                                                                           July 11,2013

                                                                  l a the Office of the Clerk o f @ o ~ r L
                                                                W A State C o u r t of Appeals, Division 111




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          1
                                              1         No. 30341-1-111
                     Respondent,              1
                                              1
       v.                                     1
                                              1
JOSHUA CHARLES DONLEY,                        1         UNPUBLISHED OPINION
                                              1
                     Appellant.               1
       SIDDOWAY, -Joshua Donley appeals his conviction of second degree assault.
              J.

He argues that there was insufficient evidence of the required element of intent in light of

undisputed evidence he was voluntarily quite intoxicated and his testimony that he has no

memory of the assault. As pointed out by the State, however, the victim, a witness, and

responding officers all testified to seeiningly deliberative action on his part. The

evidence was sufficient to support the element of intent. For that reason and because Mr.

Donley raises no viable challenges in a statement of additional grounds, we affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       On an evening in late July 2009, Cynthia C. and a male friend with whom she was

then living stopped for drinks at the Uptown Bar in Richland. Ms. C. and her roominate

began speaking with Mr. Donley, another patron of the bar, who was friendly and bought
No. 30341-1-117
State v. Donley


them the first round of drinks. Ms. C. and Mr. Donley drank and visited for several hours

before deciding to travel to another bar, Lee's Tahitian, for more drinks. Ms. C. would

later testify that by the time the two left the Uptown Bar she had "a good buzz" and she

and Mr. Donley were both "pretty drunk." Report of Proceedings (RP)at 30-3 1. Ms.

C.'s housemate later joined them at Lee's.

       Whilc at Lee's, Mr. Donley proposed that he and Ms. C. leave and go to his house;

Ms. C. declined but countered with an invitation to her place. The three left the bar, with

Ms. C.'s rooin~nate
                  driving home and Ms. C. and Mr. Donley planning to walk thc 8 to

10 blocks to her house. Both had difficulty walking due to their inebriation and at one

point, Ms. C. attempted to give Mr. Donley a piggyback ride. During the walk, Ms. C.

asked Mr. Donley to carry her driver's license and food stamp card in his \vallet because

she had no pockets. Part way to the house, they were offered and accepted a ride.

       Once at her home, Ms. C. told Mr. Donley that she was going to change from a

dress into jeans. When he came looking for her in her bedroom, he found her topless,

without her jeans on, sitting on the lap of her reclining roommate. She would later testify

that Mr. Donley "got kind of perturbed and was confused probably as to what was going

on." RP at 36. He left. She dressed and followed him outside and down the sidewalk to

retrieve her driver's license and food stamp card.

       Ms. C. caught up with Mr. Donley at the comer and asked for her cards. Ile

fun~bled his wallet but was having troublc finding her cards, at which point she told
       for
No. 30341-1-111
State v. Donley


him, "'if you don't mind, I'll get it myself,'" and took her driver's license from his

wallet. Id. at 39. Mr. Donley immediately yelled, "'Bitch, give me my shit.'" Id Ms.

C. held up her driver's license and said, "'That's not you. You're not a pretty blond girl,

and your narne's not Cindy.'" Id. At that point, Mr. Donley hit her. She fell and

chipped her tooth on the asphalt.

       Mr. Donley dropped on top of her, put her into a chokehold, and eventually got her

into the front yard of a nearby home. Ms. C. assumed she lost consciousness at some

point. She testified that he continued to eholte her, repeatedly hit her, pulled her jeans

down to mid-thigh and attempted to rape her.

       As the assault was occurring, a stranger, Natalie McGuffin, drove by and saw

them, initially assuming that they were just "horsing around." Id. at 97. When she saw

in her rearview mirror that Mr. Donley was striking Ms. C., though, she made a U-turn,

returned to where the two were and asked, "'[Wjhat the hell are you doing?'" Id. Mr.

Donley replied, "'Stay out of it or I will kill you.'" Id. Ms. McGuffin did not have a cell

phone, so she drove to the nearby home of a friend and called police. When police

arrived, Mr. Donley immediately rolled off of Ms. C. and asked, "'Where'd the Mexican

go? Where'd the Mexican go?"' Id, at 43.

