                                                                                                        it—ED
                                                                                               CO    T OF APPEALS
                                                                                                    of v' ISP( 1l4

                                             2013 DEC 3 a AH 9: 15
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                             S 4ATE OF WASHINGTON
                                                     DIVISION II                              By
                                                                                                      DE      TY
STATE OF WASHINGTON,                                                                 No. 43235 -8 -II


                                          Respondent,


           V.



MAXIMUS DWAYNE MASON,                                                         UNPUBLISHED OPINION




           HUNT, J. —     Maximus Dwayne Mason appeals his jury trial convictions for second degree

assault,    first degree       criminal   trespass, harassment,         and   third degree     malicious    mischief.     He


argues     that ( 1)   his trial counsel provided ineffective assistance in failing to object to the jury

instruction     defining " recklessness,"       which he asserts misstated the law and relieved the State of


its burden      of   proving   an essential element of second          degree   assault; (   2) the charging information

omitted     the " true threat"      element of harassment; and ( 3) the trial court erred in excluding as .

irrelevant two         photographs   that   showed   he   and   the    victim were still on affectionate         terms.   We


affirm.



                                                          FACTS


                                                     I. THE CRIMES


           Maximus Dwayne Mason                and   CM1 married in 1998; they had two children together.

They     separated      in November 2010        and moved       into   separate   nearby houses.       When Mason was




1
    Because the original charges involved allegations of a sexual nature, we use CM' s initials to
protect    her privacy.
No. 43235 -8 -II



evicted in April 2011, CM let, him move in to her home for a few weeks, during which time they

shared    CM' s bed.    According to CM, she had no intention of reconciling with Mason, but he

tried to reconcile with her.


          A few   weeks     later, Mason       and   CM had        an altercation.   CM told their children not to let


Mason inside.        But Mason kicked down CM' s front door, entered her home, pushed CM, and

questioned her about where and with whom she had spent the evening. CM told Mason to leave.

Mason moved in with a friend, taking with him his smaller personal items and leaving his larger

property at CM' s house and in her garage; according to CM, Mason may have had a key to her
garage,   but he did    not   have   a   key   to her house.             CM no longer permitted Mason to enter her


home without her permission and told him he could not come by unannounced.

          Soon thereafter, CM began            dating      Terrell ( Maurice) Taylor.      On the evening of May 4,

Taylor    and   CM   were   in CM'   s   bedroom      having       sex.    Hearing the dog bark, CM looked outside,

saw   Mason " storming" toward the house,                       and    warned    Taylor that Mason   was   outside.   2


Verbatim Report        of   Proceedings ( VRP)             at   95.      Mason kicked open the front door, entered


carrying    a gun, and approached         CM in the             living   room.   Taylor ran out of the house, hearing

someone tell him not to get into his car.


          Inside the house, Mason threw CM' s cellular telephone to the floor, grabbed her by the

neck, pulled off two of her necklaces, and pushed her into the kitchen wall so hard that her head

made a "    depression" in it. 4 VRP           at   330.    According to CM, she briefly lost consciousness and

awoke on     the kitchen floor.      When she got up to look for Taylor, she found no one in the living

room or in her bedroom. Still carrying the gun, Mason returned to the front door; pulled her hair;




                                                                   2
No. 43235 -8 -II


                                                                                                                                           2;
 grabb[ ed]"       her; "   shov[ ed]    her; "    curs[ ed]"        at    her; told her, "` I        should    kill    you right now "'




grabbed and dragged her by her hair; hit her on the side of her face; picked her up; threw her on

her bed 3;   and hit her once with a fraternity paddle.
           Still   holding     the   gun,    Mason        pulled      CM       outside       toward    her    car.      When CM started


screaming, Mason took her back inside the house                                and   then    went outside alone.          CM grabbed her

                                                                                9114

cellular   telephone,       went upstairs, and started               to call            when Mason returned with the gun and


started   to "   rambl[ e]."    2 VRP       at   125.    Alerted by the dog' s bark and still holding the gun, Mason

opened     the front door,      saw     that the       police were         there, "   screamed," "         slammed" the door shut, and


ran    into the bedroom. 2 VRP               at   67.    When an officer knocked, Mason, now unarmed,5 opened

the door, and officers took him into custody.

