       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                 No. 68746-8-1


                     Respondent,                     DIVISION ONE

              v.



ROBERT MICHAEL FREEDMAN,                             UNPUBLISHED


                     Appellant.                      FILED: September 16. 2013




       Cox, J. - Robert Freedman challenges the deadly weapon enhancement

portion of his judgment and sentence for second degree assault, claiming there

was insufficient evidence to find that the aluminum bat he used in the assault

qualified as a deadly weapon. In his Statement of Additional Grounds, he argues

that he received ineffective assistance of counsel. We disagree with both claims

and affirm.
                                                                                            o



       Freedman and Anthony Lemon worked together for a number of years bs
                                                                                 m
                                                                                 -c
longshoremen. One day in August 2011, both men left work around the same—
                                                                                 en
                                                                                          T>-7' •-

time in their vehicles. Freedman testified that he wanted to talk to Lemon aboBJ

a recent incident at work.                                                           CD   (•-)-•   -




       At a stoplight on Elliott Avenue in Seattle, Freedman got out of his car and

walked to the driver side window of Lemon's van. A UPS truck driver, who was

stopped behind Freedman's car, testified that it appeared that Freedman and

Lemon were in a verbal argument. At one point, Lemon got out of his van and
No. 68746-8-1/2



Freedman went back to his car to grab an aluminum bat. The men eventually got

back into their vehicles and drove into a nearby parking lot.

       In the parking lot, an eyewitness called 911 when he saw Freedman get

out of his car with an aluminum bat and approach Lemon. This witness testified

that Freedman struck Lemon approximately six times with the bat before law

enforcement arrived on the scene.

       Lemon testified that he suffered welts and bruises, and he had to go to the

emergency room because of pain and swelling. He also had to see a surgeon

because of a torn bicep muscle.

       The State charged Freedman with second degree assault. It also alleged

the Freedman used a deadly weapon for the purpose of a deadly weapon

enhancement.

       A jury convicted Freedman as charged, including the deadly weapon

allegation.

       Freedman appeals.

                       DEADLY WEAPON ENHANCEMENT

       Freedman argues that the deadly weapon enhancement must be reversed

because the evidence was insufficient to establish that the aluminum bat

qualified as a deadly weapon. We disagree.

       Evidence is sufficient to support a conviction if, viewed in the light most

favorable to the State, it permits any rational trier of fact to find guilt beyond a

reasonable doubt.1 "A claim of insufficiency admits the truth of the State's


       1State v. Salinas. 119Wn.2d 192, 201, 829 P.2d 1068(1992).
No. 68746-8-1/3



evidence and all inferences that reasonably can be drawn therefrom."2 Matters
pertaining to credibility of witnesses, conflicting testimony, and persuasiveness of

the evidence are the exclusive province of the fact finder.3

         For a deadly weapon allegation, the State must prove that an "implement

or instrument. . . has the capacity to inflict death and from the manner in which it

is used, is likely to produce or may easily and readily produce death."4 Whether

a weapon is deadly is a question of fact that the State must prove beyond a

reasonable doubt.5

         Here, there was sufficient evidence that the weapon used in this case had

"the capacity to inflict death."6 Eyewitness, Thomas Fleischer, testified that he
saw Freedman use an "aluminum baseball or softball bat" to strike Lemon.

Common sense supports the view that an aluminum bat has the capacity to inflict

death.


         Additionally, we note that such a bat is sufficiently similar to a "metal pipe

or bar used or intended to be used as a club," which would make it a deadly

weapon as a matter of law.7


         2kL
         3 State v. Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

         4RCW9.94A.825.

         5 State v. Tongate. 93 Wn.2d 751. 753-55, 613 P.2d 121 (1980).

         6RCW9.94A.825.

         7See id. ("The following instruments are included in the term deadly
weapon: Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any
dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer
No. 68746-8-1/4



       In sum, the jury properly determined that the aluminum bat used in this

assault had the "capacity to inflict death."8
       The remaining question is whether there was substantial evidence that the

manner in which Freedman used the bat "[was] likely to produce or [could have]

easily and readily produce[d] death."9 We conclude there was such evidence.
       Fleischer, the eyewitness, observed Freedman deliver three "quick" strikes

with the bat. For the first strike, Freedman used two hands on the bat and hit

Lemon in the ribs or abdomen with a force that made Lemon move "backwards."

