                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           October 11, 2016
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    STATE OF WASHINGTON                                                No. 47258-9-II

                          Respondent,

           v.

    JOHN W. A. RUSSELL,                                         UNPUBLISHED OPINION

                          Appellant.


          Sutton, J. — John W. A. Russell appeals his conviction for first degree assault with a deadly

weapon1 and his sentencing condition. We hold that there was sufficient evidence to support

Russell’s conviction for first degree assault with a deadly weapon, the trial court did not abuse its

discretion when it ordered that he be evaluated for civil commitment prior to his release, and the

trial court erred when it imposed discretionary legal financial obligations (LFOs) without making

an individualized inquiry as to his ability to pay. As to Russell’s statement of additional grounds

(SAG) claim, we hold that the trial court did not violate his right to an impartial jury when it

permitted a juror with prior knowledge of the case to remain on the jury. Therefore, we affirm

Russell’s conviction and the sentencing condition requiring that he be evaluated for civil

commitment prior to his release, but we strike the discretionary LFOs and remand for the trial

court to modify his judgment and sentence accordingly.




1
    Russell does not appeal his conviction for assault in the second degree.
No. 47258-9-II


                                              FACTS

                                      I. BACKGROUND FACTS

        On the evening of June 28, 2014, Don and Jeanette Johnson had several of their children

and their friends from the neighborhood over for dinner at their home in Aberdeen. Ike Stone and

Jack Russell were among the friends having dinner that evening. Jeanette2 testified that Stone

visited their home often and that Russell had been to the house before, but she did not know him

well.

        Several people were drinking throughout the night, including Jeanette, Stone, and Russell.

Jeanette testified that Don went to bed around midnight and that she, Stone, and Russell were

sitting at the dining room table talking and drinking. Around 2:30 a.m., all other guests had left,

and Jeanette told Stone and Russell to “wrap it up” because it was getting late. 1 Verbatim Report

of Proceedings (VRP) (Jan. 27, 2015) at 71. Both Jeanette and Stone testified that there were no

arguments or disagreements that evening. Stone testified that just before 3:00 a.m., Russell

“seemed . . . out of it,” was resting his head on the counter, and that he was so intoxicated that he

was unable to hold fluids in his mouth. 1 VRP (Jan. 27, 2015) at 117.

        Jeanette testified that Russell stood up suddenly and she thought he was standing up to

leave when she felt a “rush of warm going down [her neck].” 1 VRP (Jan. 27, 2015) at 72. Stone

testified that Russell “suddenly jumped up, got behind Jeanette, and slashed her throat with a

knife.” 1 VRP (Jan. 27, 2015) at 98. Russell also cut Stone on his neck and chest before Stone

was able to grab the knife and restrain Russell. Stone continued to restrain Russell until he got



2
  We refer to parties with the same last name by first names to avoid confusion; we intend no
disrespect.

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No. 47258-9-II


weaker, and Stone eventually laid him on the floor. Stone testified that Russell explained his

actions and stated that Jeanette “hurt [him]” and he “wanted to show that people will do things for

no reason.” 1 VRP (Jan. 27, 2015) at 101-02.

       Jeanette suffered extensive injuries.   Her neck was slashed with a knife causing her to

lose a great deal of blood. The wound required a lengthy surgery to repair and a multiple day

hospital stay. The State charged Russell with one count of first degree assault as to Jeanette and

one count of second degree assault as to Stone with a deadly weapon enhancement and a firearm

enhancement added to each count.

                                       II. JURY VOIR DIRE

       Following jury voir dire but before opening statements, juror 10 stated that she was the

charge nurse on duty at the hospital when Jeanette was being treated. Both Russell and the State

questioned juror 10 outside the presence of the other jurors. Juror 10 stated that she understood

that Jeanette had been cut with a knife by a man, that she may have said “hello” to her, and that

she received reports about her care. VRP (Feb. 5, 2015) at 6. However, juror 10 also stated that

she did not “know any details of what . . . happened” and that her knowledge of the case would

not influence her decision. VRP (February 5, 2015) at 8. Defense counsel did not exercise a

preemptory challenge to dismiss juror 10 or challenge juror 10 for cause.

                                      III. GUILTY VERDICT

       To find Russell guilty of first degree assault as to Jeanette, the jury is required to find

beyond a reasonable doubt that he acted “with intent to inflict great bodily harm.” RCW

9A.36.011(1). The jury found Russell guilty of one count of first degree assault and one count of




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No. 47258-9-II


second degree assault, both with a deadly weapon enhancement, but did not find him guilty of the

firearm enhancement on either count.

                                             IV. SENTENCE

          The trial court sentenced Russell to 147 months of confinement as to count one and

14 months of confinement as to count two. The trial court also imposed a term of community

custody of 36 months as to count one and 18 months as to count two. The trial court ordered that

Russell “shall be evaluated for civil commitment on mental health grounds prior to release” and

stated,

          I want . . . [to] have him evaluated for civil commitment after he is released from
          prison, because I don’t know what his mental state is going to be after he serves
          time in prison, but I know that he did something that is so horrible, without any
          explanation.
          ...
          [B]ecause I can’t understand what he did.