           When the officers entered the house, they found CM inside " very scared" and crying; the

left   side of     her face    was "    severely       swollen"       and      her hair      was    in "   disarray," as if "it had been

pulled on or grabbed."               3 VRP        at   273.    The officers took CM to the hospital, where she was


examined         in the emergency        room and someone                  took   photographs of            her face.    CM also suffered


bruising to her forearms, left knee, ankles, left thigh, and left ear; she was diagnosed with

    concussion      syndrome"        and a cervical           sprain.       3 VRP       at   211.     The facial bruising lasted two

weeks.




2 2 VRP at 105, 107.

3
    According       to CM, Mason          also     raped      her.        The jury, however, later found that the State had
failed to prove this charge beyond a reasonable doubt.

4 An officer later testified that the call did go through.

5 Officers later found the gun under a bedroom dresser.




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No. 43235 -8 -II



                                                         II. PROCEDURE


         The State charged Mason with first degree burglary, unlawful imprisonment, felony

harassment,     second      degree      assault     of   CM, 6   third degree malicious mischief, and witness

tampering. 7    The case proceeded to a jury trial.

                                                         A. Testimony

         The State'      s witnesses    testified   as   described    above.   8 Mason testified that after he moved

back into CM'      s   house,   they occasionally          engaged    in   sexual relations.        He characterized their


relationship    as a "             forth" relationship.
                         back- and -                              5 VRP     at   401.   He had wanted to maintain the


relationship, but CM had wavered between wanting to continue the relationship and wanting to

end it. Because they had been arguing, he decided to leave and had moved out in April 2011 so

they   could " cool off' and " give each other a             break "; he had kept        a   key   to the house.   5 VRP at


403.    Mason admitted that he had broken the front door before he moved out, but he denied


having kicked it in and claimed that he had broken the door when he ran into it while playing

with his sons and the family dog.

6 The State also charged Mason with first degree rape, but the jury acquitted him of that charge.
The State originally charged Mason with second degree assault with a deadly weapon or, in the
alternative, second degree assault based on the reckless infliction of substantial bodily harm.
Before instructing the jury, the trial court dismissed the deadly weapon alternative means of
committing second degree assault, leaving intact only the intentional assault /recklessly inflicting
substantial bodily harm alternative means.
7
    The State   also     alleged   that ( 1)
                                 other than the witness tampering offense, each offense was a
domestic violence offense; and ( 2) other than the third degree malicious mischief and witness
tampering      offenses,    Mason had          committed     each offense while         armed with      a   firearm.   Mason

does not challenge either the resultant domestic violence findings or the firearm sentencing
enhancements.


8
    At time of trial, Mason and CM were still married.




                                                                 21
No. 43235 -8 -II


            Mason further testified that he had                   returned     CM'      s car on    May    4   and was "       going around


the side of the house" to check on the house and his belongings in the garage " like [ he] always

 did]." 5 VRP         at   410. When he        saw    CM     having      sex with       Taylor, he ( Mason) " turned and headed


towards the         front door," planning to "          confront [           CM]    and      Mr. Taylor."      5 VRP      at   415.   Mason


testified that he had unlocked the door with his key, but he admitted that when a security chain

kept the door from opening, he had "                  pushed"          the   door   open with      his   shoulder.      5 VRP 415.       CM


was behind the door when it flew open, and the door hit her in the face.


            Mason also admitted to having ( 1) told Taylor not to access his car and to come back for

it later because he ( Mason) did               not want      to   risk   Taylor'    s   having     a gun   in the   car; (   2) argued with


CM; ( 3) pushed CM into the kitchen wall hard enough that her head left a dent in the wall,

                                                        9                                                               belongings10; (

because CM          was "   getting in his way "            as    he   attempted        to   collect some of      his                      4)


ripped      two   necklaces off        CM' s   neck; (      5) broken CM' s             cellular   telephone; (     6) kept a gun in his


back pocket during most of the incident; and ( 7) placed the gun under the bedroom dresser

before he knew the            police    had    arrived.       Mason denied, however,                 having ( 1)        grabbed or struck




CM, ( 2) threatened to kill CM                 or   threatened Taylor, ( 3)             noticed that CM had lost consciousness


after   her head hit the kitchen          wall, (     4) removed the gun from his back pocket except for placing

it   on a   table   when    he   and   CM had        calmed       down       and were        sitting in the    living   room     talking, ( 5)




9
     5 VRP at 423.


