                                                                                                                         F LED
                                                                                                                           '
                                                                                                                UOUR T OF APPEALS
                                                                                                            201 SEP 2. AN 9.9
                                                                                                                     4     2
                                                                                                            S        0    W'A    NGT4N

                                                                                                                         PINY
      IN THE COURT OF APPEALS OF THE STATE OF WASHING
                                                DIVISION II

STATE OF WASHINGTON,                                                              No. 43325 7 II
                                                                                            - -


                                    Respondent,

        V.




RICHARD DONALD LLOYD JANSSEN,                                                UNPUBLISHED OPINION




         Richard Donald Lloyd Janssen appeals two jury convictions for first and second degree

assault of two community custody officers toward whom he shot while they were pursuing him.

He argues that the trial court denied him a fair trial by admitting propensity evidence of other

bad acts contrary to ER 404( ). his Statement of Additional Grounds (
                           b In                                     SAG),
                                                                        Janssen appears

to assert that (1) trial counsel provided ineffective representation by refusing to "fight"to
                  his
use   his Muslim   name   and     refusing   to enter   a   plea   of " ot
                                                                      n      guilty by   reason   of   insanity "   on his


behalf; 2) trial court erred in denying his request for an inferior degree jury instruction on
        ( the

third degree assault; 3) trial court deprived him of a fair hearing by allowing officers to say
                      ( the
                                   3
untruthful lies about [him]         , by testifying at the CrR 3. hearing that he said "white power "
                                                                5


1
    SAG ( round One)at 1.
        G
2
    SAG ( round Three)at 3.
        G

3 SAG ( round Four)at 1.
      G
4
    SAG (
        Ground     Four)at   1.
No. 43325 7 II
          - =



when he was being taken into custody; and (4)because he did not intend to inflict great bodily

harm on the two officers when he fired his gun in their direction, the trial court should not have

allowed the first degree assault charges to go to the jury. We affirm.

                                                 FACTS


                                               I.ASSAULTS


        In January 2011, Richard Donald Lloyd Janssen was serving the community custody

portion of his sentence, which required him to check in with his Community Corrections Officer,

Eric   Morgan,   on   a   monthly   basis.   When Janssen missed his January 19, 2011 check in
                                                                                             -

appointment, Morgan issued a probation warrant for Janssen's arrest.

        On February 10, Morgan and his partner, Tracy Peters, were driving in the community,

looking for offenders with outstanding warrants. They spotted Janssen on foot,made eye contact

with him,made a U turn,and pulled up behind Janssen, intending to arrest him. Janssen pulled a
                   -

shotgun from under his coat and fired in their direction. Morgan and Peters ducked under their

car's dashboard, Morgan put the car in reverse, and Peters radioed for assistance. Janssen fired a

second shot, and a pellet of birdshot cracked the driver's side windshield. Janssen then turned

and ran off.


        Longview police officers found Janssen running into the front yard of a residence.

Officer Shawn Close yelled for Janssen to stop and to put his hands in the air. Janssen put his

hands up but then began backing away. Close ordered Janssen to stop and to get on the ground;




                                                    2
No. 43325 7 II
          - -



Janssen    complied.   Officer Terry Reece read Janssen his Miranda rights, and Officer Chris
Angel helped take Janssen into custody.

          As Angel and other officers walked Janssen to a waiting patrol car, Janssen began

struggling and kicked out, breaking Angel's ankle. Close saw Janssen and two officers go to the

ground; Close helped hold down Janssen while Reece retrieved a hobble strap for Janssen's feet

and .a. spit hood for his face. Janssen screamed he was "white power" and that he had "friends

who ...    can come after you"; threatened to kill the officers and their families, 1 Verbatim
                              he

Report of Proceedings at 11, 20, just like I shot those D. .
                                  "                     C. officers."1B VRP 194.
                                                         E
                                                         O
                                           II. PROCEDURE


          The State charged Janssen with two counts of first degree assault of the corrections

officers (Morgan and Peters),
                            two counts of first degree unlawful possession of a firearm, two

counts of harassment relating to the threats he made after his arrest, and one count of custodial

assault.   Following a CrR 3. hearing, the trial court ruled admissible Janssen's spontaneous
                            5

statements during the struggle. Janssen then pleaded guilty to the harassment charges, the two

weapons charges, and the unrelated custodial assault charge.

