125 (2013), stating, “it is error for a court to treat parties’ stipulations to law as binding.” Br. of Appellant at 34. This quote is taken out of context and does not apply to this circumstance where the court asked for clarification on what instruction defense counsel proposed and defense counsel answered. 10 20 47547-2-II To demonstrate prejudice on an ineffective assistance of counsel claim, an appellant must show a reasonable probability that but for counsel’s performance, the outcome would have differed. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Devyver cannot meet this burden because he was not entitled to an instruction on manslaughter in the second degree as a lesser included offense of the offense charged. “The right to a lesser included offense instruction is statutory, codified at RCW 10.61.006.” State v. Condon, 182 Wn.2d 307, 316, 343 P.3d 357 (2015). A defendant is entitled to an instruction on a lesser included offense if two conditions are met: (1) each of the elements of the lesser offense must be a necessary element of the offense charged and (2) the evidence in the case must support an inference that the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The first prong is often referred to as the legal prong and the second as the factual prong. State v. Gamble, 154 Wn.2d 457, 463, 114 P.3d 646 (2005). To satisfy the factual prong, the evidence must raise an inference that only the lesser included offense was committed to the exclusion of the charged offense. State v. FernandezMedina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000). More specifically, a requested jury instruction on a lesser included offense should be given “[i]f the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater.” State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997). Devyver argues that the evidence, supports an inference that he committed only manslaughter in the second degree. He contends that the facts show he killed Woods in an “alcoholic blackout.” Br. of Appellant at 32. Such a state does not necessarily mean a person acted without intent. Further, voluntary intoxication does not negate criminal negligence. Manslaughter in the second degree requires proof that the defendant, with criminal negligence, 21 47547-2-II caused the death of another person. RCW 9A.32.070. Devyver points only to his drunkenness to support his argument. He cites to no other evidence in the record to indicate he acted with negligence. We decline to “comb the record” to find the support Devyver fails to provide for the assertion. RAP 10.3(6); State v. Wise, 176 Wn.2d 1, 12-13, 288 P.3d 1113 (2012). We conclude Devyver has not satisfied the factual prong because it is insufficiently briefed, and moreover, Devyver has failed to show that a jury could find him guilty of manslaughter in the second degree to the exclusion of felony murder in the second degree on this record. Addressing the legal prong, the State charged Devyver with murder in the second degree, with assault in either the first, second, or third degree as the predicate felony. Below, Devyver concurred with the trial court that manslaughter was not a lesser included offense to felony murder if the predicate offense was assault in the first or second degree. Devyver now retreats from that position and argues that a conviction for murder in the second degree based on a death occurring through assault in the second degree with a deadly weapon, under RCW 9A.36.021(1)(c), “necessarily establishes the elements of [manslaughter in the second degree].” Br. of Appellant at 28. We disagree. Washington courts have repeatedly held that manslaughter is not a lesser included offense for felony murder in the second degree, predicated on assault in the first and second degree, because felony murder lacks a specific mens rea. Bowman v. State, 162 Wn.2d 325, 334-35, 172 P.3d 681 (2007); Tamalini, 134 Wn.2d at 729-30; see also State v. Berlin, 133 Wn.2d 541, 550, 947 P.2d 700 (1997); State v. Davis, 121 Wn.2d 1, 6, 846 P.2d 527 (1993), abrogated on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997); State v. Dennison, 115 Wn.2d 609, 626-27, 801 P.2d 193 (1990). However, Devyver argues that Gamble alters this precedent. 22 47547-2-II Gamble, 154 Wn.2d 457, may impact how we review the issue, but it did not overrule the line of cases preceding it. In Gamble, the court considered whether manslaughter in the first degree could be a lesser included offense for felony murder in the second degree when assault in the second degree, under the “recklessly inflict[s] substantial bodily harm” prong, was the predicate offense. 154 Wn.2d at 467. The court held that manslaughter was not a lesser included offense of murder in the second degree under that specific charge. Gamble, 154 Wn.2d at 469. In reaching this holding, the court reasoned that although it is important to examine the elements of the offense the State actually charged, it also is essential that the court “give due regard to [the elements] necessary relational nature.” Gamble, 154 Wn.2d at 467. The court held that felony murder predicated on assault by recklessly inflicting substantial bodily harm, did not contemplate a risk of homicide and therefore, was “unamenable to a lesser included offense instruction on the offense of manslaughter.” Gamble, 154 Wn.2d at 468. Here, the State in relevant part to this analysis, charged Devyver with felony murder in the second degree with assault in the second degree as the predicate offense. The State alleged two prongs under the assault in the second degree statute: intentional assault of another thereby recklessly inflicting substantial bodily harm and intentional assault of another with a deadly weapon. We need not repeat the analysis from Gamble on the former prong because nothing has changed. Therefore, we only address the assault with a deadly weapon prong. Devyver argues that assault with a deadly weapon “necessarily” means the defendant knew and disregarded a substantial risk that a homicide might occur. Br. of Appellant at 28. We disagree. 