                                                      ILED
                                             COURT OF APPEALS DIV I
                                              STATE OF WASHINGTON

                                                2011 JUL 31   11: 08

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                            )
                                                )        No. 76742-9-1
                     Respondent,                )
                                                )        DIVISION ONE
              v.                                )
                                                )        UNPUBLISHED OPINION
 DALE ROBERT SMITH,                             )
                                                )
                     Appellant.                 )        FILED: July 31, 2017
                                                )
      APPELWICK, J. — Smith was convicted of assault in the third degree. He

contends that his conviction is not supported by sufficient evidence, that the jury

instructions relieved the State of its burden to prove intent, and that he received

ineffective assistance of counsel. We affirm.

                                     FACTS

       On the evening of December 31, 2015, Dale Smith went to his friend Jared

Collins's house for a small party. Smith was drinking quite a bit. Later in the

evening, Smith fell in the bathroom. Collins found Smith passed out in the

bathroom. Collins called 911 after he could not find Smith's pulse.

       Collins woke Smith up before medical assistance arrived. Smith appeared

to be very intoxicated. When the medics arrived, Smith was having mood swings

and refusing to go to the hospital. He became very depressed and stated that he

wanted to get his gun from his car to shoot himself. The medics called for police

assistance.
No. 76742-9-1/2


      Toledo Police Officer Andrew Scrivner and Lewis County Sheriffs Office

Deputies Ezra Andersen and Matthew Schlecht responded to the call. The officers

noticed that Smith appeared to be very intoxicated.

      Smith agreed to go to the hospital. Deputies Schlecht and Andersen took

Smith out of the house, holding on to his arms to help him walk. The officers had

to force Smith on to a Gurney. Once he was strapped in, Smith changed his mind.

He said he would agree to go to the hospital only if the officers let him urinate

beforehand. The officers agreed to this condition, and helped Smith walk to the

bushes and held him to maintain his balance while he urinated.

      Afterward, Smith's demeanor changed. Officer Scrivner heard him make

statements suggesting that he was not going to the hospital. Smith then lunged

toward Deputy Schlecht, hitting the deputy in the midsection with his shoulder.

Smith said," let me see that gun.'" Smith reached for Deputy Schlecht's gun,

and started lifting up on Deputy Schlecht's belt. Deputy Schlecht secured his

firearm. Officer Scrivner and Deputy Andersen restrained Smith. The officers

placed Smith in handcuffs after a brief struggle.

             Smith was charged with assault in the third degree.         He was

convicted as charged. He appeals.

                                  DISCUSSION

      Smith argues that there was insufficient evidence to support his conviction.

He asserts that the jury instructions were confusing and relieved the State of the

burden of proving the element of intent. And, he contends that if his conviction

was supported by sufficient evidence, then his counsel provided ineffective


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No. 76742-9-1/3


assistance by failing to elicit evidence that Smith was too intoxicated to form the

requisite intent.

  I.   Sufficiency of the Evidence

       Smith asserts that his conviction is not supported by sufficient evidence.

Smith contends this is so, because the State failed to prove that he had the specific

intent to commit an assault.       Smith points to the evidence of his extreme

intoxication as proof that he could not form the requisite intent.

       In determining the sufficiency of the evidence, we ask whether, after viewing

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

have found the essential elements of the crime beyond a reasonable doubt. State

v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015). A claim of insufficiency

admits the truth of the State's evidence and all reasonable inferences therefrom.

Id. Credibility determinations are within the province of the jury, and we will not

review them. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102(1997).

       A person commits assault in the third degree if he or she

              (a) With intent to prevent or resist the execution of any lawful
       process or mandate of any court officer or the lawful apprehension
       or detention of himself, herself, or another person, assaults another;
       Or



              (g) Assaults a law enforcement officer or other employee of a
       law enforcement agency who was performing his or her official duties
       at the time of the assault.
RCW 9A.36.031(a), (g). The "to convict" instruction in this case informed the jury

of these two alternative bases on which it could find Smith committed assault in

the third degree.


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No. 76742-9-1/4


       To commit an assault, a person must have a specific intent to cause bodily

harm or to create a reasonable apprehension of bodily harm. State v. Byrd, 125

Wn.2d 707, 712-13,887 P.2d 396(1995). Specific intent cannot be presumed, but

it can be inferred as a logical probability from the facts and circumstances. State

v. Pedro, 148 Wn. App. 932, 951, 201 P.3d 398(2009).

       An act committed by a person who is voluntarily intoxicated is no less

criminal due to the person's intoxication. RCW 9A.16.090. Under this statute,

voluntary intoxication is not a defense to the crime. State v. Coates, 107 Wn.2d

882, 891, 735 P.2d 64 (1987). But, if a particular mental state is a necessary

element of the crime, the fact of the person's intoxication may be considered in

determining his or her mental state. RCW 9A.16.090. To be entitled to a voluntary

intoxication instruction, the crime must have a particular mental state for an

element, there must be substantial evidence of drinking, and there must be

evidence that the drinking affected the defendant's ability to form the requisite

mental state. State v. Gabrvschak, 83 Wn. App. 249, 252, 921 P.2d 549(1996).

       Smith contends that he should have succeeded in showing that his

voluntary intoxication prevented him from forming the requisite intent to assault the

deputy. He asserts this is so, because in addition to the great amount of evidence

of his severe intoxication, the officers testified that even if Smith did not voluntarily

go to the hospital, they were required to bring him in under an " 'involuntary

treatment act.'"




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No. 76742-9-1/5


       RCW 70.96A.120(2) permits law enforcement officers to take a person into

protective custody in certain circumstances. RCW 70.96A.120(2) provides, in

pertinent part,

      IA] person who appears to be incapacitated or gravely disabled by
      alcohol or other drugs and who is in a public place or who has
      threatened, attempted, or inflicted physical harm on himself, herself,
      or another, shall be taken into protective custody by a peace officer
      or staff designated by the county and as soon as practicable, but in
      no event beyond eight hours brought to an approved treatment
      program for treatment.

A person is "incapacitated" by alcohol when he or she "is gravely disabled or

presents a likelihood of serious harm to himself or herself, to any other person, or

to property." RCW 70.96A.020(13). A person is "gravely disabled" by alcohol

when he or she either is in danger of serious physical harm due to a failure to

provide for essential human needs, or manifests a severe deterioration in routine

functioning. RCW 70.96A.020(11). A "likelihood of serious harm" exists when

there is a substantial risk that the person will inflict physical harm upon his or her

own person, as evidenced by threats or attempts to commit suicide or harm

oneself. RCW 70.96A.020(17)(a).

       The record contains ample evidence that Smith was a person who appeared

to be incapacitated by alcohol and who had threatened physical harm on himself.

Officer Scrivner testified that when Smith was sitting on the couch inside, his

speech was slurred, and he appeared to have urinated on himself. Officer Scrivner

could smell intoxicants on Smith. Deputy Schlecht also testified that Smith smelled

of intoxicants and appeared very intoxicated. Deputy Schlecht said that he told

Smith he had to go to the hospital, "because it's an involuntary treatment act."


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No. 76742-9-1/6


Deputy Schlecht explained that Smith needed to go to the hospital because he

was too intoxicated to care for himself. And, Smith had made suicidal statements

and had the means to carry out this threat.