          Janssen proceeded to a jury trial on the two remaining first degree assault charges Counts

I(
 Morgan)and II ( eters).He moved in limine to exclude evidence that he had kicked Officer
               P

Angel and broken his ankle. Granting the motion in part, the trial court prohibited the State from

mentioning Angel's broken ankle. But the trial court denied the motion to exclude the kicking

because "it did]have some relevance."lA VRP at 78.
            [

5
    Miranda v. Arizona, 384 U. .436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1966).
                             S
6"
     C."
     D. .
      O likely refers to.Department of Corrections.

                                                  3
No. 43325 7 II
          - -




         Janssen proposed a jury instruction that third degree assault is an " nferior"degree of first
                                                                             i

degree assault. The State objected and requested an instruction on second degree assault as a

lesser included offense of both first      degree assault   counts.   Citing   State   v.   Walther, the trial

court reasoned that the evidence did not support a rational inference that Janssen had committed

only   third   degree assault   and denied Janssen's request.   Granting the State's request, the trial

court instructed the jury on second degree assault.

         The jury convicted Janssen of first degree assault on Count I ( ric Morgan) and the lesser
                                                                       E

included second degree assault on Count II ( racy Peters).Janssen appeals.
                                           T

                                               ANALYSIS


                                      I. ADMISSIBILITY OF EVIDENCE


         Janssen contends that the trial court erred in admitting evidence that he had kicked Angel

during his arrest. Janssen argues that this evidence was (1)irrelevant under ER 401; 2)
                                                                                     ( unduly

prejudicial under ER 403; and (3)improper evidence of other crimes, wrongs, or acts used to

prove his propensity to commit the charged offenses, contrary to ER 404( ). first argument
                                                                       b His

fails; and because he failed to preserve his second and third arguments, we do not address them.

                                A. Preservation of Error; Standard of Review

         A parry may assign error in appellate court on only the specific ground that he raised in

an evidentiary objection at trial. See State v. Guloy, 104 Wn. d 412, 422, 705 P. d 1182 (1985).
                                                             2                  2

At trial,Janssen argued only that his kicking Officer Angel was irrelevant to any issue before the

court   and, therefore, inadmissible under      ER 401.     Janssen did not object below on the two


7
  State v. Walther, 114 Wn. App. 189, 192, 56 P. d 1001 ( 2002) defendant not entitled to
                                                        3                 (
inferior degree instruction for third degree assault because he used a firearm).



                                                     11
No. 43325 7 II
          - -



grounds that he raises for the first time on appeal: That this testimony was unduly prejudicial

under ER 403 and that it was improper propensity evidence under ER 404( ).
                                                                      b Thus, we address

only his first,preserved, relevance argument.

         We review for abuse.of discretion the trial court's admission of evidence. In making this

determination, we decide whether the challenged admission was manifestly unreasonable or

based   on    untenable   grounds   or reasons.   State v. Lormor, 172 Wn. d 85, 94, 257 P. d 624
                                                                         2                3

2011);
     State ex rel. Carroll v. Junker, 79 Wn. d 12,26,482 P. d 775 (1971).We find no abuse
                                           2              2

of discretion here.


                                          B. ER 401 Relevance


         ER 401 defines relevant evidence as "having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence." Under ER 401, evidence is not considered relevant unless it

has a tendency to prove or disprove a fact that is of some consequence in the context of the other

facts and the     applicable   substantive law.     51) KARL B. TEGLAND, WASHINGTON PRACTICE:

COURTROOM HANDBOOK ON WASHINGTON EVIDENCE, Rule 401 at 212 13 (
                                                           - 2012 13 ed.) (
                                                                  -     citing

State   v.   Sargent, 40 Wn. App. 340, 698 P. d 598 ( 1985)).
                                            2               Stated another way, evidence is

relevant if a logical nexus exists between the evidence and the fact to be established."State v.
            "

Burkins, 94 Wn. App. 677, 692, 973 P. d 15 (1999).The threshold for evidentiary relevance is
                                    2

low: "
     Even minimally relevant evidence is admissible."State v. Darden, 145 Wn. d 612, 621,
                                                                            2

41 P. d 1189 (2002).
    3

         To prove first degree assault, the State had to prove that Janssen intended to inflict great

bodily harm on Peters and Morgan, who had been pursuing him when he (Janssen) fired a


                                                      5
No. 43325 7 II
          - -



shotgun toward their patrol car. RCW 9A. 6. Janssen's later kicking Angel, who was
                                     011(
                                        1
                                        3 ).

helping other officers subdue Janssen during his arrest, had a logical nexus with the charged

assaults because it showed Janssen's state of mind and his intent to resist capture and to cause

great bodily harm      to the officers      trying   to take him into       custody. In light of the trial court's

broad discretion in admitting evidence and the low threshold for relevance, we find no reversible

error in the trial court's admission of this evidence.