23 47547-2-II The elements of assault in the second degree, as charged here, include: “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). The elements of manslaughter in the second degree are “with criminal negligence” that person “causes the death of another person.” RCW 9A.32.070(1). The mental state required to prove felony murder predicated on assault with a deadly weapon is different from the mental state required to prove manslaughter. We do not compare mental state elements in isolation; rather, we examine mental states as they necessarily relate to the defendant’s acts. Gamble, 154 Wn.2d at 467. Here, the requisite mental state of assault with a deadly weapon does not require the State to prove Devyver caused the death of another person with a criminally negligent state of mind as is required for manslaughter. RCW 9A.32.070(1). “A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.” RCW 9A.08.010(1)(d). In the context of manslaughter, the “wrongful act” caused by a defendant’s actions is homicide. State v. Henderson, 182 Wn.2d 734, 744, 344 P.3d 1207 (2015); Gamble, 154 Wn.2d at 467. To obtain a manslaughter conviction, the State must prove that the defendant (1) knew of and disregarded a substantial risk that a death may occur or (2) failed to be aware of a substantial risk that a death may occur. RCW 9A.32.060(1)(a); RCW 9A.32.070(1). On the contrary, to obtain a felony murder conviction, the State here was required to prove that the defendant assaulted another with a deadly weapon. RCW 9A.36.021(1)(c). Significantly, assault in the second degree as charged here does not contemplate a risk of death. Manslaughter does. In fact, the felony 24 47547-2-II murder in Devyver’s case did not require the State to prove any mental element as to the resulting death itself. On the other hand, manslaughter requires proof of a mental element vis-à-vis the resulting death. See Gamble, 154 Wn.2d at 468–69. Assault with a deadly weapon does not “necessarily” mean the defendant acted with criminal negligence that resulted in death. Instead, it means that the defendant intentionally acted in a way likely to cause substantial bodily harm. The offense becomes felony murder because in the course of and in furtherance of committing the felony, the defendant caused the death of another. As in Gamble, the felony murder as charged, did not contemplate the risk of a homicide. Manslaughter in the second degree is not a lesser included offense to murder in the second degree with the relevant predicate felonies charged in this case. Furthermore, there was overwhelming evidence to support Devyver’s conviction and he provides no argument to suggest the outcome of his trial would have differed with a lesser included offense instruction. Additionally, while his counsel may not have argued that Gamble encouraged a case by case approach, this inaction by itself does not establish conduct falling below an objectively reasonable standard. An attorney need not advance every argument, regardless of merit, In re Pers. Restraint of Frampton, 45 Wn. App. 554, 562 n.8, 726 P.2d 486 (1986), nor must an attorney pursue strategies that appear unlikely to succeed. State v. Brown, 159 Wn. App. 366, 371, 245 P.3d 776 (2011). Moreover, Devyver’s counsel was correct in stating that he was not entitled to the instruction. Counsel’s conduct cannot be said to be deficient. Here, Devyver was not entitled to the instruction, his counsel did propose and argue the instruction on other grounds, and his counsel otherwise advocated for Devyver throughout his trial. It cannot be said that the jury was improperly instructed or that Devyver received ineffective assistance of counsel. 25 47547-2-II III. STATEMENT OF ADDITIONAL GROUNDS In Devyver’s SAG, he asserts (1) that he did not receive sufficient trial transcripts and (2) that the trial court improperly instructed the jury. He also asserts (3) that insufficient evidence supported his assault in the second degree conviction against Reneer and (4) that he should not have been charged with robbery in the first degree and a deadly weapon enhancement, and in the alternative, that the deadly weapon enhancement was not supported by sufficient evidence. Finally he argues (5) that he received ineffective assistance of counsel because his counsel did not argue he lacked the requisite criminal intent. A. Trial Transcripts Devyver asserts that “[j]ury instructions, opening statements from the [S]tate, and opening statements from defense counsel have not been transcribed in the trial transcripts. Without these sections I have no way to check for prosecutorial misconduct, ineffective assistance of counsel from defense, or procedural misconduct from the court.” SAG at 1. While it is true that the court’s oral reading of the jury instructions and