       But, evidence in the record also shows that Smith remained capable of

making volitional decisions and intentional acts. When Deputy Schlecht arrived on

the scene, Smith recognized him immediately. Smith greeted Deputy Schlecht by

name and appeared happy to see him. As Deputy Schlecht started talking with

Smith to assess the situation, Smith responded to questions. Smith made the

decision to voluntarily go to the hospital for treatment. But, upon being strapped

to the gurney and told that he did not have a choice in whether he went to the

hospital, Smith became upset. He unbuckled himself from the gurney and decided

he no longer wanted to go to the hospital. He negotiated with the officers: if they

let him urinate, he would agree to go to the hospital. After urinating, Smith told the

officers that he was finished. Then, he turned toward Deputy Schlecht and shoved

his shoulder into the deputy's midsection. As Smith made contact with Deputy

Schlecht, he said, "'Let me see that gun.'" Smith then acted on those words,

grabbing on Deputy Schlecht's firearm and pulling his duty belt upward. After the

officers restrained him, Smith reiterated his opposition to going to the hospital. He

struggled and yelled that officers would not be able to take him in.

       Viewing this evidence in the light most favorable to the State, a rational trier

of fact could have concluded that Smith acted with the requisite intent to assault

Deputy Schlecht. Sufficient evidence supports the conviction for assault in the

third degree.


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No. 76742-9-1/7


 II.   Jury Instructions

       Smith argues that the jury instructions were confusing and relieved the State

of its duty to prove the element of intent. He contends that the multiple jury

instructions pertaining to intent required the jury to make inferences to understand

how to apply the law.

       Jury instructions must inform the jury of the applicable law, not mislead the

jury, and allow the parties to argue their theories of the case. State v. Bennett,

161 Wn.2d 303, 307, 165 P.3d 1241 (2007). It is reversible error to instruct the

jury in such a way that relieves the State of its burden to prove every element of a

crime beyond a reasonable doubt. Id. Where jury instructions contain a manifest

error affecting a constitutional right, the defendant may challenge the instructions

on appeal even if he or she did not object to them below. State v. Stein, 144 Wn.2d

236, 240, 27 P.3d 184 (2001). We review challenged jury instructions de novo,

considering the context of the instructions as a whole. Bennett, 161 Wn.2d at 307.

       Here, the jury instructions contained five instructions pertaining to assault

and intent. Instruction three defined assault in the third degree:

       A person commits the crime of assault in the third degree when he
       or she assaults another with intent to prevent or resist the execution
       of any lawful process or mandate of any court officer or the lawful
       apprehension of himself, herself, or another person, or assaults a law
       enforcement officer or other employee of a law enforcement agency
       who was performing his or her official duties at the time of the
       assault.
Instruction four, the to convict instruction, provided,

             To convict the defendant of the crime of assault in the third
       degree, each of the following elements of the crime must be proved
       beyond a reasonable doubt:


                                              7
No. 76742-9-1/8

            (1)That on or about January 1, 2016,the defendant assaulted
       Deputy Mathew Schlect;

              (2a) That the assault was committed with intent to prevent or
       resist the execution of a lawful process or mandate of a court officer
       or the lawful apprehension or detention of the defendant or another
       person; or

            (2b) That at the time of the assault Deputy Mathew Schlecht
       was a law enforcement officer or other employee of a law
       enforcement agency who was performing his or her official duties;
       and

            (3) That any of these acts occurred in the State of
       Washington.

Instruction five gave the definition of assault:

              An assault is an intentional touching or striking of another
       person that is harmful or offensive regardless of whether any
       physical injury is done to the person. A touching or striking is
       offensive if the touching or striking would offend an ordinary person
       who is not unduly sensitive.

              An assault is also an act done with the intent to create in
       another apprehension and fear of bodily injury, and which in fact
       creates in another a reasonable apprehension and imminent fear of
       bodily injury even though the actor did not actually intend to inflict
       bodily injury.

Instruction six clarified the requisite intent:

              A person acts with intent or intentionally when acting with the
       objective or purpose to accomplish a result that constitutes a crime.