Fleischer testified that Freedman quickly hit Lemon two more times with the bat

in the abdomen using one hand. In total, Fleisher testified that Freedman hit

Lemon six times with the bat though the last three strikes did not look as forceful

as the first three.

       Lemon testified that before Freedman started swinging the bat he said he

was going to "teach [Lemon] a lesson." He also testified that Freedman "tried to

hit [him] in the head," but Lemon was able to block him from doing so.

        As noted above, Lemon testified that he suffered welts and bruises. He

also stated that he had a torn bicep muscle.

       Taking this evidence in the light most favorable to the State, there was

sufficient evidence presented for a rational finder of fact to decide that the

than three inches, any razor with an unguarded blade, any metal pipe or bar
used or intended to be used as a club, any explosive, and any weapon
containing poisonous or injurious gas.") (emphasis added).

       8 See id.

       9 Id.
No. 68746-8-1/5



manner in which Freedman used the bat could have "easily and readily

produce[d] death."10

       Freedman argues that the State presented "no evidence of the bat's

capacity to inflict actual death." He points out that the State "did not introduce

expert or other testimony regarding how such a bat could be used to inflict actual

death." As we already discussed, the capacity of the aluminum bat to inflict

death is well supported by the evidence. And, as the State points out, Freedman

does not cite any authority requiring an expert witness to testify about an

instrument's capacity to inflict death. This is particularly apparent where the jury

could assess whether the bat had the required capacity without expert testimony.

       Freedman also contends that the evidence did not show that the manner

in which he used the bat was "likely to produce or may easily and readily produce

death."11 He points to his testimony that he never tried to hit Lemon in the head

and he avoided hitting him in the head because "he did not want to inflict serious

injury." But, as discussed above, Lemon testified that Freedman tried to hit him

in the head with the bat. We do not review the jury's credibility determinations on

appeal.12
       Freedman also highlights the fact that Lemon did not testify that he

"fear[ed] for his life" during the altercation. But absence of this type of testimony



       10lcL
       11
            Brief of Appellant at 11-12 (citing RCW9.94A.825).

       12 Recreational Equip., Inc. v. World Wrapps Nw.. Inc., 165 Wn. App. 553,
568, 266 P.3d 924 (2011).
No. 68746-8-1/6



is irrelevant to the jury's charge. Rather, the jury properly determined, based on

the evidence before it, that Freedman was armed with a deadly weapon when he

committed the crime.


       In sum, the State presented sufficient evidence for a rational finder of fact

to conclude that Freedman was armed with a deadly weapon when he assaulted

Lemon.


                   STATEMENT OF ADDITIONAL GROUNDS

       In his statement of additional grounds, Freedman raises one issue. He

argues that his counsel was ineffective for not calling any character witnesses to

testify about Freedman's reputation for "peacefulness." This argument is not

persuasive.

      To prevail on a claim of ineffective assistance of counsel, a defendant

must show that his counsel's performance fell below an objective standard of

reasonableness and that the deficient performance prejudiced his trial.13 The
reasonableness inquiry presumes effective representation and requires the

defendant to show the absence of legitimate strategic or tactical reasons for the

challenged conduct.14 Failure on either prong defeats a claim of ineffective
assistance of counsel.15



       13 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).

       14 McFarland. 127 Wn.2d at 336.

       15 Strickland. 466 U.S. at 697; State v. Foster. 140 Wn. App. 266, 273, 166
P.3d 726 (2007).
No. 68746-8-1/7



       Here, Freedman fails to show that his counsel's decision not to call any

character witnesses was objectively unreasonable. Freedman's counsel

explained to the trial court that he was not calling any character witnesses to

testify as to Freedman's reputation for peacefulness because it was not disputed

that the physical altercation occurred. Rather, Freedman asserted that he acted

in self-defense. Because Freedman fails to establish deficient performance, we

need not reach the question of prejudice.

       We affirm the judgment and sentence.
                                                            ^bx^T

WE CONCUR:
