                                                                                 FILED 


                                                                          October 17,2013 


                                                                   In the Office of the Clerk of Court 

                                                                  WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DMSION THREE 


STATE OF WASHINGTON,                            )
                                                )         No. 30630-5-III
                      Respondent,               )         (consolidated with
                                                )         No. 31530-4-III)
       v.                                       )
                                                )
DANIEL FARIAS,                                  )
                                                )         UNPUBLISHED OPINION
                      Appellant.                )

       SIDDOWAY, J. - Daniel Farias was convicted of a first degree assault of his

mother. He argues on appeal that he was denied due process and the right to present a

defense when the trial court refused to instruct the jury on the potential relevance of

voluntary intoxication to the element of intent. Mr. Farias has no recollection of the

assault, however, and can offer no direct or medical evidence of his level of intoxication

or its effect on him at the time the assault occurred. At best, he presented evidence of the

possibility that he consumed enough alcohol to have rendered him too intoxicated to form

the intent to inflict great bodily harm.

       Where there is no evidence that a defendant was incapable of forming the required

intent but only the possibility, the proper basis for submitting that possibility to the jury is
Nos. 30630-5-111; 31530-4-111
State v. Farias


with instruction and argument on the State's burden of proof. The burden of proof was

instructed and argued here. We find no error and affirm.

                      FACTS AND PROCEDURAL BACKGROUND

       On the afternoon of January 3, 2011, Daniel Farias, an admitted alcoholic who had

just completed a year of outpatient treatment for his addiction, started drinking around

3 p.m. while running errands with his girl friend. He figured he had been doing well and

could have just one beer. He bought a 40-ounce bottle of beer and drank it fast. He then

bought another 40-ounce bottle and drank most of that on the way to the home of his

sister, Cecilia Williams, where he and his girl friend planned to watch movies with Ms.

Williams and her children. Upon arrival at Ms. Williams's home, he sat in the car to

finish the beer before going inside. Mr. Farias would later testify to only fuzzy memories

from that point on.

       He did not stay long at his sister'S; he left, without his girl friend, to run an errand.

He was later dropped off at the home of his nephew, Martin. He might have arrived at

Martin's house with beer. He stayed there for a few hours, and then, at about 11 p.m.,

Martin drove him to the grocery store to buy more beer.

       The night manager at the grocery store, concluding that Mr. Farias was drunk,

refused to sell him alcohol. The manager would later testify that Mr. Farias was being

obnoxious; he smelled of alcohol and, when told he could not buy beer, he shouted and




                                               2

Nos. 30630-5-III; 3 I 530-4-II1
State v. Farias


made threats. After he left, the manager called the police to report the incident and Mr.

Farias's condition.

       Martin then drove Mr. Farias to a gas station where Mr. Farias was able to

purchase a 12-pack of beer. As Mr. Farias came out of the station, he encountered two

police officers responding to the disturbance call from the grocery manager. They spoke

to him about the call and satisfied themselves that Mr. Farias was not driving. One of the

officers would later testify that Mr. Farias was acting "slightly animated," his voice was

slurred, and he smelled of alcohol, from which the officer concluded that he was

intoxicated. Report of Proceedings (RP) at 386. Mr. Farias was able to understand and

answer their questions, though, was not staggering or stumbling, and the officers watched

him walk to his nephew's vehicle, open the door, and get into the passenger's side

without assistance. The officer who later testified described Mr. Farias as cooperative

throughout their interaction.

       Martin evidently dropped Mr. Farias off at Ms. Williams's house, but the family

had long since finished watching movies. Ms. Williams stopped him as he entered, drunk

and carrying a 12-pack, and told him he could not stay. She drove him back to the

mobile home of their mother, Maria Farias, with whom Mr. Farias had been living for

about eight months.