                                                     II. SAG ISSUES


        Janssen asserts multiple claims of reversible error in his SAG. We address each in turn.

All fail.


                                         A. Effective Assistance of Counsel


        Janssen first asserts that his trial counsel provided ineffective assistance in refusing to

fight"for him to have his new name, Ali Akbar Muhammad,"
                                    "                  used during trial and in refusing

to enter    on   his behalf   a
                                  plea   of not   guilty by   reason   of   insanity. SAG (Grounds One) at 1.

Because these issues involve matters outside the trial record before us, we cannot consider them

on direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P. d 1251 (1995).
                                                               2
                                           B. Inferior-
                                                      Degree Instruction

        Janssen next asserts that the trial court erred by refusing his request for an inferior -
                                                                                                degree

instruction on third degree assault. We disagree.

        In general, a defendant is entitled to any proper instructions that allow him to argue his

theory of the case, so long as there is evidence to support the giving of such instructions. State v.


8
 The proper procedure for raising issues dependent on matters outside the record is by way of a
personal restraint petition. McFarland, 127 Wn. d at 335.
                                              2

                                                              Co
No. 43325 7 II
          - -



Griffith, 91 Wn. d 572, 574 75, 589
               2            -            P. d 799 (1979). We
                                          2                     review jury instructions de novo.

State v. Sibert, 168 Wn. d 306, 311, 230 P. d 142 (2010).
                       2                  3

         We apply the following test to determine whether a defendant is entitled to an inferior

degree instruction: A crime is an inferior degree of another when

         1)the statutes for both the charged offense and the proposed inferior degree
         offense "proscribe but   one offense "; (2) the information charges an offense is
         divided into degrees, and the proposed offense is an inferior degree of the charged
         offense; and (3) there is evidence that the defendant committed only the inferior
         offense.


State v. Peterson, 133 Wn. d 885, 891, 948 P. d 381 (1997)internal quotation marks omitted)
                         2                  2              (

quoting State v. Foster, 91 Wn. d 466, 472, 589 P. d 789 (1979)and State v. Daniels, 56 Wn.
                              2                  2

App. 646, 651, 784 P. d 579 (1990)). also State v. Fernandez-
                    2             See                       Medina, 141 Wn. d 448,454-
                                                                          2

455, 6 P. d 1150 (2000).Here, we focus on the third component of this test.
        3

         Thus, we review the evidence to determine whether it supports the inference.that Janssen

committed only third degree assault: We hold that it does not. Even viewed.in the light most

favorable to Janssen, the evidence showed that he fired a shotgun twice at Morgan and Peters,

hitting the front of their car and the windshield. As we held in State v. Walther, 114 Wn. App.

189, 192, 56 P. d 1001 (2002)emphasis added), "
              3               (             Any assault with a deadly weapon is at least a

second   degree   assault "   and any loaded firearm that "is readily capable of causing death or



9
 RC W 9A. 6. provides, in part:
         3 1)   021(
      A person is guilty of assault in the second degree if he or she, under
      circumstances not amounting to assault in the first degree:.. (Assaults another
                                                                    c)
      with a deadly weapon.
The legislature amended RCW 9A. 6. in 2011. LAWS of 2011, ch. 166, § 1. The
                                 021   3
amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.




                                                  h
No. 43325 7 II
          - -



substantial    bodily   harm" is   a   deadly   weapon (citing RCW          110(
                                                                            9A. 4. Because
                                                                               6
                                                                               0 )                    Janssen


used a firearm to assault Morgan and Peters, as a matter of law ( ) did not commit only third
                                                                1 he

degree assault (even though he did not injure either officer with the shots he fired); (2)
                                                                                     and

therefore, he    was    not entitled to   an   instruction   on   third degree assault. We hold that the trial


court properly denied Janssen's requested instruction.