Clerk’s Papers (CP) at 7; VRP (February 20, 2015) at 7-8, 10.

          The trial court also imposed $575 in discretionary LFOs, $200 in court costs, $100 in DNA

collection fees, $500 in victim assessment, and an undetermined amount in restitution. The trial

court did not make a finding as to whether Russell had the ability to pay discretionary LFOs. The

trial court found Russell indigent at trial and for appeal. Russell was 27 years old at the time and

no information was presented as to his ability to work upon his release. Russell appeals.

                                              ANALYSIS

                                     I. SUFFICIENCY OF EVIDENCE

          Russell argues that the State did not present sufficient evidence that he intended to inflict

great bodily harm on Jeannette because he could not act with the required intent when he was so


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No. 47258-9-II


intoxicated, and thus the State failed to prove that he committed assault in the first degree with a

deadly weapon beyond a reasonable doubt. We disagree.

       When reviewing a sufficiency of the evidence claim, we ask whether, after viewing the

evidence in a light most favorable to the State, any rational trier of fact could have found the

essential elements of the charged crime beyond a reasonable doubt.            State v. Witherspoon,

180 Wn.2d 875, 883, 329 P.3d 888 (2014). When a defendant challenges the sufficiency of the

evidence, the defendant necessarily admits the truth of the State’s evidence and all reasonable

inferences that can be drawn from it. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014).

We defer to the trier of fact as to resolving conflicting testimony, evaluating witness credibility,

and evaluating the persuasiveness of the evidence. Homan, 181 Wn.2d at 106.

       To support a conviction for assault in the first degree with a deadly weapon as charged, the

State was required to prove the following elements beyond a reasonable doubt:

       That [Russell] in Grays Harbor County, Washington, on or about June 29, 2014,
       with intent to inflict great bodily harm, did assault [Jeanette] with a deadly weapon
       or by force or means likely to produce great bodily harm

RCW 9A.36.011(1)(a); CP at 34. First degree assault requires the specific intent to inflict great

bodily harm. State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). Specific intent is defined

as the “intent to produce a specific result, as opposed to intent to do the physical act that produces

the result.” Elmi, 166 Wn.2d at 215.

       Although the voluntary intoxication of a defendant does not make an act by that individual

“less criminal,” his intoxication may be considered in determining whether they possessed the

necessary mental state required to commit the crime. RCW 9A.16.090. The trier of fact may

consider the defendant’s intoxication, but the voluntary intoxication statute “does not require that


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No. 47258-9-II


consideration to lead to any particular result.” State v. Coates, 107 Wn.2d 882, 889-90, 735 P.2d

64 (1987)

       By challenging the sufficiency of the evidence, Russell necessarily admits the truth of

Stone’s testimony and all reasonable inferences that can be drawn from it. Homan, 181 Wn.2d

at 106. Here, Stone testified that Russell “suddenly jumped up, got behind Jeanette, and slashed

her throat with a knife.” 1 VRP at 98. Stone also testified that Russell explained his actions and

stated that Jeanette “hurt [him]” and he “wanted to show that people will do things for no reason.”

1 VRP at 101-02. The jury was allowed to consider Russell’s intoxication but was not required to

find that his voluntary intoxication precluded him from forming the required specific intent to

inflict great bodily harm as required for the crime of first degree assault. Coates, 107 Wn.2d 889-

90. We defer to the trier of fact to determine the persuasiveness of the evidence. Homan,

181 Wn.2d at 106. We hold that in viewing the evidence in a light most favorable to the State, a

rational trier of fact could find that Russell intended to inflict great bodily harm with a deadly

weapon beyond a reasonable doubt. Thus, we affirm the first degree assault conviction with a

deadly weapon.

                                   II. SENTENCING CONDITION

       Russell argues that the trial court erred when it ordered that he be evaluated for civil

commitment prior to his release because there was no evidence at trial that he had a mental health

disorder or mental defect requiring an evaluation, and because he was not evaluated for

competency.3 We disagree.



3
 Although Russell argues that he was not evaluated for competency under RCW 71.05, he does
not cite any authority that such an evaluation is required prior to sentencing.

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No. 47258-9-II


       Sentencing conditions are usually upheld if they are reasonably crime related. State v.

Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008). However, the court is required to enter findings

of fact that the defendant’s mental illness contributed to his crimes before it orders a defendant to

participate in mental health treatment. State v. Jones, 118 Wn. App. 199, 209, 76 P.3d 258 (2003).

We review a sentencing condition for an abuse of discretion. Warren, 165 Wn.2d at 32.4

       Here, the trial court did not order Russell to participate in mental health treatment; it only

ordered that he “shall be evaluated for civil commitment on mental health grounds prior to release.”