And, instruction seven explained the voluntary intoxication theory:

       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.
       Smith contends that these instructions did not clearly instruct the jury that

intent is an essential element of the offense. He contends that option 2b of the to

convict instruction omitted the element of intent. And, he argues that the to convict


                                                  8
No. 76742-9-1/9


instruction should have provided that the State is required to prove intent as an

element of the crime.

        We disagree. Instruction three tracks the statutory definitions of assault in

the third degree that pertained to the case. See RCW 9A.36.031(1)(a), (g).

Instruction four informed the jury that it must find that Smith assaulted Deputy

Schlecht. It provided two alternative requirements: either Smith intended to avoid

a lawful process or apprehension, or Deputy Schlecht was a law enforcement

officer performing his official duties. Instruction five defined the element of assault,

specifying clearly that an assault is an intentional act. Instruction six defined intent.

And, instruction seven permitted the jury to consider whether Smith's intoxication

prevented him from acting intentionally. In reviewing jury instructions, we look at

the context of the instructions as a whole. Bennett, 161 Wn.2d at 307. These

instructions acted as a cohesive unit to inform the jury of the requisite intent. They

did not relieve the State of its burden to prove that Smith acted intentionally.

 III.   Ineffective Assistance of Counsel

        Smith contends that if sufficient evidence supports his conviction, then his

trial counsel provided ineffective assistance by failing to present evidence to

support the voluntary intoxication theory. He asserts that if the evidence that was

presented was not sufficient to establish that he was incapable of forming the

requisite intent, then effectively expert testimony would be necessary to succeed

on a voluntary intoxication theory.

        To show ineffective assistance of counsel, a defendant must demonstrate

both that counsel's conduct was deficient and that the deficient performance


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No. 76742-9-1/10


resulted in prejudice. State v. Nichols, 161 Wn.2d 1,8, 162 P.3d 1122(2007). To

show that counsel's performance was deficient, the defendant must establish that

it fell below an objective standard of reasonableness given the circumstances.

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We engage

in a strong presumption that counsel's performance was effective. Id. at 335. To

show that the deficient performance was prejudicial, the defendant must show that

there is a reasonable probability that but for counsel's errors, the result of the

proceeding would have been different. Id.

       Generally, counsel's decision to call a witness is a matter of legitimate trial

tactics. In re Pers. Restraint of Monschke, 160 Wn. App. 479, 492, 251 P.3d 884

(2010). Unless the defendant shows that counsel failed to adequately investigate

or prepare for trial, we will presume counsel's decision was strategic. Id.

       To succeed on a voluntary intoxication theory, a defendant does not need

to present expert testimony that would show that he or she was too intoxicated to

form the requisite mental state. Gabryschak, 83 Wn. App. at 253. Instead, a

defendant may pursue a voluntary intoxication theory even if he or she elects not

to testify and rests at the close of the State's case. Id. While affirmative defense

evidence may be more effective, cross-examination of the State's witnesses alone

may be enough to persuade the trier of fact that the defendant could not form the

requisite mental state. Id.

       Here, the State's witnesses testified as to Smith's extreme intoxication in

direct examination.    In cross-examining the State's witnesses, Smith elicited

evidence about the extent of his intoxication and the effect it had on his mental


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No. 76742-9-1/11


state. He also presented his own witness, Collins, who testified as to Smith's level

of intoxication. And, Smith testified on his own behalf. He stated that he was so

intoxicated on the night in question that his memory of the night is incomplete. He

testified that he has no independent recollection of anything that happened after

he walked into the house.

       Counsel elicited evidence of Smith's intoxication from State witnesses, a

defense witness, and Smith. Smith has not identified any omitted fact witness that

should have been called. Washington courts do not require expert evidence to

prevail on a voluntary intoxication theory. Counsel deciding not to pursue expert

evidence in light of that fact was a legitimate strategy even if unsuccessful. Nothing

in the record suggests that counsel did not adequately prepare for trial. Therefore,

Smith has not met his burden of showing that counsel's performance was deficient.

       We affirm.




WE CONCUR:



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