       Mr. Donley was arrested and later charged with attempted rape in the first degree,

attempted rape in the second degree, and second degree assault with sexual motivation.
No. 30341-1-111
Slate v. Donley


       At trial, Mr. Donley testified that he began drinlting at the Uptown Bar at around

11 a.m. He consu~ned six-pack of beer while watching boat races on television and
                   a

then switched to hard liquor. Ile remembered meeting Ms. C.'s roommate first, being

introduced to Ms. C. by her roommate, flirting with her, and moving on to the second bar.

He testified that beginning with events at the second bar his recollection "[sltal-ted getting

hazy." RP at 135. He claimed to have no recollection of going to Ms. C.'s home or

virtually any other event that followed that evening. Aside from remembering that

Ms. C. at one point aslced for "an ID or something out of [his] wallet," Mr. Donley

testified that his memory was a "pretty good blank." Id. at 138-39.

       The trial court instructed the jury that it could consider the possible relevance of

Mr. Donley's voluntary intoxication to his ability to form the intent required for second

degree assault. The jury nonetheless found him guilty of second degree assault, although

without sexual motivation. It acquitted him of the attempted rape charges. Mr. Donley

appeals.

                                        ANALYSIS

       Due process requires the State to prove all elements ofthe crime beyond a

reasonable doubt. State v. Washington, 135 Wn. App. 42.48, 143 P.3d 606 (2006). A

person commits the crime of assault in the second degree when he or she "[i]ntentionally

assaults another and thereby recklessly inflicts substantial bodily harm." RCW

9A.36.021(l)(a). The jury was instructed that to convict Mr. Donley of the crime, one of
No. 30341-1-111
State v. Donley


the elements the State was required to prove was "[tlhat on or about July 26,2010, the

defendant intentionally assaulted [Ms. C.]." Clerk's Papers (CP) at 232 (Instruction 21).

It was instructed, "A person acts with intent or intentionally when acting with the

objective or purpose to acco~nplish result that constitutes a crime." CP at 228
                                  a

(Instruction 17); RCW 9A.08.010(l)(a).

       KCW 9 ~ . 1 6 . 0 9 0 ,provides:
                              '

       No act cornrnitted by a person while in a state of voluntary intoxication
       shall be deemed less criminal by reason of his or her condition, but
       whenevcr 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 talcen into consideration in determining such
       mental state.

The court's instructions to the jury included proposed instruction 18.10 from the

Washington Pattern Jury Instrtictions: Criminal, which explained that the jury could

consider voluntary intoxication in deciding the element of intent. CI' at 229 (Instruction



CRIMINAL
       18.10 (3d ed. 2008) (WPIC).

       "Intoxication is not a 'defense' to a crime." State v. Coates, 107 Wn.2d 882, 891,

735 P.2d 64 (1987). It may raise a reasonable doubt as to the mental state element of the

offense. Id. Where the evidence raises an issue as to the effect of a defendant's



       1
         We quote the current version of RCW 9A.16.090, which was amended by Laws
of 201 1, chapter 336, section 355 to make the language gender neutral.

                                              5
No. 30341-1-111
State v. Donley


intoxication on his ability to formulate the requisite mental state, the statute "describes

the manner in which [that] type of evidence is to be employed, in much the same way as

neutral instructions describe the use of inferences or circu~nstantial
                                                                     evidence." Id at 890.

       Voluntary intoxication is not a complete defense because one who consumes

alcohol or drugs should realize the potential effects of his or her actions. State v Wicks,

98 Wn.2d 620, 627, 657 P.2d 781 (1983) (Utter, J., dissenting). "The voluntary

intoxication statute allows the trier of fact to consider the defendant's intoxication in

assessing his mental state [but] does not require that consideration to lead to any

particular result." Coates, 107 Wn.2d at 889-90.

       Evidence is sufficient to support a co~lviction after viewing the evidence in the
                                                      if,

light most favorable to the State, any rational trier offact could have found guilt beyond a

reasonable doubt. State v Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). A defendant

challenging the sufficiency of the evidence in a criminal case admits the truth of the

State's evidence and all reasonable inferences that can be drawn from it. Id (quoting

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). The intent to commit a

crime may be inferred if the defendant's collduct and surrounding facts and

             plainly indicate such an intent as a matter of logical probability. State v
circu~nstances

Cordero, 170 Wn. App. 351,369,284 P.3d 773 (2012).