       Mr. Farias later testified that upon arriving home, he went inside and turned on the

television. According to him, his mother opened her bedroom door and asked ifhe was

                                             3

Nos. 30630-5-III; 31530-4-III
State v. Farias


staying the night, which he said he was. She commented on the fact that he was drinking,

to which he responded, '''Yeah, it's alright. It'll be okay.'" RP at 434. When he awoke

the following day, about noon, all of the beer was gone.

       At about 3 p.m. the following day Ms. Williams arrived at the mobile home,

having learned that Ms. Farias did not report for work at her fruit sorting job that

morning, which was unusual. Ms. Williams was concerned that her brother might have

hurt their mother; he had done it once before. When she told Mr. Farias that she wanted

to see her mom, Mr. Farias said that she was sleeping. Ms. Williams demanded that Mr.

Farias wake their mother and send her out, or she would call the police. Mr. Farias

ignored her and went back inside.

       Ms. Farias called the police, who arrived shortly thereafter. They entered the

mobile home despite Mr. Farias's insistence that Ms. Farias was asleep and discovered

her in the bedroom of the mobile home, lying critically injured under a pile of blankets.

Later investigation revealed blood spatters on the wall outside the bedroom, bloodstained

clothing, a bloodied mop and towel, and other items. It was apparent that an effort had

been made to clean blood from the hallway floor.

       Ms. Farias was transported to the emergency room, unconscious. She was

admitted in critical condition with multiple organ systems malfunctioning, obvious

external injuries including bruising and fractured face bones, and possible internal organ




                                             4

Nos. 30630-5-111; 31530-4-111
State v. Farias


lI\junes. Due to the extent of her injuries, Ms. Farias was airlifted to Harborview Medical

Center in Seattle.

       Detective Dave Helvey interviewed Mr. Farias at the sheriffs office. During a

break after the first of two interviews, Mr. Farias told the detective, "'I think 1 did this to

my mom.'" RP at 109. Detective Helvey noted that Mr. Farias's right hand was red and

appeared scratched. Mr. Farias acknowledged the only people who had been in the house

the previous night were him and his mother. Mr. Farias told police he did not hurt his

mother, but had no explanation for her injuries.

       The State charged Mr. Farias with first degree assault with special allegations of

aggravating circumstances.

       At trial, Mr. Farias asked that the jury be instructed on voluntary intoxication and

offered two proposed instructions. The court declined to provide either, explaining,

       The Court is familiar with the elements that are necessary, and primarily
       the third element that affects the ability to acquire the proper mental state.
       There was really only testimony that he'd had two 40-ouncers, seven beers
       in this particular matter. He also testified that he had some alcohol at his
       nephew's, didn't testify as to how much, and the officers, at about
       midnight, although he apparently ran into some trouble at Safeway, the
       officers at midnight testified that, being experienced officers in people with
       intoxication, that he was intoxicated, but he wasn't exhibiting the signs of
       being overly intoxicated .... Defendant himself testified that he
       remembered all of those contacts. The Defendant testified that he
       remembered going home. The Defendant testified that he remembered his
       mother coming to the door and saying good night to him, and then the
       Defendant testified he went to the couch and fell asleep.

RP at 537-38.

                                               5

Nos. 30630-5-III; 31530-4-III
State v. Farias


       In closing argument, Mr. Farias's lawyer made the following argument from the

court's instructions, without objection:

       [I]fyou get to the point where you believe that Daniel did this, if you get to
       that point, you have to determine whether or not he committed this offense
       with the intent, a specific intent, a term of art, a legal term, if he intended to
       do great bodily harm. It's not enough for you to go back in there and say,
       "He did it. He's guilty." The State has to prove beyond a reasonable doubt
       to all of you unanimously that Daniel intended to inflict the harm on his
       mother that she suffered. You have to find that he had in his mind that,
       "I'm going to go down that hall, I'm going to bust open my Mom's door,
       and I'm going to almost kill her." The State hasn't proven that. Even if
       you believe the State has proved that she did it (sic), the State has not
       proven to you that he intended the harm that his mom suffered.
               Take into consideration his state of mind. Take into consideration
       what he had been doing for the hours, the day before his mom was
       assaulted. Take all that into account. Take into account the description of
       his demeanor, how he acted. Take into account the witnesses' testimony
       and put the State to its burden of proof on the issue of intent. It's just not
       an automatic foregone conclusion that just because his poor mother
       suffered these injuries that he had any intent, if you find, again, if you find
       that he did this, to inflict that type of harm. That's what makes this assault
       in the first degree. The highest level of assault that there is in this country.
       So that's an important issue for all of you to discuss.

