                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           April 12, 2016
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 47206-6-II

                                Respondent,

        v.

 ROBERT A. CREECH,                                            UNPUBLISHED OPINION

                                Appellant.

       Worswick, J. — Following a jury trial, Robert Creech appeals his convictions for two

counts of second degree assault while armed with a deadly weapon. Creech argues the State

produced insufficient evidence to prove that Creech intended to place the victims in

apprehension and fear of bodily injury and that the victims’ fears were reasonable. Creech also

argues that his counsel rendered ineffective assistance by failing to request an instruction on the

lesser included offense of unlawful display of a weapon. We disagree and affirm Creech’s

convictions.

                                              FACTS

       On November 10, 2014, Frederick Williamson and Michael Steubs were sitting together

at a table outside of a Starbucks in Clark County. Creech approached Williamson and Steubs

and asked for money to buy coffee. Creech stood about an arm’s distance away from

Williamson and Steubs. Steubs refused Creech’s request for money. Creech responded, “F***

you.” Verbatim Report of Proceedings (VRP) at 46. Steubs responded by insinuating Creech

was a homosexual. Creech then called Steubs a “motherf***er,” and Steubs responded with a
No. 47206-6-II


joke about his relationship with his mother. VRP at 58. Creech pulled out a knife, opened the

six-inch blade, and told Williamson and Steubs “I’d cut you both up and kill you, but I don’t

want to go to jail.” VRP at 47-48; VRP at 79. At trial, both Williamson and Steubs testified that

when Creech pulled the knife he kept it close to his body.1

       Williamson testified:

       [Williamson]: . . . I was kind of deeply concerned that things were escalating
       and that somebody was going to get hurt.
       [State]: Did you feel in danger at that point?
       [Williamson]: Yes, I did.

VRP at 49.

       Steubs testified:

       [Steubs]: [H]e was still close enough that he could have reached out and bent
       slightly and touched me on the tip of my nose with his finger. That close.
       [State]: During the time the knife was out, were you concerned for your safety?
       [Steubs]: Yes.
       [State]: Did you feel that you could be cut or stabbed?
       [Steubs]: Yes.
       [State]: Did you feel that Willy could be cut or stabbed?
       [Steubs]: Yes.

VRP at 60-61.

       Steubs told Creech that the police would come and that Creech needed to leave. Creech

left and went to a park across the street. Williamson and Steubs briefly debated whether to call

911 and ultimately decided to do so. Shortly thereafter, law enforcement officers arrived and

arrested Creech at the park.




1
 Williamson’s and Steubs’s testimony differed slightly in regards to the direction of Creech’s
blade.


                                                2
No. 47206-6-II


       On January 8, 2015, the State charged Creech with two counts of second degree assault

with a deadly weapon enhancement on each count. At trial, witnesses testified to the facts

above. During closing argument, Creech’s attorney described the case: “It’s not surely about an

assault in the second degree with a deadly weapon. But it’s not charged as an unlawful display

of a weapon. It’s charged as an assault.” VRP at 135. The jury found Creech guilty of both

counts, including the deadly weapon enhancement for each.

                                           ANALYSIS

                                I. SUFFICIENCY OF THE EVIDENCE

       Creech argues that the State produced insufficient evidence to support his convictions

because the State did not prove that Creech intended to place the victims in apprehension and

fear of bodily injury, or that the victims’ fears were reasonable. We disagree.

       Sufficient evidence supports a conviction if, when viewed in the light most favorable to

the State, any rational trier of fact could have found the essential elements of the charged crime

proved beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). On

appeal, we draw all reasonable inferences from the evidence in favor of the State and interpret

them most strongly against the defendant. 157 Wn.2d at 8. In the sufficiency context, we

consider circumstantial evidence as probative as direct evidence. State v. Goodman, 150 Wn.2d

774, 781, 83 P.3d 410 (2004). We may infer specific criminal intent of the accused from

conduct that plainly indicates such intent as a matter of logical probability. 150 Wn.2d at 781.

We defer to the fact finder on issues of conflicting testimony, witness credibility, and

persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970,




                                                 3
No. 47206-6-II


abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,

158 L. Ed. 2d 177 (2004).

       RCW 9A.36.021(1)(c) provides that “[a] person is guilty of assault in the second degree

if he or she . . . [a]ssaults another with a deadly weapon.” The statute does not define “assault,”

thus, courts must resort to the common law definition. State v. Byrd, 125 Wn.2d 707, 712, 887

P.2d 396 (1995). Washington recognizes three common law definitions of assault: “(1) an

unlawful touching (actual battery); (2) an attempt with unlawful force to inflict bodily injury

upon another, tending but failing to accomplish it (attempted battery); and (3) putting another in

apprehension of harm.” State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009).