10 Mason testified that he had merely pushed her in the chest with one hand.



                                                                         5
No. 43235 -8 -II



had the   gun   in his hand    when     he   opened   the front door   and saw   the   police,   11 or ( 5) hidden the

gun after seeing the police.

                                         B. Motion To Exclude Evidence


          After the State' s final witness, the State moved to exclude two photographs depicting

Mason and CM in affectionate poses during Mason' s December 20, 2010 birthday party, which

photographs      Mason had just disclosed to the State.          The trial court granted the State' s motion


because ( 1)     the photographs were not relevant because they had been taken several months

before the incident; and ( 2) Mason had not timely disclosed the photographs, which untimeliness

caused    additional      problems, (   a) admitting the photographs might require the State to present

additional rebuttal testimony, from which the jury might wrongfully infer that the State had

failed to disclose the photographs, and ( b) no lesser sanction for the untimely disclosure was

adequate.




                                                C. Jury Instructions

          The trial court' s second degree assault " to convict" instruction stated:


                   To convict the defendant of the crime of assault in the second degree as
          charged in count V, each of the following elements of the crime must be proved
          beyond a reasonable doubt:
                    1)     That on or about May 4, 2011, the defendant intentionally assaulted
          C. M.;
                    2)    That the defendant thereby recklessly inflicted substantial bodily harm
          on   C. M.;    and

                    3)    That this act occurred in the State of Washington.
                   If you find form the evidence that each of these elements has been proved
          beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.




11 Instead, Mason claimed that he had been holding some black lingerie that he had purchased for
CM.




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No. 43235 -8 -II



                      On the       other    hand,     if, after weighing all the evidence, you have a
            reasonable doubt as to any one of these elements, then it will be your duty to
            return a verdict of not guilty.


Clerk' s Papers ( CP)         at   197 (   Jury   Instruction 40) (       emphasis added).     The court also defined the


term " recklessly" as follows:

                    A person is reckless or acts recklessly when he or she knows of and
             disregards a substantial risk that a wrongful act may occur and this disregard is a
             gross deviation from conduct that a reasonable person would exercise in the same
             situation.

                      When recklessness as to a particular result is required to establish and
             element of a crime, the element is also established if a person acts intentionally or
             knowingly as to that result.

CP     at    199 (   Jury   Instruction 42) (       emphasis        added).     Mason neither objected to these jury

instructions nor proposed alternative wording.

                                             D.   Closing Arguments and Verdict

             In closing, the State         argued     that ( 1)   Mason had " recklessly inflicted substantial bodily

harm"       on   CM   when    he hit her in the face,        pushed       her head " through the    wall,"   and put his hands


on   her throat; ( 2)       the assault had disfigured CM' s face and had give her a concussion; and ( 3)

 the    assault was more           than    reckless    infliction   of    harm, but that it   was   intentional."   6 VRP at


564.        In his closing argument, Mason admitted that he had committed fourth degree assault by

pushing CM into the kitchen                 wall.   But he argued that CM' s face was bruised because the door


hit her in the face and that a concussion did not amount to " substantial bodily harm" because it

did not result in disfigurement.




                                                                     VA
No. 43235 -8 -II



         The jury found Mason guilty of the lesser included offense of first degree criminal

trespass, the lesser included               crime    of    harassment, second degree assault, and third degree


malicious mischief.        12 Mason appeals these convictions.

                                                            ANALYSIS


                1. INEFFECTIVE ASSISTANCE OF COUNSEL: RECKLESSNESS INSTRUCTION


         Mason first argues that his trial counsel provided ineffective assistance in failing to object

to the trial    court' s   jury      instruction     defining "      recklessly."        He contends that this instruction


misstated the law and relieved the State of its burden of proving an essential element of second

degree   assault.      More specifically, he argues that the instruction should have referenced his

knowledge of and disregard of a substantial risk of inflicting substantial bodily harm, rather than

a substantial risk that a " wrongful act" may occur. 13 Br. of Appellant at 13.
                                                    A. Standards of Review


         To prove ineffective assistance of counsel, Mason must show both that ( 1) his counsel' s


performance was         deficient,     and (   2) this deficient      performance prejudiced           him. State v. Thomas,


