                                                                                              FILED
                                                                                     COURT OF APPEAL
                                                                                            tDIVISFO1411

                                                                                    2013 JUL -2 APB 9:06

                                                                                    S AIT OF WASH; UO
                                                                                                 N

                                                                                                VUT


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION JI

STATE OF WASHINGTON,                                                   No. 42781 841
                                                                                 -

                                     Respondent,

           IPM




YOVANY GOMEZ-
            HERNANDEZ, a/ /
                       ak
YOVANY HERNANDEZ GOMEZ
                                                                  UNPUBLISHED OPINION



           WoRSWICK, C. . —
                      J    Yovany          Gomez Hernandez appeals his first degree assault

conviction, challenging the sufficiency of the evidence and the term of his community custody.

In his statement of additional grounds, Gomez claims that prosecutorial misconduct denied him
a fair trial. Because the evidence was insufficient to demonstrate an infliction of great bodily

harm and because Gomez fails to show prosecutorial misconduct, we reverse his first degree




1
    The   parties   refer to   Yovany Gomez Hernandez   as   Gomez. We do   so as   well.
No. 42781 8 II
          - -




assault conviction and remand for the trial court to enter judgment and sentence against Gomez

for the lesser degree offense of second degree assault.
                                            FACTS


         On May 4,2011, Gomez struck his wife,Anna Lila Garcia Campuzano. The next day,

Campuzano went with their three children to stay with her brother, Hector Garcia. About seven
or eight o'lock that evening, Gomez knocked on Garcia's door, asking that he be let in to talk
          c

with Campuzano. According to Garcia, Gomez pushed his way through the door,breaking the

doorframe: Campuzano was in the bathroom and eventually allowed Gomez to enter so they

could talk. Gomez told her, You will need to come home. Come home with me."
                            "                                             Report of

Proceedings (Sept. 26, 2011)RP)at 48. When Campuzano told him no, Gomez punched her in
                            (

the eye.

         She then left the bathroom and Gomez followed her into a bedroom, where Gomez

continued to insist that she go home with him. She eventually walked out of the bedroom into

the kitchen hallway, trying to wriggle loose when he grasped her hand. When she noticed him

looking at a knife block in the kitchen, she ran toward the bathroom. But Gomez grabbed her

ponytail and she fell into the bathroom, briefly losing consciousness. When she awoke, Gomez

was standing near her and a knife was in the bathroom sink.



2
 While the State concedes that the community custody term is incorrect on the judgment and
sentence, we do not address this claim as Gomez will be sentenced for a different offense.
3
    The parties refer to Anna Lila Garcia Campuzano as Ana Lilia and as Campuzano. We use
Campuzano to avoid confusion with Hector Garcia.


                                                1)
No. 42781 8 II
          - -




         She got up,went to the bedroom, and was talking with Gomez when she felt something

wet on the back of her neck. When she wiped it with her hand, her hand came back bloodied.

Gomez apologized, insisted that they go home, and insisted that she let him take care of the

injury. But instead, she had Garcia take her to the hospital.

         Dr. Paula Godfrey treated Campuzano in the emergency room. She observed a one

centimeter wide stab wound on the back of Campuzano's neck that penetrated three and a half

inches deep. Godfrey explained that Campuzano was very fortunate because the neck is a very

complex area of the body and the blade could easily have severed an artery, the spinal cord, the

brain stem, or a lung. She described such an injury as "potentially very life threatening."RP

Sept. 27,2011)at 12. While acknowledging that Campuzano had none of these injuries, she

observed that Campuzano had " ignificant tenderness to the back of the neck and sustained some
                            s

injury to the musculature in the back of the neck and the subcutaneous tissue."RP (Sept. 27,

2011)at 18. Dr. Godfrey released Campuzano after suturing the wound. She explained that

Campuzano would have a " retty minimal"permanent scar from the injury. RP (Sept. 27, 2011)
                       p

at 28.


         The State charged Gomez with first degree assault while armed with a deadly weapon

and that the crime involved domestic violence. In addition to the facts we set out above, Garcia

testified that he witnessed Gomez stab Campuzano. He also testified that Gomez told

Campuzano at the hospital that she should say that she stabbed herself.

         Gomez denied being angry, breaking Garcia's door, hitting Campuzano, or telling

Campuzano to lie. He also explained that Campuzano knocked over the knife block in the


                                                 C
No. 42781 8 I1
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kitchen, that the paring knife fell out,that he picked it up, and that she pushed him away when he

was trying to hug her and the knife accidently went in. Gomez denied that he intended to injure

Campuzano.