opening statements are not transcribed, Devyver does not actually assert an issue from which we can grant relief. The onus is on the party seeking review to arrange for transcription within 30 days of filing the notice of appeal. RAP 9.2(a). The party seeking review “should arrange for the transcription of all those portions of the verbatim report of proceedings [RPs] necessary to present the issues raised on review.” RAP 9.2(b). If the RP is provided at public expense it does not include opening statements unless ordered by the trial court. RAP 9.2(b). The rule also states, “If the party seeking review intends to urge that the court erred in giving or failing to give an instruction, the party should include in the record all of the instructions given, the relevant instructions proposed, the party’s objections to the instructions given, and the court’s ruling on the objections.” RAP 9.2(b). 26 47547-2-II The RAP rule regarding SAGs states, “If within 30 days after service of the brief prepared by defendant’s counsel, defendant requests a copy of the [RPs] from defendant’s counsel, counsel should promptly serve a copy of the [RPs] on the defendant and should file in the appellate court proof of such service.” RAP 10.10(e). The trial court found Devyver to be indigent and there does not appear to be a special order to include opening statements. Furthermore, despite not including the court’s oral reading of the instructions, the record does include the instructions given, the instructions proposed, the party’s objections, and the court’s rulings. Additionally, Devyver is not making an ineffective assistance of counsel argument, he is merely asserting that he may have been prejudiced. As such, we do not consider the issue because it is based on facts outside the record. State v. Lough, 70 Wn. App. 302, 335, 853 P.2d 920 (1993), aff’d, 125 Wn.2d 847, 889 P.2d 487 (1995). B. Jury Instructions 1. Voluntary Intoxication Instruction Devyver asserts that the voluntary intoxication jury instruction included erroneous mental state language because it listed possible mental states but excluded “criminal negligence” from the list. SAG at 1. This issue is not preserved for review. The instruction stated, “[E]vidence of intoxication may be considered in determining whether the defendant acted with intent, knowledge, willfulness, and recklessness.” CP at 53. As stated above, Devyver proposed the instruction and did not object to its form at trial. Therefore, Devyver must show that the instruction was a manifest error affecting a constitutional right to warrant review. RAP 2.5(a)(3). Devyver cannot do so because the instruction was proper. “A person is criminally negligent or acts with criminal negligence when he . . . fails to be aware of a substantial risk that a wrongful act may occur and his . . . failure to be aware of such 27 47547-2-II substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.” RCW 9A.08.010(1)(d). Courts have previously held that “[b]ecause this mental state is based on a reasonable person standard, evidence of defendant’s voluntary intoxication can not work in any way to negate or obviate the mental state.” Coates, 107 Wn.2d at 892. The trial court does not err where it declines to instruct the jury from considering voluntary intoxication as a defense to a crime requiring criminal negligence as the mental state. See Coates, 107 Wn.2d at 893. A trial court is under no obligation to give inaccurate or misleading instructions. Ehrhardt, 167 Wn. App. at 939. The court did not err. 2. Lesser Included Offense Instructions Devyver asserts the trial court erred by declining to instruct the jury on manslaughter in the second degree as a lesser included offense to murder in the second degree, and by declining to instruct the jury on theft in the third degree as a lesser included offense to robbery. We disagree. a. Manslaughter in the Second Degree Devyver asserts that the trial court erred by declining to instruct the jury on manslaughter in the second degree as a lesser included offense. The issue is addressed above and Devyver does not make any new arguments. The trial court did not err because the manslaughter in the second degree instruction fails the factual and legal prongs of the Workman test in this case. b. Theft in the Third Degree Devyver also asserts the trial court err by declining to give a theft in the third degree lesser included instruction for robbery in the first degree. Because it is not enough that the jury might disbelieve the evidence pointing to guilt, the evidence must affirmatively establish the defendant’s theory of the case, Devyver’s claim fails. Fernandez-Medina, 141 Wn.2d at 456. 