The trial court instructed the jury as follows:

               An assault is an act, done with the intent to create in another apprehension
       and fear of bodily injury, and which in fact creates in another a reasonable
       apprehension and imminent fear of bodily injury even though the actor did not
       actually intend to inflict bodily injury.

Clerk’s Papers at 16.

A.     Intent

       Creech contends that the State provided insufficient evidence that he had the specific

intent to create apprehension and a fear of bodily injury in Williamson and Steubs. We disagree.

       Specific intent to create apprehension and fear of bodily harm is an essential element of

second degree assault. Byrd, 125 Wn.2d at 713. “Intent is rarely provable by direct evidence,

but may be gathered, nevertheless, from all of the circumstances surrounding the event.” State v.

Gallo, 20 Wn. App. 717, 729, 582 P.2d 558 (1978).

       Steubs testified that he had not treated Creech with much dignity, which agitated Creech.

In turn, Creech pulled out a six-inch knife, telling Williamson and Steubs, “I’d cut you both up


                                                  4
No. 47206-6-II


and kill you, but I don’t want to go to jail.” VRP at 48. Creech argues that his actions

constituted nothing more than a statement that he was not going to do anything. But we take all

evidence in the light most favorable to the State. A rational jury could have inferred that

Creech’s statement coupled with the pulling of a knife while standing in close proximity to

Williamson and Steubs constituted an intent to create fear in Williamson and Steubs. We hold

that a rational jury could have inferred the necessary intent from the evidence presented at trial.

B.     Reasonable Apprehension and Imminent Fear

       Creech also argues that the State failed to produce sufficient evidence that Williamson’s

and Steubs’s apprehension and fear of bodily injury was reasonable. We disagree and hold that

sufficient evidence supports the jury’s verdict.

       Both Williamson and Steubs testified that Creech was angry, using profanity, and was

standing in close proximity to Williamson and Steubs when he pulled the knife and referenced

cutting and killing them. Both Williamson and Steubs testified that they felt afraid that someone

would get hurt and that they were in danger.

       On this record a rational jury could find that the combination of the hostile verbal

encounter, Creech’s agitation, the pulling of a knife, and Creech’s statement that he could cut

and kill Williamson and Steubs created a reasonable apprehension and fear of bodily injury. 2 See

State v. Stewart, 73 Wn.2d 701, 705, 440 P.2d 815 (1968) (“Apprehension and fear experienced

by a person at whom a gun is pointed may be inferred, unless he knows it to be unloaded.”).




2
 Creech again argues that his statement meant, in essence, that he was not going to do anything.
Because we take all evidence in the light most favorable to the State, his argument is
unpersuasive.


                                                   5
No. 47206-6-II


       Because after viewing the evidence in the light most favorable to the State, a rational jury

could have concluded Creech acted with the specific intent to create a reasonable apprehension

and imminent fear of bodily harm and did, in fact, create reasonable apprehension and fear, we

conclude that there is sufficient evidence to support the second degree assault conviction.

                             II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Creech also argues that his counsel rendered ineffective assistance by failing to request

an instruction on the lesser included offense of unlawful display of a weapon. We disagree.

       The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee a criminal defendant’s right to effective assistance of

counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). To prevail on an ineffective

assistance of counsel claim, the defendant must show that defense counsel’s representation was

deficient and the deficient representation prejudiced the defendant. 171 Wn.2d at 32-33.

“Where the claim of ineffective assistance is based upon counsel’s failure to request a particular

jury instruction, the defendant must show he was entitled to the instruction, counsel’s

performance was deficient in failing to request it, and the failure to request the instruction caused

prejudice.” State v. Thompson, 169 Wn. App. 436, 495, 290 P.3d 996 (2012).

A.     Creech Was Entitled to the Lesser Included Offense Instruction

       The threshold question is whether Creech was entitled to the lesser included offense

instruction. A defendant is entitled to a lesser included offense instruction if two criteria are met:

each of the elements of the lesser offense must be a necessary element of the offense charged

(legal prong) and the evidence in the case must support an inference that the lesser crime was

committed (factual prong). State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The



                                                  6
No. 47206-6-II


factual prong of Workman is satisfied when, viewing the evidence in the light most favorable to

the party requesting the instruction, substantial evidence supports a rational inference that the

defendant committed only the lesser included or inferior degree offense to the exclusion of the

greater one. State v. Fernandez–Medina, 141 Wn.2d 448, 461, 6 P.3d 1150 (2000).

          As previously discussed, to convict a defendant of second degree assault, “the jury must

find specific intent to create reasonable fear and apprehension of bodily injury.” State v. Ward,

125 Wn. App. 243, 248, 104 P.3d 670 (2004) (abrogated on other grounds by Grier, 171 Wn.2d

at 38).