       The trial court's to-
                           convict instruction on first degree assault provided:

       To convict the defendant of the crime of assault in the first degree, each of the
       following elements of the crime must be proved beyond a reasonable doubt:
               1)That on or about 5 May 2011, the defendant assaulted Ana Lilia
                   Garcia -Campuzano;
               2)That the defendant acted with intent to inflict great bodily harm;
               3)That the assault resulted in the infliction of great bodily harm; and
               4)That this act occurred in the State of Washington.

Clerk's Papers (CP)at 20. The trial court defined " reat bodily harm"as:
                                                  g

       Great bodily harm means bodily injury that.reates a probability of death, or that
                                                    c
       causes significant serious permanent disfigurement, or that causes a significant
       permanent loss or impairment of the function of any bodily part or organ.

CP at 19. The trial court also instructed the jury on the lesser-
                                                                degree offense of second degree

assault. The trial court's to-
                             convict instruction provided:

       To convict the defendant of the crime of assault in the second degree, each of the
       following elements of the crime must be proved beyond a reasonable doubt:
               1)That on or about 5 May 2011, the defendant intentionally assaulted
                   Ana   Lilia   Garcia -
                                        Campuzano     and    thereby   recklessly   inflicted
                   substantial bodily, harm; or assaulted Ana Lilia Garcia -Campuzano
                   with a deadly weapon and;
               2)
                That this act occurred in the State of Washington.

CP at 25. The trial court did not define " ubstantial bodily harm."
                                         s

        During closing arguments, the State argued that Gomez committed first degree assault

because the knife. ound created a probability of death. The State based this argument on Dr.
                 w

Godfrey's testimony that had the knife penetrated at a slightly different angle, Campuzano could


                                                 M
No. 42781 8 II
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have died as a result. The State argued, alternatively, that under the lesser degree offense

instruction, the jury merely had to find that Gomez assaulted Campuzano with a deadly weapon.

       The jury found Gomez guilty of first degree assault. And it found by special verdicts that

he was armed with a deadly weapon and that the offense involved domestic violence. Gomez

appeals.

                                            ANALYSIS


                                 I. SUFFICIENCY OF THE EVIDENCE


       Gomez first argues that the State failed to prove great bodily harm and therefore we must

reverse his conviction. He argues that the State did not prove the severity of the injuries to meet

this standard, which means "the most serious injuries short of death."State v. Stubbs, 170

Wn. d 117, 128, 240 P. d 143 (2010).
  2                  3

       When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing

the evidence in a light most favorable to the State, any rational trier of fact could have found the

essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn. d
                                                                                        2

2.6, 221, 616 P. d 628 (1980).Because credibility determinations are for the trier of fact and
 1             2

are not subject to review, State v. Camarillo, 115 Wn. d 60, 71,794 P. d 850 (1990), defer
                                                     2               2             we

to the trier of fact's resolution of conflicting testimony, evaluation of witness credibility, and

decisions regarding the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-

16, 824 P. d 533 (1992).
         2

        We accept the State's concession that Gomez did not inflict injuries creating a probability

of death. The evidence at trial demonstrated that had the knife penetrated at a different angle,


                                                   5
No. 42781 8 II
          - -




Campuzano could have died or faced a probability of death. But the injuries she suffered were

minor, creating only soreness and sensitivity while they healed. This is not the type of injury the

legislature intended when criminalizing the infliction of great bodily harm. See Stubbs, 170
Wn. d
  2     at 128 ( Great
                 "`      bodily   harm' ...   encompasses the most serious injuries short of death. ").

        The State argues, nonetheless, that the resulting scar on Campuzano's neck satisfies the

great bodily harm"definition because it is a " ignificant serious permanent disfigurement."CP
                                             s
at 19. While no court has defined this, in State v. Hill,48 Wn.App. 344, 347, 739 P. d 707
                                                                                   2

1987), court defined " erious permanent disfigurement"as: that which impairs or injures
     the             s                                    "`

the beauty, symmetry or appearance of a person or thing; or that renders unsightly,misshapen, or

imperfect, or   deformed in   some manner. "' (   Quoting Gillman v. Gillman, 319 So. d 165, 166
                                                                                    2

1975)).
Ct. ist.
Fla. pp.According to Dr. Godfrey, Campuzano had a "pretty minimal"
   A
   D

permanent injury. RP at 28. This certainly does not meet the definition of significant serious

permanent disfigurement.
          .

        The State cites State v.Ashcraft, 71 Wn. App. 444, 455, 859 P. d 60 (1993), argue that
                                                                     2            to

bruising is sufficient to prove great bodily harm. But Ashcraft involved " ubstantial bodily
                                                                         s
harm,"
     which the trial court defined as a " emporary but substantial disfigurement."71 Wn.
                                        t

App. at 455. This is not the same as a "significant serious permanent disfigurement."Ashcraft

simply does not apply. The evidence here showed permanent disfigurement but not significant

serious permanent disfigurement. We reverse Gomez's conviction of first degree assault.