28 47547-2-II Theft in the third degree satisfies the legal prong of the Workman test in this case. A person is guilty of theft in the third degree if he commits theft of property that does not exceed seven hundred fifty dollars in value. RCW 9A.56.050(1). One element of the robbery in the first degree charge was that Devyver “intended to commit theft of the property.” CP at 76. Each element of theft in the third degree is a necessary element of the robbery charge. Workman, 90 Wn.2d at 44748. However, theft in the third degree cannot satisfy the factual prong in this case. The second prong, the factual test, includes a requirement that there be a factual showing more particularized than that required for other jury instructions. Fernandez-Medina, 141 Wn.2d at 455. The evidence must raise an inference that only the lesser included offense was committed to the exclusion of the charged offense. Fernandez-Medina, 141 Wn.2d at 455. More specifically, a requested jury instruction on a lesser included offense should be administered “[i]f the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater.” Warden, 133 Wn.2d at 563. Defense counsel did not provide any factual support for giving the instruction below and there appears to be none. Even construed in the light most favorable to Devyver, as the moving party, the jury heard testimony that at the time Devyver began trying to leave the house, running around seemingly collecting items, Reneer had been stabbed, Woods had gotten between her and Devyver, and Woods was lying on the ground near her with a stab wound to his chest. Then, Devyver returned to Reneer holding a gun. He held the gun to her forehead and told her to give him her wallet. Reneer testified that Devyver hit her in the head with the gun and photos of a laceration to her head taken at the hospital were admitted. Reneer also testified that Devyver threatened to kill her while holding the gun to her head. She pleaded with him not to kill her and told him to take 29 47547-2-II her car keys and “just leave.” 3RP at 188. He then drove off in her car and police later recovered Reneer’s wallet inside the overturned car. Devyver did not refute any of the testimony because he testified that he did not remember anything from that night from shortly after arriving at the bar until he was tased and placed in an ambulance. Moreover, Devyver cannot demonstrate any prejudice from the instructions because the jury was provided instructions for both the offense charged, robbery in the first degree and the lesser included offense of robbery in the second degree. The jury found Devyver guilty of the greater offense and returned a special verdict that he was armed with a firearm. The jury could have found that Devyver simply took property from Reneer against her will by force or fear; however, it found that Devyver committed robbery in the first degree when he took property from Reneer while armed with a deadly weapon. Thus, Devyver cannot show prejudice. See, e.g., State v. Guilliot, 106 Wn. App. 355, 368-69, 22 P.3d 1266 (2001). C. Sufficiency of the Evidence Devyver argues his conviction for assault in the second degree against Reneer was not supported by sufficient evidence. We disagree. 1. Standard of Review We review the sufficiency of the evidence supporting a criminal conviction, in the light most favorable to the State. Ehrhardt, 167 Wn. App. at 943. We ask “‘whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.’” State v. Drum, 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010) (quoting State v. Wentz, 149 Wn.2d 342, 347, 68 P.3d 282 (2003)). By challenging sufficiency, an appellant “admits the truth of the State’s evidence and all reasonable inferences therefrom.” Ehrhardt, 167 Wn. App. at 943. 30 47547-2-II We accord the same weight to direct and circumstantial evidence. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). A jury may properly infer the mental element of an offense “from the conduct where it is plainly indicated as a matter of logical probability.” State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). 2. Assault in the Second Degree Devyver asserts there was “no forensic evidence” of assault. SAG at 3. Specifically, he contends that Reneer’s DNA was not on any weapon, that her wounds were superficial, and that the only evidence supporting a higher degree was the testimony that “if the knife would’ve gone deeper,” it would have caused more harm. SAG at 3. To prove assault in the second degree, the State needed to prove beyond a reasonable doubt that Devyver intentionally assaulted Reneer, with a deadly weapon, recklessly inflicting substantial bodily harm, in the State of Washington. RCW 9A.36.021. The jury was instructed that assault “is an intentional cutting of another person, with unlawful force, that is harmful or offensive.” CP at 61. The jury was also instructed that “[s]ubstantial bodily harm means bodily injury that involves a temporary but substantial disfigurement, or that causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or that causes a fracture of any bodily part.” CP at 64. Reneer testified that Devyver came up behind her and she did not know if he was hugging her or what he was doing. She then felt sharp pains in her back and started screaming. She told Devyver to stop but he kept “escalating” and she felt him stabbing her. 3 RP at 178. She had two puncture stab wounds in her back—one in her mid-back on top of her spine and one over her right scapula. The wounds were approximately half an inch long and a quarter of an inch deep. They were both over bone. Reneer crawled up the stairs of the house to find Braswell-Donoho. She 31 47547-2-II and Braswell-Donoho came downstairs when the police arrived and Braswell-Donoho testified that Reneer, whose shirt was covered in blood, then tried to walk back up the stairs and fell. Reneer was taken to the hospital to receive treatment and the wounds were stapled closed. The trauma surgeon that saw Reneer at the hospital testified that there was no penetration to the chest cavity because the knife “hit the bone.” 4 RP at 247. Reneer testified that Devyver was washing somethings in the sink after stabbing Woods and that the items in his hand looked like “sharp metal objects, probably a knife.” 