RP at 593-94 (second alteration in original).

       Mr. Farias was found guilty as charged, including all of the aggravating

circumstances alleged by the State. He appeals.

                                           ANALYSIS

       Mr. Farias's appellate lawyer's brief raises a single issue: it challenges the trial

court's refusal to give either of his proposed instructions on voluntary intoxication.




                                                6

Nos. 30630-5-111; 31530-4-111
State v. Farias


       RCW 9A.16.090, 1 provides:

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

"[I]ntoxication 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

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 circumstantial evidence." Id. at 890.

       Each side is entitled to have the trial court instruct upon its theory of the case if

there is evidence to support the theory; on the other hand, it is prejudicial error to submit

an issue to the jury when there is not substantial evidence concerning it. State v. Hughes,

106 Wn.2d 176, 191, 721 P.2d 902 (1986). Where a defendant seeks an instruction

explaining how the jury may consider evidence of voluntary intoxication as bearing on

intent, it is well settled that he or she must show (1) the charged crime has a specific

mental state, (2) there is substantial evidence the defendant was drinking, and (3)



       We quote the current version ofRCW 9A.16.090, which was amended by Laws
       1
of2011, chapter 336, section 355 to make the language gender neutral.

                                              7

Nos. 30630-5-111; 31530-4-111
State v. Farias


evidence that the defendant's drinking affected his or her ability to fonn the required

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

Everybodytalksabout, 145 Wn.2d 456, 479,39 P.3d 294 (2002); State v. Gallegos, 65

Wn. App. 230, 238, 828 P.2d 37 (1992). Evidence of drinking alone is insufficient; there

must be substantial evidence of the alcohol's effects on the defendant's mind or body.

Gabryschak, 83 Wn. App. at 253. "Put another way, the evidence must reasonably and

logically connect the defendant's intoxication with the asserted inability to fonn the

required level of culpability to commit the crime charged." Id. at 252-53.

       When considering whether a proposed jury instruction is supported by the

evidence, the trial court must examine the evidence and draw all reasonable inferences in

the light most favorable to the requesting party. State v. Hanson, 59 Wn. App. 651, 656­

57, 800 P.2d 1124 (1990). We review a trial court's refusal to give a voluntary

intoxication instruction for abuse of discretion. State v. Priest, 100 Wn. App. 451, 454,

997 P.2d 452 (2000).

       One problem with giving the voluntary intoxication instruction in this case is that

the jury was presented with no evidence as to the level of Mr. Farias's intoxication at the

time Ms. Farias was assaulted. Fifteen hours passed between the time Ms. Williams

dropped him off at the mobile home and the time Ms. Farias was discovered injured the

following day. At the time of Mr. Farias's encounter with police at the gas station late in

the evening on January 3, he had been able to consummate the purchase of beer, was able

                                             8

Nos. 30630-5-III; 31530-4-111
State v. Farias


to understand and respond to the officers' questions, and walked without apparent

impairment to his nephew's car. It is true that he had another 12 cans of beer with him

when dropped off at his mother's mobile home and there is circumstantial evidence he

consumed them sometime between midnight and noon the following day. But there is no

evidence he drank any of the 12 beers before assaulting his mother. He might have been

no more intoxicated at the time of the assault than he was during his encounter with

police officers at the gas station; he might have been even less intoxicated.

