                                                                 FILED 

                                                              JUNE 24, 2014 

                                                       In the Office of the Clerk of Court 

                                                     W A State Court of Appeals, Division III 




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                           )         No. 31609-2-111
                                               )
                     Respondent,               )
                                               )
              v.                               )         UNPUBLISHED OPINION
                                               )
BENJAMIN R. CAMDEN,                            )
                                               )
                     Appellant.                )

       LAWRENCE- BERREY, J. -      A jury found Benjamin Camden guilty of first degree

burglary and second degree assault after Mr. Camden hit an employee of the PDQ

convenience store, causing the employee to suffer a serious concussion and two losses of

consciousness. Mr. Camden appeals. He contends that the State's evidence was not

sufficient to support the verdicts. He also contends that the trial court erred when it

denied to instruct the jury on fourth degree assault and second degree criminal trespass.

       We hold that a loss of consciousness is a temporary but substantial impainnent of

an organ, i.e., the brain, and, therefore, constitutes a second degree assault. We also hold

that where, as here, the facts support a second degree assault, but not a fourth degree

assault, a defendant is not entitled to a lesser degree instruction. We, therefore, affinn.
No. 31609-2-III
State v. Camden


                                         FACTS

      Mr. Camden hit Steven Laws once in the face at the PDQ convenience store in

Dayton, Washington, after Mr. Laws refused to sell Mr. Camden cigarettes or liquor a

few days earlier. Mr. Laws, an employee of the store, immediately reported the incident

to law enforcement. While he waited for the police, Mr. Laws performed other tasks,

such as rewinding the video recording from the store security camera to review the

incident. Mr. Laws's neck, upper back, and side of his head began to hurt. The pain shot

down to both hands and his back.

      Deputy Donald Foley arrived. Mr. Laws told Deputy Foley about the pain. The

two men watched the security video. Deputy Foley recognized Mr. Camden. According

to Deputy Foley, Mr. Camden appeared to strike Mr. Laws in the left side of the head

with a closed fist. After watching the video, Deputy Foley noticed that Mr. Laws was still

in pain. He became concerned that Mr. Laws may have a head injury. He saw that one of

Mr. Laws's pupils was bigger than the other. Mr. Laws agreed to go to the hospital.

      While at the hospital, advanced registered nurse practitioner (ARNP) Dawn

Meicher examined Mr. Laws. She noted that Mr. Laws was confused about the date and

time and that he lost consciousness twice. Mr. Laws was diagnosed with a grade three

concussion and thoracic and cervical sprain/strain. He was released from the hospital


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No. 31609-2-III
State v. Camden


after a few hours and remained at home in bed for two days, unable to engage in his

normal activities. For a few weeks after, Mr. Laws was tender, had limited range of

motion, and felt pain.

       ARNP Meicher reexamined Mr. Laws five days after the incident. She observed

good range of motion in Mr. Laws's neck, but also found that Mr. Laws was still

experiencing pain in his upper thoracic spine. She allowed Mr. Laws to return to work,

but instructed him not to lift anything over 20 pounds for some time because he needed

time to heal.

       Mr. Camden was charged with and found guilty of first degree burglary and

second degree assault. Mr. Camden appeals. He contends that sufficient evidence does

not support the verdict for second degree assault. He also assigns error to the trial court's

refusal to give jury instructions for fourth degree assault. In his statement of additional

grounds for review (SAG), Mr. Camden challenges the evidence used to support his first

degree burglary conviction and the trial court's denial to give a jury instruction on second

degree criminal trespass.

                                        ANALYSIS

       ProofofSecond Degree Assault. In every criminal prosecution, due process

requires that the State prove, beyond a reasonable doubt, every fact necessary to



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No. 31609-2-111
State v. Camden


constitute the charged crime. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed.

2d 368 (1970). When a defendant challenges the sufficiency of the evidence, the proper

inquiry is "whether, after viewing the evidence in the light most favorable to the State,

any rational trier of fact could have found guilt beyond a reasonable doubt." State v.

Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216,

220-22,616 P.2d 628 (1980)). "[A]ll reasonable inferences from the evidence must be

drawn in favor of the State and interpreted most strongly against the defendant." Id.

(citing State v. Partin, 88 Wn.2d 899, 906-07,567 P.2d 1136 (1977)). Furthermore, "[a]

claim of insufficiency admits the truth of the State's evidence and all inferences that

reasonably can be drawn therefrom." Id. (citing State v. Theroff, 25 Wn. App. 590, 593,

608 P.2d 1254, aff'd, 95 Wn.2d 385,622 P.2d 1240 (1980)).

       According to the jury instructions, in order for Mr. Camden to be guilty of second

degree assault, the jury had to find that Mr. Camden intentionally assaulted Mr. Laws,

and, in doing so, recklessly inflicted substantial bodily harm on Mr. Laws. The

instructions defined substantial bodily harm as "bodily injury that involves a temporary

but substantial disfigurement, or that causes a temporary but substantial loss or

impairment of the function of any bodily part or organ, or that causes a fracture of any

bodily part." Clerk's Papers (CP) at 157. "Substantial" means'" considerable in amount,


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No. 31609-2-III
State v. Camden


value,orworth.'" State v. McKague, 172 Wn.2d 802,806,262 P.3d 1225 (2011)

(quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2280 (2002».

       In McKague, the Supreme Court concluded that the evidence was sufficient for the

jury to find that the victim suffered a temporary but substantial impairment of a body part

or an organ's function when the victim suffered a concussion, which caused dizziness and

the inability to stand. Id. at 806-07. The court applied the definition of "substantial" and

held that the State's evidence was sufficient to meet the substantial bodily harm element

of second degree assault. Id.

       Here, like in McKague, the evidence is sufficient to support the substantial bodily

harm element of second degree assault. As a result of the assault, Mr. Laws suffered a

substantial impairment of an organ's function. The assault caused Mr. Laws to suffer a

serious concussion, loss of consciousness, and a cervical sprain or strain. While the loss

of consciousness was brief, the loss was still considerable as it occurred twice and caused

Mr. Laws to lose all ability to function. Sufficient evidence supports the substantial

bodily harm element of second degree assault.

       Necessity orLesser Offense Instruction. "When determining if the evidence at trial

was sufficient to support the giving of an instruction, the appellate court is to view the

supporting evidence in the light most favorable to the party that requested the



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No. 31609-2-III
State v. Camden


instruction." State v. Fernandez-Medina, 141 Wn.2d 448,455-56,6 P.3d 1150 (2000).

"More specifically, a requested jury instruction on a lesser included or inferior degree

offense should be administered '[i]fthe evidence would permit a jury to rationally find a

defendant guilty of the lesser offense and acquit him of the greater.'" Id. at 456

(alteration in original) (quoting State v. Warden, 133 Wn.2d 559,563,947 P.2d 708

(1997».

       An inferior degree instruction is appropriate when (1) the statutes for both the

charged offense and the inferior degree offense'" proscribe but one offense' "; (2) the

charged offense is divided into degrees, one of which is the inferior degree offense; and

(3) evidence establishes that the defendant committed only the inferior offense. State v.

Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998) (quoting State v. Foster, 91 Wn.2d

466,472,589 P.2d 789 (1979». To satisfy the third, factual component of the test for an

inferior degree offense instruction, the record must support a rational inference that the

defendant committed only the lesser degree offense to the exclusion of the greater

offense. Fernandez-Medina, 141 Wn.2d at 461.

       Second degree assault, as charged here, occurs when a person "[i]ntentionally

assaults another and thereby recklessly inflicts substantial bodily harm."

RCW 9A.36.021(l)(a). Fourth degree assault occurs when a person assaults another,



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No. 31609-2-III
State v. Camden


"under circumstances not amounting to assault in the first, second, or third degree, or

custodial assault." RCW 9A.36.041(l).

       The trial court did not err in refusing to give an instruction for fourth degree

assault. The factual prong of the test was not met: The evidence was undisputed that Mr.