4"
  Serious permanent disfigurement"is one definition of serious bodily injury."
                                                       "                     Hill,48 Wn.
App. at 347.



                                                      31
No. 42781 8 II
          - -




                                  II. LESSER-
                                            DEGREE OFFENSE


       Alternatively, the State asks that we remand and direct the trial court to enter a finding of

guilt on second degree assault. We agree that this is the proper remedy.

       Our Supreme Court held that remand for imposition of a lesser-included conviction is

proper if 1) trial court instructed the jury on the lesser -included offense and ( ) jury
          ( the                                                                  2 the

necessarily considered the elements of the offense in finding guilt on the greater, reversed,

offense. Green, 94 Wn. d at 234. Our Supreme Court recently reaffirmed this two part
                     2                                                          -

requirement in In re Pers. Restraint ofHeidari, 174 Wn. d 288, 292 94,274 P. d 366 (2012).
                                                      2            -       3

       Here,the trial court explicitly instructed the jury on the lesser-
                                                                        degree offense of second

degree assault. And the jury,in finding guilt on the greater offense, considered all of the

elements of second degree assault. It found that Gomez assaulted Campuzano and did so with a

deadly weapon. We remand for the trial court to enter a conviction for second degree assault.

                                III. PROSECUTORIAL MISCONDUCT


       In his statement of additional grounds, Gomez argues that prosecutorial misconduct

denied him a fair trial. In particular, he argues that the prosecutor misrepresented Dr. Godfrey's

testimony in order to ensure his conviction of first degree assault. We review this claim because,

if valid, Gomez would receive a new trial on the lesser-
                                                       degree offense. See State v. Reed, 102

Wn. d 140, 145, 684 P. d 699 (1984)prosecuting attorney's comments during closing
  2                  2              (

argument may constitute improper misconduct entitling a petitioner to a new trial).

        We review a trial court's ruling on allegations of misconduct during closing argument for

an abuse of discretion. State v. Stenson, 132 Wn. d 668, 718, 940 P. d 1239 (1997).
                                                2                  2              The



                                                 7
No. 42781 8 II
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defendant alleging such misconduct must show that the prosecutor's conduct was both improper

and prejudicial. State v. Emery, 174 Wn. d 741, 756, 278 P. d 653 (2012).We will reverse for
                                       2                  3

prosecutorial misconduct when there is a substantial likelihood that the argument affected the

jury verdict. Emery, 174 Wn. d at 760. But if a defendant fails to object to improper comments
                           2

at trial,request a curative instruction, or move for a mistrial, this court will not reverse unless the

misconduct was so flagrant and ill-
                                  intentioned that no curative instructions could have obviated

the prejudice engendered by the misconduct. Emery, 174 Wn. d 760 61.
                                                         2       -

        Gomez argues that the prosecutor misstated the evidence when he argued in closing the

following: " ou heard Dr. Godfrey say that this was a life threatening injury, and]that
           Y                                                                   [

Campuzano] could have died from that particular injury." (Sept. 27, 2011)at 105. As we
                                                        RP

note above, Dr.Godfrey testified that if the knife had penetrated at a different angle, it could

have killed or seriously injured Campuzano. Dr. Godfrey did not testify that Campuzano could

have died from the actual injury Gomez inflicted. Nonetheless, Gomez fails to show that the

prosecutor's remarks were flagrant and ill-
                                          intentioned or that a curative instruction would not

have obviated any prejudice. Further, the trial court instructed the jury that counsels' statements

are not evidence and to decide the case on the evidence and exhibits given and admitted at trial.

We presume that juries follow the instructions and consider only evidence that is properly
before them."State    v. Perez   -Valdez, 172 Wn. d
                                                2     808, 818 19,265 P. d
                                                               -       3     853 (2011).
No. 42781 8 II
          - -




       We reverse Gomez's conviction of first degree assault and remand for entry of judgment

and sentence for second degree assault.

       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

040,
2.6.it is so ordered.
 0




                                                                    Worswick, C. .
                                                                               J
We concur:

                                  PI




          J.




5 Gomez has not challenged the special verdicts on appeal and absent briefing on the matter, we
do not address whether instruction 19 and the law of the case doctrine apply. See State v. Willis,
153 Wn. d 366, 374, 103 P. d 1213 (2005)unobjected to jury instructions become the law of
        2                   3                (
the case);
         State v. Hickman, 135 Wn. d 97, 105, 954 P. d 900 (1998)State must prove
                                 2                 2              (
additional element in jury instruction because it did not object at trial.).


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