109 Wn.2d 222, 225 -26, 743 P. 2d 816 ( 1987) (                     quoting Strickland v. Washington, 466 U. S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)).                         To establish deficient performance, he must


demonstrate that his          counsel' s actions         fell below    an objective standard of reasonableness.               State


v.   Townsend, 142 Wn.2d 838, 843 -44, 15 P. 3d 145 ( 2001).                             To demonstrate prejudice, Mason



12 The jury returned special verdicts finding domestic violence and firearm possession, which are
not   before   us   in this   appeal.       The   jury    also   found Mason not guilty          of ( 1)   first degree   rape, (   2)
first degree        burglary    or    the    lesser included          offense    of   residential     burglary, (   3)    unlawful

imprisonment, ( 4)       felony harassment, and ( 5) witness tampering.
13
     Mason does      not argue    that   we can review           this issue   directly   under   RAP 2. 5(   a).
No. 43235 -8 -II



must demonstrate a reasonable probability that the outcome would have been different absent the

deficient    performance.      Townsend, 142 Wn.2d              at    844.    Because we hold that Mason fails 'to


demonstrate prejudice, we do not address the first, deficient performance prong of the test.

           We review challenged jury instructions de novo. State v. Levy, 156 Wn.2d 709, 721, 132

P. 3d 1076 ( 2006).        Jury instructions must inform the jury that the State bears the burden of

proving each essential element of a criminal offense beyond a reasonable doubt. State v. Peters,

163 Wn.      App.   836, 847, 261 P. 3d 199 ( 2011).                It is reversible error " to instruct the jury in a

manner"     that   would relieve    the State    of   this burden.       State v. Pirtle, 127 Wn.2d 628, 656, 904


P. 2d 245 ( 1995),    cert.   denied, 518 U. S. 1026 ( 1996).                As   a general rule, "   jury instructions are

sufficient when, read as a whole, they accurately state the law, do not mislead the jury, and

permit each     party to   argue   its theory    of   the   case."    State v. Teal, 152 Wn.2d 333, 339, 96 P. 3d


974 ( 2004).


                                                  B. No Prejudice


           To establish prejudice here, Mason must demonstrate a " reasonable probability" that the

trial' s   outcome ( a   verdict   of   guilty   on    the   second     degree      assault    charge)   would have been


different had the trial court instructed the jury that a person acts recklessly when he knows of and

disregards     a substantial risk   that   substantial       bodily harm      may     occur.    Townsend, 142 Wn.2d at


844. " Reasonable probability"          means "       sufficient to undermine the confidence in the outcome."


Strickland, 466 U.S. at 694. We hold that Mason does not establish prejudice.




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No. 43235 -8 -II



             The trial court' s " to convict" instruction specifically required the jury to find that Mason
                                                                                   14
had " recklessly inflicted        substantial   bodily      harm     on   C. M, "       thus, relating the " wrongful act" of

                                                   15 (
the "   reckless"   definitional instruction              slamming CM' s head into the wall and hitting her in the

face) to the "      substantial   bodily    harm"         element    of second          degree    assault   set   forth in the " to


convict" instruction. 16 Even if the trial court had instructed the jury that it must find that Mason

knew of and disregarded a substantial risk that his actions may cause substantial bodily harm,

there is no reasonable probability that the jury would have rendered a different verdict because

the evidence was uncontroverted that Mason slammed CM' s head into the wall hard enough to

leave    a   dent in the   wall and   to   cause    CM to lose        consciousness.         Any reasonable person would
                                                                                                                                  17
understand        that this type    of physical           force is   likely   to    result   in    substantial     bodily harm.

Because Mason fails to show that there is a reasonable probability that the outcome of the trial

could have been different had the trial court given the instruction that he now advocates the trial

court should have given, he does not establish prejudice; and his ineffective assistance of counsel

claim fails. Townsend, 142 Wn.2d at 844.



14
     CP at 197 ( Jury Instruction 40).
15
     CP at 199 ( Jury Instruction 42).
16
     CP at 197 ( Jury Instruction 40).

17 RCW 9A.04. 110 defines substantial " bodily harm" as follows:
       Substantial bodily harm" means bodily injury which involves a temporary but
             substantial disfigurement, or which cause a temporary but substantial loss or
             impairment of the function of any bodily part or organ, or which causes a fracture
             of any bodily part.
A loss of consciousness is clearly a temporary but substantial loss or impairment of the function
of any bodily part.