CP at 7. The trial court reasoned that it “[couldn’t] understand what [Russell] did” when “he did

something that is so horrible, without any explanation.” VRP (Feb. 20, 2015) at 8, 10.

       Thus, we hold that the trial court did not abuse its discretion because the condition that

Russell be evaluated for civil commitment is reasonably crime related when the court had no other

rational explanation for Russell’s actions.

                                    III. DISCRETIONARY LFOS

       Russell argues that the trial court erred when it imposed $575 in discretionary LFOs

without inquiring as to his ability to pay. We agree.

       “A defendant who makes no objection to the imposition of discretionary LFOs at

sentencing is not automatically entitled to review.” State v. Blazina, 182 Wn.2d 827, 832,

344 P.3d 680 (2015). Generally, we may refuse to review a claim of error raised for the first time

on appeal. RAP 2.5(a). But, as our Supreme Court in Blazina noted, an appellate court may




4
  Russell does not argue that the trial court did not have the authority to impose a crime-related
condition, including a mental evaluation, but simply argues that there was “no evidence presented
at trial that Russell suffered a mental health disorder.” Br. of Appellant at 11.

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No. 47258-9-II


exercise its discretion to reach unpreserved claims of error. Blazina, 182 Wn.2d at 832-33. We

choose to exercise our discretion to review this issue given the length of Russell’s sentence and

his indigency.

       RCW 10.01.160(3) provides,

       The court shall not order a defendant to pay costs unless the defendant is or will be
       able to pay them. In determining the amount and method of payment of costs, the
       court shall take account of the financial resources of the defendant and the nature
       of the burden that payment of costs will impose.

       The sentencing court must make an “individualized inquiry into the defendant’s current

and future ability to pay before the court imposes LFOs.” Blazina, 182 Wn.2d at 839. The inquiry

must “consider important factors, such as incarceration and a defendant’s other debts, including

restitution, when determining a defendant’s ability to pay.” Blazina, 182 Wn.2d at 839.

       Here, the record does not show that the trial court made any individualized inquiry into

Russell’s ability to pay prior to imposing discretionary LFOs. Given the length of his sentence,

15 years, and his indigency, it is unlikely that Russell has or will have the ability to pay the

discretionary LFOs. Thus, the trial court erred when it imposed discretionary LFOs without

making an individualized inquiry as to his ability to pay and we strike the imposition of

discretionary LFOs. We remand to strike the discretionary LFOs and order the trial court to modify

Russell’s judgment and sentence accordingly.

                            IV. STATEMENT OF ADDITIONAL GROUNDS

       In his SAG, Russell claims that the court infringed upon his right to an impartial jury

because it allowed a juror to continue serving when the juror admitted that she had prior knowledge

of the case. We disagree.



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No. 47258-9-II


       We assume without deciding under RAP 2.5(a) that Russell raises a constitutional error

that is reviewable for the first time on appeal. A defendant raising a constitutional error must show

that the constitutional error is “manifest.” State v. Lamar, 180 Wn.2d 576, 583, 327 P.3d

45 (2014). An error is manifest if the defendant can show that it “resulted in . . . practical and

identifiable consequences in the trial.” Lamar, 180 W.2d at 583.

       Here, defense counsel did not exercise a preemptory challenge to dismiss juror 10 or

challenge juror 10 for cause. Both Russell and the State had an opportunity to question juror 10

after she stated that she had prior knowledge of the case. Juror 10 stated that she understood that

Jeanette had been cut with a knife by a man, that she may have said “hello” to her, and she received

reports about her care. VRP (Feb. 5, 2015) at 6. However, juror 10 also stated that she “did not

know any details of what . . . happened” and that her knowledge of the case would not influence

her decision. VRP (Feb. 5, 2015) at 8. There is no evidence in the record that juror 10 could not

be impartial. And Russell cannot show that the alleged constitutional error affected the outcome

of the trial. Thus, we hold that Russell’s right to an impartial jury was not violated when the trial

court allowed juror 10 to serve on the jury.

                                          CONCLUSION

       We hold that there was sufficient evidence to support Russell’s conviction for first degree

assault with a deadly weapon, that the trial court did not abuse its discretion when it ordered that

he be evaluated for civil commitment prior to his release, but that the trial court erred when it

imposed discretionary LFOs without making an individualized inquiry as to his ability to pay. As

to his SAG claim, we hold that the trial court did not violate his right to an impartial jury when it

permitted a juror with prior knowledge of the case to remain on the jury.


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No. 47258-9-II


        We affirm Russell’s conviction and the sentencing condition that he be evaluated for civil

commitment prior to his release. But we strike the $575 in discretionary LFOs from his judgment

and sentence, and remand for the trial court to modify his judgment and sentence accordingly.

        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.



                                                     SUTTON, J.
 We concur:



 JOHANSON, P.J.




 LEE, J.




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