Laws suffered a serious concussion that resulted in two losses of consciousness. The

record does not support a rational inference that the defendant committed only the fourth

degree assault to the exclusion of second degree assault.

       Mr. Camden was not entitled to a jury instruction for fourth degree assault.

       Statement ofAdditional Grounds fOr Review. In his SAG, Mr. Camden contends

that the evidence is insufficient to support the jury's finding of first degree burglary. He

contends that video evidence shows that he did not enter the store.

       As stated in Mr. Camden's jury instructions, "A person commits the crime of

burglary in the first degree when he or she enters or remains unlawfully in a building with

intent to commit a crime against a person or property therein, and if, in entering or while

in the building or in immediate flight therefrom, that person or an accomplice in the crime

assaults any person." CP at 141. "A person enters or remains unlawfully in or upon

premises when he or she is not then licensed, invited, or otherwise privileged." CP at




                                              7

No. 31609-2-II1
State v. Camden


144. "The tenn enter includes ... the insertion of any part of the person's body." CP at

145.

       The evidence is sufficient to support the jury's finding of gUilt for first degree

burglary. Viewing the evidence in the light most favorable to the State, any rational trier

of fact could have found gUilt beyond a reasonable doubt that Mr. Camden knew he was

prohibited from entering store property and that he entered the store when his hand broke

the plane of the doorway during the assault. Mr. Laws testified that he told Mr. Camden a

few days before that he was not supposed to be at the store. Mr. Laws and Mr. Camden

both testified that the parties met at the door. Mr. Camden stated that Mr. Laws was

standing in the doorway, holding the door halfway open. The jury was shown a video of

the incident and the State pointed out the point where Mr. Camden's hand passed inside

the doorway when striking Mr. Laws.

       While Mr. Camden testified that he did not know he was banned from the store

and that his hand did not enter the store, these issues of conflicting testimony and

credibility of witnesses are matters for the trier of fact and are not subject to review. State

v. Thomas, 150 Wn.2d 821,874-75,83 P.3d 970 (2004). Drawing all reasonable

inferences from the evidence in favor of the State, the evidence is sufficient to support the

jury's finding of guilt.



                                              8
No. 31609-2-III
State v. Camden


       Mr. Camden also contends that the trial court improperly denied his request to give

an instruction for second degree criminal trespass. His contention fails. For a defendant

to be entitled to a lesser offense instruction, two conditions must be satisfied. First, each

of the elements of the lesser offense must be a necessary element of the crime charged.

Second, the evidence must support an inference that the lesser crime was committed.

State v. Pacheco, 107 Wn.2d 59, 68-69, 726 P.2d 981 (1986). These requirements are

referred to as the "legal" and the "factual" prongs of the Workman 1 test. State v.

Rodriguez, 48 Wn. App. 815, 817, 740 P.2d 904 (1987).

       Here, the State charged Mr. Camden with first degree burglary. First degree

burglary requires, in part, entry into a building. RCW 9A.52.020(1). Whereas, second

degree criminal trespass requires, in part, proof that the defendant knowingly entered or

remained unlawfully on the property of another. RCW 9A.52.080(1). The elements of

second degree criminal trespass are not necessary elements of first degree burglary.

Therefore, the defendant has not met the legal prong of the Workman test, and the trial

court properly refused to instruct the jury on second degree criminal trespass.

       Mr. Camden also complains that "almost everybody that was in the jury pool has

either worked with the prosecutor or were really good friends with her and her family,


       I   State v. Workman, 90 Wn.2d 443,584 P.2d 382 (1978).

                                              9
No.31609-2-III
State v. Camden


[and] I believe that my trial was not a fair trial and was biast [sic]. [O]ne juror told my

wife they didn't look at the evidence they found me guilty so they could leave." SAG

at I. Mr. Camden fails to cite the record for these claimed errors, and we decline to

search the record to find whether the claims are supported. RAP 10.1 O( c).

       We affirm.

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

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

RCW 2.06.040.


                                           Lawrence-Berrey, J.

WE CONCUR:




~J-
  (J
Brown, J.




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