          To convict a defendant of unlawful display of a weapon, the State must prove that the

defendant

          . . . carr[ied], exhibit[ed], display[ed], or [drew] any firearm, dagger, sword, knife
          or other cutting or stabbing instrument, club, or any other weapon apparently
          capable of producing bodily harm, in a manner, under circumstances, and at a
          time and place that either manifest[ed] an intent to intimidate another or that
          warrant[ed] alarm for the safety of other persons.

RCW 9.41.270(1). Because all elements of unlawful display of a weapon are also necessary

elements of second degree assault, unlawful display of a weapon is a lesser included offense of

second degree assault. RCW 9.41.270(1); RCW 9A.36.021; Ward, 125 Wn. App. at 248.

          To justify a lesser included offense instruction for unlawful display of a weapon under

the Workman test, the evidence had to support an inference that Creech displayed the firearm

only with the intent to intimidate another or at a time and place that warranted alarm for the

safety of other persons, i.e., that he committed only the lesser offense. See Ward, 125 Wn. App.

at 248. Thus, a lesser included offense instruction is warranted only “‘[i]f the evidence would

permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the



                                                     7
No. 47206-6-II


greater.’” State v. Fernandez–Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000) (quoting State

v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997)). In this context, the evidence must be

viewed in the light most favorable to the party seeking the instruction. Fernandez–Medina, 141

Wn.2d at 455-56.

       Viewing the evidence in the light most favorable to Creech, the evidence would permit a

jury to rationally find Creech guilty of unlawful display of a weapon and acquit him of second

degree assault with a deadly weapon. Williamson’s and Steubs’s description of the way Creech

held the knife differed slightly, however, they both agreed that the knife was not pointed at them

and that it was held close to Creech’s body. Creech’s statement, “I’d cut and kill you but I don’t

want to go to jail,” did not indicate or expressly threat that Creech planned to do anything with

the knife. A rational jury could interpret this evidence to create an inference that Creech meant

only to intimidate Williamson and Steubs, as opposed to intending to place them in fear of bodily

harm. Thus, Creech was entitled to an instruction on the lesser included offense of unlawful

display of a weapon.

B.     Deficient Performance

       We next consider whether defense counsel’s failure to seek the lesser included instruction

constituted deficient performance. “The threshold for the deficient performance prong is high,

given the deference afforded to [the] decisions of defense counsel in the course of

representation.” Grier, 171 Wn.2d at 33. To show deficient performance, Creech must show

that defense counsel’s performance fell below an objective standard of reasonableness. State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). When counsel’s conduct can be




                                                 8
No. 47206-6-II


characterized as legitimate trial strategy or tactics, performance is not defective. Grier, 171

Wn.2d at 33. Creech cannot meet this burden.

       Our Supreme Court held in Grier that an all-or-nothing strategy can be a legitimate trial

tactic that does not constitute ineffective assistance of counsel. 171 Wn.2d at 42. The Supreme

Court explained that, even when “the risk is enormous and the chance of acquittal is minimal, it

is the defendant’s prerogative to take this gamble, provided her attorney believes there is support

for the decision.” 171 Wn.2d at 39.

       Here, like in Grier, Creech fails to show that defense counsel’s decision not to request a

lesser included instruction was not tactical. The theme of counsel’s closing argument was that

the State had failed to prove Creech’s specific intent to create apprehension and fear of imminent

bodily harm, which is the distinguishing element between the crime of second degree assault and

unlawful display of a weapon. During closing, Creech’s counsel specifically argued, “[I]t’s not

charged as an unlawful display of a weapon. It’s charged as an assault. But we know that both

of the gentlemen will say, and did say from their testimony, ‘I wasn’t afraid; I was concerned

and I was alert.’” VRP at 135. Given the facts of this case, Creech does not show that his

counsel’s failure to request an instruction for unlawful display of a weapon was not a strategic

decision. It is not for us to question that strategy. As Grier noted, the “complex interplay

between the attorney and the client in this arena leaves little room for judicial intervention.” 171

Wn.2d at 40. Simply because defense counsel’s strategy was ultimately unsuccessful does not

mean that his performance was deficient. See 171 Wn.2d at 43 (“That this strategy ultimately

proved unsuccessful is immaterial to an assessment of defense counsel’s initial calculus;

hindsight has no place in an ineffective assistance analysis.”).



                                                 9
No. 47206-6-II


          Creech has not met the high burden of proving that his trial counsel’s performance was

deficient, and therefore we reject his claim.3

          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.



                                                                       Worswick, J.
    We concur:



    Bjorgen, C.J.




    Lee, J.




3
  Because we hold that counsel’s performance was not deficient, we do not address whether any
alleged deficiency was prejudicial. State v. Foster, 140. Wn. App 266, 273, 166 P.3d 726
(2007).


                                                  10