3 RP at 184. Devyver himself testified there were particularly essential body parts underneath the bone in the two places Reneer was stabbed. The State called an employee from the Washington State Patrol Crime Laboratory who had tested the three knives found in the vehicle for blood. The witness stated he found blood that matched Devyver’s DNA profile on the knives. He also stated on one knife the sample indicated both Devyver’s and Woods’s DNA was present. Devyver is correct that the evidence did not prove Reneer’s blood was on the knives. However, there was significant other circumstantial evidence. Viewing the evidence in the light most favorable to the State, there was sufficient evidence for a jury to find Devyver guilty of assault in the second degree. D. Firearm Enhancement 1. Improper Enhancement Devyver argues that the trial court erred by applying a firearm enhancement to a charge of robbery in the first degree because the only difference between robbery in the first degree and robbery in the second degree is the use of a weapon. We disagree. Washington case law does not support Devyver’s argument. A firearm deadly weapon finding may be used for two purposes, an element and an enhancement. State v. Harris, 102 32 47547-2-II Wn.2d 148, 158-61, 685 P.2d 584 (1984), overruled on other grounds by State v. McKinsey, 116 Wn.2d 911, 810 P.2d 907 (1991); State v. Harvey, 34 Wn. App. 737, 741, 664 P.2d 1281 (1983); State v. Woods, 34 Wn. App. 750, 754-55, 665 P.2d 895 (1983); State v. Willoughby, 29 Wn. App. 828, 834, 630 P.2d 1387 (1981). We follow that precedent. 2. Sufficiency of the Evidence Devyver also asserts that if the enhancement was proper, it was not supported by sufficient evidence. He contends there was a lack of forensic evidence and no positive identification of the gun. We disagree. To prove the enhancement, the State needed to prove beyond a reasonable doubt that Devyver was armed with a firearm at the time he committed robbery in the first degree. Reneer testified that Devyver held a gun to her forehead and told her to give him her wallet. Reneer also testified that he hit her in the head with the gun and photos of a laceration to her head taken at the hospital were admitted at trial. Although the trauma surgeon who saw Reneer testified she did not have a head injury, stating, “She was awake and alert, oriented,” he also acknowledged that she had “a laceration” to her head. 4 RP at 253. Reneer further testified that Devyver threatened to kill her, and that she pleaded with him to not kill her and told him to take her car keys and “just leave.” 3 RP at 188. The officers at the scene of the car crash found a firearm in the grass where the vehicle rolled over. Officers also recovered a hard-shelled gun case and another gun case at the scene of the crash. Inside one of the gun cases was a Smith and Wesson nine millimeter semi-automatic pistol. Reneer testified that she did not know guns well but that she knew Devyver owned a pistol. She also stated that the pistol in evidence looked similar to the one Devyver struck her with. Devyver testified that he owned a Smith and Wesson semi-automatic handgun. He also stated that 33 47547-2-II one case recovered appeared to be one he owned and that he was not certain about the other because there was nothing particularly identifiable about it. Viewing the evidence in the light most favorable to the State, there was sufficient evidence for the jury to return a special verdict finding Devyver was armed with a firearm. E. Ineffective Assistance of Counsel Devyver asserts that he received ineffective assistance of counsel because his attorney failed to argue Devyver lacked the requisite criminal intent. We disagree. During closing argument, Devyver’s counsel introduced the voluntary intoxication instruction. Counsel quoted the instruction and explained that it was something the jury could consider when assessing intent. Counsel proceeded to identify specific testimony that indicated Devyver was highly intoxicated throughout the evening, including witnesses at the bar, Reneer’s testimony, testimony of an officer after the car crash, and the toxicologist. Counsel stated several times that the jury could look at Devyver’s intoxication when determining intent to commit the acts later that night, specifically referencing robbery and eluding. He stated, “There is, because of the circumstances, the alcohol involved and the nature of the injuries, the nature of what happened, there’s a reasonable doubt that [Devyver] had any intent as to any of these crimes.” 7 RP at 768. The record does not support Devyver’s argument. Counsel’s conduct did not fall below a reasonable standard, and thus, Devyver cannot establish his ineffective assistance of counsel claim. Devyver has also filed a supplemental brief requesting that we waive appellate costs under State v. Sinclair, 192 Wn. App. 380, 389-90, 367 P.3d 612, review denied, 185 Wn.2d 1034 (2016). He argues that the trial court found him indigent and his status is unlikely to change. We will give 34 47547-2-II a party the benefit of an order of indigency unless a trial court finds otherwise. RAP 15.2(f). We waive appellate costs. We affirm Devyver’s conviction. 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. Melnick, J. We concur: Lee, P.J. Sutton, J. 35

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