       Another problem is that given the unknown time of the assault, the unknown level

of Mr. Farias's intoxication at that time, and the fact that neither Mr. Farias nor his

mother could recall how the assault happened, there is no evidence bearing on whether or

how Mr. Farias's drinking affected his ability to form the intent to inflict great bodily

harm, the mental state required for assault in the first degree. The fact that he cannot

recall the assault is not evidence that he did not intend to inflict great bodily harm. See

State v. Thomas, 123 Wn. App. 771, 780-81, 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 form the intent to commit assault in the first degree).

       The court's instructions informed the jury that to convict Mr. Farias of first degree

assault, one of the elements that the State must prove beyond a reasonable doubt was that

in assaulting Ms. Farias, "the Defendant acted with intent to inflict great bodily harm."

                                              9

Nos. 30630-5-III; 3 1530-4-III
State v. Farias


Clerk's Papers (CP) at 126. Mr. Farias's lawyer was able to argue, and did argue, that the

jury should find reasonable doubt as to the element of intent. For the court to have given

a voluntary intoxication instruction, though, would have been to invite the jury to

speculate about Mr. Farias's condition and mental culpability at a time for which the jury

had no evidence.

       The well settled criteria for giving the voluntary intoxication instruction were not

demonstrated by Mr. Farias. The trial court properly refused to give it.

                      STATEMENT OF ADDITIONAL GROUNDS

       In an untimely pro se notice of appeal, Mr. Farias assigns error to two related

matters: the trial court's decision to admit evidence of his earlier assault of his mother

and ineffective assistance of appellate counsel in failing to challenge the admission of

that evidence. Mr. Farias is not entitled to two appeals but he is entitled to file a pro se

statement of additional grounds (SAG) identifYing matters that he believes were not

adequately addressed by his lawyer's brief. In order to serve the ends ofjustice, we

waive the applicable deadline and review his pro se notice of appeal as a SAG.

       Before trial, the State moved for a determination that the court would admit

evidence that Mr. Farias assaulted his mother in May 2010. It contended that the

evidence was admissible under ER 404(b) to establish the domestic violence aggravator it

had charged, citing State v. Baker, 162 Wn. App. 468, 259 P.3d 270 (holding that a prior

assault of a victim of domestic violence was admissible to prove motive, absence of

                                              10 

Nos. 30630-5-111; 31530-4-111
State v. Farias


mistake, or accident, or to assist the jury in assessing the credibility of the victim), review

denied, 173 Wn.2d 1004 (2011) and State v. Anderson, 42 Wn. App. 659, 713 P.2d 145

(1986) (where defendant claimed to be too intoxicated to form the required intent,

evidence that he had earlier committed an identical crime is admissible to prove intent).

       Mr. Farias contends that admitting evidence of his prior assault substantially and

unfairly prejudiced him, implying that in weighing prejudice against probative value

under ER 403 the trial court underestimated the prejudicial impact of the evidence.

       Under ER 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity therewith." Such

evidence may be admissible "for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER

404(b). '" It is undoubtedly the rule that evidence of quarrels between the victim and the

defendant preceding a crime, and evidence of threats by the defendant, are probative

upon the question of the defendant's intent. '" State v. Powell, 126 Wn.2d 244, 261, 893

P.2d 615 (1995) (quoting State v. Parr, 93 Wn.2d 95,102,606 P.2d 263 (1980)).

       Before admitting evidence under ER 404(b) a trial court "must (1) find by a

preponderance of the evidence that the misconduct occurred, (2) identify the purpose for

which the evidence is sought to be introduced, (3) determine whether the evidence is

relevant to prove an element of the crime charged, and (4) weigh the probative value




                                              11 

Nos. 30630-5-111; 31530-4-111
State v. Farias


against the prejudicial effect." State v. Vy Thang, 145 Wn.2d 630,642,41 P.3d 1159

(2002)..