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No. 43235 -8 -II



                                                      II. INFORMATION


          Mason next argues that the information was deficient because it omitted the " true threat"

element of      harassment.        Br.   of   Appellant   at   20.    We disagree.   In State v. Allen, 18 our Supreme

Court held that " true threat" is not an essential element that the State is required to include in the

information and that a charging document alleging felony harassment is sufficient if it alleges

that the defendant         knowingly        threatened the      victim.    176 Wn.2d 611, 627, 630, 294 P. 3d 679


 2013).        Here, the information specifically alleged that Mason knowingly threatened CM.19
Thus, under Allen, the information was sufficient.

                                              III. EXCLUSION OF PHOTOGRAPHS


          Finally, Mason argues the trial court erred in excluding two photographs on grounds that

they were not relevant and not timely provided in discovery. Holding that the trial court did not

err in ruling that the photographs were irrelevant, we do not address the trial court' s alternative

discovery violation ground for excluding them.

          We     review     a   trial   court' s   admission    of evidence    for   abuse   of   discretion.   Pirtle, 127


Wn.2d     at   648. "`    A trial court abuses its discretion when its decision is manifestly unreasonable

or   based   upon untenable grounds. "'             State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 ( 1997)



18 Our Supreme Court filed Allen a few weeks after Mason filed his opening brief in this appeal.
19
     The information stated in part:
                    That MAXIMUS DWAYNE MASON, in the State of Washington, on or
          about     the    4th    day    of   May,    2011,     without    lawful authority,      did unlawfully,
          knowingly threaten C. M. to cause bodily injury, immediately or in the future, to
          that person or to any other person, and by words or conduct place the person
          threatened in reasonable fear that the threat would be carried out[.]
CP at 21 ( emphasis added).




                                                                     11
No. 43235 -8 -II



 quoting Havens            v.   C &D Plastics, Inc., 124 Wn. 2d 158, 168, 876 P. 2d 435 ( 1994)),                       review




denied, 133 Wn.2d 1019 ( 1997).                   Generally, we give deference to the trial court' s exercise of its

discretion in       regard      to evidentiary     matters.    See State v. French, 157 Wn.2d 593, 605, 141 P. 3d


54 ( 2006) ( citing State          v.   Luvene, 127 Wn.2d 690, 706 -07, 903 P. 2d 960 ( 1995)).             Mason has the


burden       of   proving       abuse    of   discretion.    State v. Hentz, 32 Wn. App. 186, 1.90, 647 P.2d 39

 1982), rev' d on other grounds, 99 Wn.2d 538, 663 P. 2d 476 ( 1983).


         The trial         court      excluded    these     photographs —    of Mason and CM sharing affectionate

moments several months                  before the   May     4 incident —because     they were not relevant under ER

401.    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.    5D 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. 2d 598 ( 1985)).        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. 2d 15 ( 1999), review denied, 138 Wn.2d 1014 ( 1999).


The     threshold         for evidentiary         relevance    is   low: "    Even minimally relevant evidence is

admissible."            State v. Darden, 145 Wn.2d 612, 621, 41 P. 3d 1189 ( 2002).


             Mason argued to the trial court that these photographs were admissible because they

showed that, despite their separation and CM' s claim that she was finished with the relationship

as early as November 2010, he and CM were still on affectionate terms when these photographs



                                                                    12
No. 43235 -8 -II


were     taken the   following    month       in December 2010.           But the incidents at issue here occurred


several months later, in May 2011, well after the photographs were taken and well before CM

made     Mason   move out of      the    family     home in April 2011.        Furthermore, CM never claimed that


she did not still have an affectionate relationship with Mason; on the contrary, her own testimony

established   that   they   shared a    bed   as   late   as   April 2011. Thus, these December 2010 photographs


were both merely cumulative and irrelevant to their relationship status as of May 2011, the time
                                        20
of   the incident    at   issue here .        Deferring to the trial court' s exercise of discretion in making

evidentiary rulings, we hold that the trial court did not abuse its discretion when it excluded this

evidence.




          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

2. 06. 040, it is so ordered.




                                                                          J.
We rnnnnr-




20 We also disagree with Mason' s assertion these photographs were relevant to whether CM had
given him a key to her house. We see no abuse of discretion by the trial court in rejecting his
argument that photos showing him and CM being affectionate during his birthday celebration
were relevant to whether CM was or was not willing to give Mason a house key several months
later.




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