                                                                                                                     T Cir APPEALS
                                                        jl'
      IN THE COURT OF APPEALS OF THE STATE OF WASHING!(
                                                                                                           2015 JUL - 7 AM 8' 44
                                                        DIVISION II
                                                                                                         S.          01   1 ASE
 STATE OF WASHINGTON,                                                                       No. 45758 -0 -II
                                                                                                         By -
                                                                                                                     0E     TY
                                           Respondent,


            V.




RODNEY BRYSON,                                                                        UNPUBLISHED OPINION


                                           Appellant.


           MELNICK, J. —        Rodney Bryson appeals his convictions for assault in the third degree and

assault     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
                        1)   ineffective                                        2)   prosecutorial   misconduct, (   3)   double
further     asserts (                       assistance       of counsel, (



                                                          his   offender score, (     5) he did not receive requested copies
jeopardy, (4)      the trial   court miscalculated




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 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                             and   took him into custody.       Officer Ronald


Morella      and   Sergeant Keith Dale        arrived     to    assist.
45758 -0 -II



         The   officers   led Bryson to    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:
           STATE]:...        Were you looking at [ Bryson] when the spit happened?

           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:




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               STATE]:...            Was he ...         coughing ...       like this was some sort of involuntary
            expectoration?

               DALE] : No, he wasn' t.
               STATE]:... [         W] ere you looking at [ Bryson' s] face when he did it?
               DALE]:        Pretty much, yes.
               STATE]:        All right. Did this look like something that was intentional?
               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       attempted      to   fix it.   Bryson claimed that he did not intentionally spit at Kiser, but if his

saliva     did land      on   Kiser     or   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)       at   138 ( Instr. 10).    The trial court additionally instructed the jury, without

objection,        that "[    i] f a person acts with intent to assault another, but the act harms a third person,

the   actor      is   also   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.




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                                                                ANALYSIS


I.         SUFFICIENCY OF THE EVIDENCE


           Bryson argues that the transferred intent doctrine did not apply because Dale " did not suffer
                                                    1                                                                         We
 physical       injury'   or `   bodily   harm."'        Br.   of   Appellant   at   11 ( quoting RCW 9A. 04. 110( 4)( a)).


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.

           A.         Standard of Review


               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       doubt."      State    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."           Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence

are    equally     reliable.      State   v.   Delmarter, 94 Wn. 2d 634, 638, 618 P. 2d 99 ( 1980). "                 Credibility

determinations        are   for the trier      of fact and cannot        be   reviewed on appeal."       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.     RCW 9A.36. 031,.              041; State v. Humphries, 21 Wn. App. 405, 409, 586 P. 2d 130

     1978)..    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.

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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           so    deficient that it. " fell below       an objective   standard of


reasonableness"         and   that ( 2) the deficient     performance     prejudiced     him.   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




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45758 -0 -II



deficient     performance            affected the          outcome of            the trial.         Thomas, 109 Wn.2d        at   226.   Because


Bryson bases his ineffective assistance of counsel claim on defense counsel' s failure to object, he

must show          that the       objection would            have     likely       succeeded.            State v. Gerdts, 136 Wn. App. 720,

727, 150 P. 3d 627 ( 2007).


             B.          Bryson Did Not Receive Ineffective Assistance of Counsel

             The Sixth Amendment to the United States Constitution and article I, section 21 of the

Washington Constitution                   guarantee         the   right     to   a      jury   trial.    State v. Elmore, 154 Wn. App. 885,

897, 228 P. 3d 760 ( 2010).                        The right to a jury trial includes the right to have the jury make an

independent determination                      of    the facts.       State v. Demery, 144 Wn.2d 753, 759, 30 P. 3d 1278

 2001).       As such, opinion testimony on the guilt or veracity of the defendant generally violates the

right   to    a   jury   trial.    State      v.   Kirkman, 159 Wn.2d 918, 927, 155 P. 3d 125 ( 2007);                             Demery, 144

Wn. 2d       at   759.     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   929. "    To determine whether statements are impermissible opinion testimony, a court

will consider            the circumstances of               a case,        including, `( 1)             the type of witness involved, ( 2) the



specific nature of the
                   -                testimony, ( 3)         the     nature of           the    charges, (   4) the type of defense, and ( 5) the


other evidence            before the trier            of   fact."'        State v. King, 167 Wn.2d 324, 332- 33, 219 P. 3d 642

 2009) ( quoting Kirkman, 159 Wn.2d                            at    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    acts.         Bryson relied on a defense that he did not


intentionally spit at Kiser, but spit may have resulted from his trying to fix his dental appliance
                          his            Bryson                      if          hit Kiser, it          was accidental.   Bryson also claimed
which pinched                     lip.                 claimed            spit




that spit may have been the result of a chronic cough he had on the date of the incident even though


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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      an    objection   would   have   succeeded.       Gerdts,   136 Wn. App. at 727.

Therefore, Bryson         cannot    demonstrate that his       counsel' s    performance      was   deficient.   His


ineffective assistance of counsel claim fails.

III.      STATEMENT OF ADDITIONAL GROUNDS


          In his   statement of additional grounds (     SAG), Bryson asserts ( 1) ineffective assistance of


counsel, (   2)   prosecutorial misconduct, (     3) double    jeopardy, ( 4) the trial court miscalculated his

offender score, (      5) he did   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




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 2011).    To rebut this presumption, Bryson bears the burden of establishing the absence of any

legitimate trial tactic explaining counsel' s performance. Grier, 171 Wn.2d at 33.

                      1.            DNA Analysis


          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


existed.    Therefore, whether or not his trial counsel could not have presented such evidence is

speculative      and        outside    the   record.       Additionally, Bryson cannot ,demonstrate that his trial

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

                                                                                           bank   records.   Bryson fails to
evidence        on   his behalf, including             a   drug   store    receipt   and




demonstrate the relevance of this evidence, thus he fails to establish that his counsel' s performance

was deficient for failing to present it.

           B.          PROSECUTORIAL MISCONDUCT


           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




         C.        DOUBLE JEOPARDY


         Bryson asserts that the trial court violated his right to be free from double jeopardy under

the Washington Constitution              by imposing       two     sentences under one cause number.              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).               The federal and state constitutions prohibit being punished

twice   for the   same crime.      U.S. CONST.          amend.     V; WASH. CONST.          art.   I, § 9; RAP 2. 5(   a)(   3); State


v.   Freeman, 153 Wn.2d 765, 770- 71, 108 P. 3d 753 ( 2005). Multiple convictions whose sentences


are served      concurrently may         still   violate   the    rule   against   double   jeopardy. State v. Calle, 125

Wn.2d 769, 774- 75, 888 P. 2d 155 ( 1995).                       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            in law            in fact.   Calle, 125 Wn.2d at 777.                 If each
the same       offense   if   they are           same              and




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.




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           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                                                          crime   that   results   in   a conviction.   In this case,
      a   felony   conviction without   committing any


Bryson      was    convicted of   assault   in the third degree,     a class   C   felony,    on   June 10, 1991.    He


obtained six misdemeanor convictions before he was convicted of bail jumping, a class C felony,

on    May    29, 1996.    Bryson was then convicted of custodial assault, a class C felony on June 9,

1997.      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.



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          E.        COPIES OF VERBATIM REPORT OF PROCEEDINGS


          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.

          F.        CHARGES TIMELY FILED


          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"    unless an   information             or   indictment is filed. CrR 3. 2. 1( f)(1). "[         T] he 72 hour period shall


not   include any    part of   Saturdays, Sundays              or   holidays."   CrR 3. 2. 1( f)(1).     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.    RP   at   28.    The State charged Bryson by information filed at 10: 50 AM on Tuesday,

July 9,   2013.    The State filed charges within the required 72 hour period and Bryson' s claim fails.

          G.        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.




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        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. .




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