       The court considered the State's motions in limine at a pretrial hearing. In support

of admitting evidence of the prior assault, the State offered the testimony of Ms. Williams

that some eight months before the assault for which Mr. Farias was being tried, she had

traveled to her mother's mobile home after repeatedly calling and asking to speak to her

mother, only to be told by Mr. Farias that their mother was sleeping. Upon arriving at the

mobile home Ms. Williams observed shattered glass on the dining room floor. Mr. Farias

was sweeping the floor and claimed that a plate had fallen and broke.

      Ms. Farias was standing outside her bedroom crying, however, and told Ms.

Williams, '''Daniel tried to kill me.'" CP at 50. Ms. Farias was wearing an apron whose

buttons were tom off and her glasses were crooked. The mattress in her bedroom was

flipped and the doorframe to the room was cracked. When Ms. Williams asked her what

had happened, Ms. Farias said that Mr. Farias had gotten in an argument with his girl

friend and was upset. Mr. Farias interrupted, telling his mother to shut up, saying that she

was crazy, and glaring at her in an intimidating manner. Ms. Williams told her mother to

gather some belongings and took Ms. Farias to stay at the Williams home.

       The trial court ruled that the prior assault was relevant to establish the domestic

violence aggravating factor and to establish motive and absence of mistake or accident.

Applying the balancing required by ER 403, the court found the evidence quite probative

                                             12 

Nos. 30630-5-111; 31530-4-111
State v. Farias


in light of Mr. Farias's expected defense that he was intoxicated and acted in an

uncontrolled and unintentional manner, stating, "I think it is probative as to lack of

mistake. I think it's probative as to motive, and I think it's more probative than it is

prejudicial .... So the Court would allow the testimony." RP at 53.

       The decision to admit evidence under ER 404(b) is reviewed for an abuse of

discretion. State v. De Vincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). A trial court

abuses its discretion ifit fails to abide by the rule's requirements. State v. Foxhoven, 161

Wn.2d 168,174,163 P.3d 786 (2007). Discretion is also abused ifit is exercised on

untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12,

26,482 P.2d 775 (1971). We review a trial court's balancing of the probative value of

evidence against its prejudicial effect or potential to mislead under ER 403 "with a great

deal of deference, using a 'manifest abuse of discretion' standard of review." State v.

Luvene, 127 Wn.2d 690,706-07,903 P.2d 960 (1995). In reviewing for manifest abuse

of discretion, we will affirm the trial court's decision unless no reasonable judge would

have reached the same conclusion. Tatham v. Rogers, 170 Wn. App. 76, 106,283 P.3d

583 (2012).

       Here, the trial court abided by the requirements of ER 404(b) in deciding whether

to admit the evidence and came to a reasoned decision. It did not abuse its discretion in

admitting the prior assault under ER 404(b).




                                              13
Nos. 30630-5-III; 3 1530-4-II1
State v. Farias


       Mr. Farias makes a related assignment of error to what he claims was the

ineffective assistance of his counsel in failing to raise this issue in his appeal. To

establish ineffective assistance of counsel, Mr. Farias must show both that (1) defense

counsel's representation was "deficient" and (2) the deficient representation prejudiced

the defendant. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). The failure to show either element ends our inquiry. State v. Grier, 171 Wn.2d

17,33,246 PJd 1260 (2011).

       Mr. Farias's trial lawyer zealously resisted admission of evidence of the assault.

He lost the argument after the trial court considered and addressed all of the matters

required before ruling on the admissibility of evidence under ER 404(b). Given the

applicable standard of review, appellate counsel could reasonably conclude that

appealing the trial court's decision to admit the evidence was pointless. Appellate

counsel is not ineffective where, as here, an appeal of the trial court's ruling would fail.

State v. Nichols, 161 Wn.2d 1, 14-15, 162 P.3d 1122 (2007).

       Affirmed. 


       A majority of the panel has determined that this opinion will not be printed in the 





                                              14 

Nos. 30630-5-111; 31530-4-111
State v. Farias


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

2.06.040.




                                            Siddoway, J.

WE CONCUR:



  orsmo, C.J.



Kulik, J.




                                           15 