                                               C. Witness Credibility

           Janssen also asserts that the trial court did not accord him a fair hearing because the

arresting officers lied about him when they testified that he had used the term "
                                                                                white power."

SAG ( round Four)at 1. Again,we disagree.
    G

           The record shows that the officers testified about Janssen's white power"comment only
                                                                         "

at the.CrR 3.
            5      hearing, at     which the trial court         was   the finder of fact. VRP at 11, 20. The


persuasiveness, credibility, and weight of the evidence are matters for the trier of fact and are not

subject to our review. See State v. Camarillo, 115 Wn. d 60, 71, 794 P. d 850 (1990);
                                                     2                2             State v.

Walton, 64 Wn. App. 410, 415 16, 824 P. d 533, review denied, 119 Wn. d 1011 ( 1992).
                             -        2                             2

Because we do not second guess the trial court's evaluation_ f the officers' credibility, Janssen's
                         -                                 o
claim fails.



to
      legislature amended RCW 9A. 4.in 2011. LAWS of 2011, ch. 336, § 350; and LAWS
     The                           110  0
OF 2011, ch. 1.6, § 2. The amendments did not alter the statute in any way relevant to this case;
               6
accordingly, we cite the current version of the statute.
11
   Janssen also appears to assert that the remedy for these "lies"should be allowing withdrawal
his guilty plea for the counts not involved in this appeal namely (harassment, two weapons
charges, and an unrelated custodial assault). Janssen's guilty pleas for these other counts are not
before us in this appeal; thus, we cannot address them. Moreover, his request to allow him to
withdraw his guilty pleas to these other counts involves matters outside the record before us in
this direct appeal. See McFarland, 127 Wn. d at 338.
                                           2

                                                             8
No. 43325 7 II
          - -



                                      D. Sufficiency of Evidence

       Janssen next appears to argue that the trial court should not have allowed the first degree
                                                    '

assault charges to reach the jury for deliberation because he did not intend to cause serious
                                                                                                           12
bodily injury   to either   Morgan   or   Peters when he fired the   shotgun   toward their   patrol   car.




Janssen is correct to the extent that intent to inflict great bodily harm is an element of first degree

assault that the State must prove beyond a reasonable doubt. We treat Janssen's claim as a

challenge to the sufficiency of the evidence of his intent. Thus, we review the evidence in the

light most favorable to the State in order to determine whether, based on the evidence, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. State v. Brockob, 159 Wn. d 311, 336, 150 P. d 59 2006).
                               2                  3      (

        The record before us on appeal contains no direct evidence of Janssen's intent. Again,

we cannot go outside the record before us on appeal to consider Janssen's assertion.in his SAG

that he did not intend to harm the officers. Thus,in looking at the record as a whole,we evaluate

the circumstantial evidence of his intent, which is no less reliable than direct evidence. See State

v. Delmarter, 94 Wn. d 634, 638, 618 P. d 99 ( 980).
                   2                  2      1




12
  When the State rested its case at trial, Janssen did not move to dismiss the first degree assault
charges on grounds of insufficient proof of the intent element. Because the defense presented no
case, the evidence was the same at the close of the State's case as it was when the jury
considered it during its deliberations. In light of our evaluation of the sufficiency of the
evidence, even if Janssen had moved to dismiss the State's case, he would have failed.

13 RCW 9A. 6.1 (1)( provides:
       013       a)
        A person is guilty of assault in the first degree if he or she, with intent to inflict
        great bodily harm: (a)  Assaults another with a firearm or any deadly weapon or
        by any force or means likely to produce great bodily harm or death.



                                                     9
No. 43325 7 II
          - -




       We hold that the State presented sufficient evidence that Janssen assaulted Morgan and

Peters with intent to cause great bodily harm. The record shows that he fired a shotgun twice

toward Morgan and Peters' patrol car and that the second shot cracked the driver's side

windshield. We hold that based on this evidence, a rational trier of fact could have found beyond

a reasonable doubt the required element of intent to inflict great bodily harm.

       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

040,
2.6.it is so ordered.
 0




                                                  Hunt, J.

We concur:




     4' M
        ,
Worswick. C. .
           J



Maxa, J.




                                                10