       Mr. Donley challenges the sufficiency of the State's evidence on the element of

intent where, he contends, the undisputed evidence was that he "was so intoxicated he

                                               6
No. 30341-1-111
Stale v. Donley


could not recall a thing and he snapped-a    textbook example of an alcohol blackout."

Br. of Appellant at 6-7.

       The fact that Mr. Donley cannot recall the assault is not evidence that be did not

intend to inflict great bodily harm. See State v. Thomas, 123 Wn. App. 77 1, 780-8 1, 98

P.3d 1258 (2004) (trial court properly excluded expert testimony that defendant had

experienced an alcoholic blackout leaving her with no recollection of an assault because

the blackout is not evidence that she could not forin the intent to coininit assault in the

first degree). And the jury was free to disbelieve Mr. Donley's testimony that he had no

recollection. The sufficiency of evidence therefore does not turn on his testimony

(credible or not) but instead on whether the State's evidence of his actions supported a

finding that he acted intentionally.

       The State presented evidence that Mr. Donley engaged in maneuvers that it

describes as requiring forethought, demonstrating a specific intent or goal, and being

accoinpauied by statements explaining his purpose. During Mr. Donley's chokehold of

Ms. C., she tapped his shoulder and arm bccause she could not breathe, to which he

responded, "'You're not tapping out.' . . . '[Y]ou're going night night, bitch. You're

going night night.'" RP at 41. After pulling down Ms. C.'s jeans and while attempting

to penetrate her, he stated, '"Now you're getting fucked. Now you're fucked, bitch.'"

Id. at 42. When Ms. McGuffin stopped her car and demanded to know what he was

doing, Mr. Donley stated, "'Stay out of it or I will kill you.'" Id. at 97. Finally, when
NO. 30341-1-111
State v. Donley


police arrived, he stopped what he was doing and suggested that someone else was

culpable, stating, "'Where'd the Mexican go?'" RP at 43.

       Mr. Donley had the opportunity to present evidence of his intoxication to the jury.

It was for the jury to talce that evidence into consideration in determining his mental state.

Its verdict reflects its conclusion that he did act intentionally, and the evidence is

sufficient to support it.

                       STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Donley states two. His

first is that the trial court "omit[ted] the knowledge element[,] misstat[ing] the law and

reliev[ing] the state of its burden of proof on an element of the offense." SAG at 1. The

second is that "[ilt was attorney ~nisconduct defendant's counsel to ask the state's
                                            for

main witness to not testify truthfully." SAG at 2.

       In support of his assertion that the trial court "o~nit[ted]the Itnowledge element,"

Mr. Donley assumes that the trial court should have given the definition of "knowledge"

or "knowingly" provided by WPIC 10.02, citing State v. Goble, 131 Wn. App. 194, 126

P.3d 821 (2005). Goble involved a defendant's third degree assault of a law enforcement

officer while the officer was performing his official duties. Id. at 196; RCW

9A.36.031(l)(g). At issue on appeal was the fact that the trial court had mistakenly given

an instruction that lcnowledge that the victim was a law enforcement officer was an

element of the crime. See Goble, 131 Wn. App. at 201 n.2 (pointing out that State v.
No. 30341-1-111
State v. Donley


Brown, 140 Wn.2d 456, 998 P.2d 321 (2000) established that l<nowledge of the victim's

status was not an element). Because the instruction was given by mistake it was treated

as law of the case.

       The decision in Goble, like WPIC 10.02, has no application to the charges against

Mr. Donley. Knowledge is not an elenlent of second degree assault. See RCW

9A.36.021(l)(a). There was no need to define it. The court did not err.

       In support of his assertion of attorney misconduct, Mr. Donley includes an

unexplained citation to Ms. C.'s statement to the court during Mr. Donley's sentencing.

Although Mr. Donley is not required to cite to the record in a SAG, he must inform the

court of the "nature and occurrence of alleged errors." RAP 10.10(c). There is

insufficient argument to address the second ground.

       Affirmed.

       A majority of the panel has determined that this o p i i ~ i o ~ ~ not be printed in the
                                                                    will

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.


                                                Siddoway, J.             '

WE CONCUR:

   -      I     cv-
Icorsmo. C.J.
