                                                                          FILED
                                                                       APRIL 11, 2019
                                                                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
                               DIVISION THREE

 STATE OF WASHINGTON,                         )
                                              )         No. 35775-9-III
                       Respondent,            )
                                              )
           v.                                 )
                                              )
 JUSTIN C. LEWIS,                             )         UNPUBLISHED OPINION
                                              )
                       Appellant.             )

       SIDDOWAY, J. — Justin Lewis challenges the sufficiency of evidence to support

his conviction for first degree assault. It is undisputed that Mr. Lewis was present when

his cousin, David Rickman, struck Michael Evans with a table leg repurposed to serve as

a bludgeon. Viewed in the light most favorable to the State, the evidence demonstrated

that Mr. Lewis participated in the assault as an accomplice.

       Because the evidence was sufficient and Mr. Lewis raises no viable challenge in a

statement of additional grounds, we affirm the conviction. We grant Mr. Lewis’s motion

challenging the trial court’s imposition of criminal filing and DNA1 collection fees, and

remand with directions to strike them.



       1
           Deoxyribonucleic acid.
No. 35775-9-III
State v. Lewis


                    FACTS AND PROCEDURAL BACKGROUND

       On an evening in the spring of 2017, a female acquaintance of Michael Evans

expressed interest in buying hydrocodone he had offered to obtain. She said she would

send her friend, Justin Lewis, to pick up Mr. Evans at the Albertson’s store in Clarkston.

       Mr. Lewis arrived at the grocery store as arranged, and Mr. Evans told him that

they needed to go to an apartment complex in Lewiston Orchards, where he would pick

up the drugs. Mr. Lewis said he needed to stop at his place quickly first. He drove to his

apartment and went inside while Mr. Evans waited in the truck.

       While Mr. Evans waited, a man he did not know but who turned out to be Mr.

Lewis’s cousin, David Rickman, walked out toward the truck and spoke to Mr. Evans.

Mr. Evans’s and Mr. Lewis’s versions of what happened next diverge.

       Mr. Evan’s version of events is that Mr. Rickman noticed he was holding

electrical tape and asked for some, which Mr. Evans provided.2 Mr. Rickman then

walked to the back of the truck, where Mr. Evans heard him talking to someone. He

assumed it was Mr. Lewis, who came back out to the truck shortly after Mr. Rickman.

Mr. Lewis then walked to the front passenger door where Mr. Evans was sitting

sideways, with the door open. Mr. Lewis was holding what appeared to Mr. Evans to be




       2
       Both counsel asked at trial why Mr. Evans was carrying electrical tape. Mr.
Evans had no explanation other than that it is useful.

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No. 35775-9-III
State v. Lewis


a handgun (it turned out to be a BB gun) and began asking him accusatory questions

about the night before, when Mr. Evans had shared some heroin with Michelle Curran,

Mr. Lewis’s girlfriend. It is not clear what Mr. Lewis’s questions implied, but Mr. Evans

objected, telling him, “You’ve got this wrong.” Report of Proceedings (RP) at 167.

       As Mr. Evans sought to placate Mr. Lewis, Mr. Rickman had walked to and

opened the truck’s driver’s side door. He reached in and struck the back of Mr. Evans’s

head with a wooden table leg, to the end of which (using electrical tape) he had attached a

large hex nut bolt. After he was struck a couple of times, Mr. Evans believes (but is not

sure) that Mr. Lewis grabbed him, pulled him out of the truck, and threw him to the

ground. He claims Mr. Lewis and Mr. Rickman continued to kick and beat him while he

was on the ground, telling him to give them his “stuff,” which he assumed meant his

drugs. RP at 169. He was carrying heroin. The two men finally stopped when Ms.

Curran, who Mr. Evans was unaware had arrived at the scene, said, “Hey, that’s enough.”

RP at 170. Seeing Ms. Curran, Mr. Evans pleaded with her to tell the men he had not

done anything. When it appeared she was not going to say anything to help him, he fled.

       He first hid in a field and then sought help at a home in the area, whose owners let

him in and called police. Mr. Evans lied to the responding deputy sheriff, Deputy Nathan

Conley, telling him he was walking down the street when he was jumped by two




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No. 35775-9-III
State v. Lewis


unknown men.3 (He later explained that he lied because he was carrying heroin and did

not want to admit the drug involvement.) That night, however, he provided Deputy

Conley with a description of the men and of the brown and black backpack he claimed

they had taken, which bore the letters “FUL” across the front. He also told the deputy

that after being chased and hiding, he observed a white Chevrolet pickup truck going up

and down the road that he believed was involved. While being interviewed by Deputy

Conley, medics evaluated Mr. Evans, and asked to transport him to a hospital. He

declined the ambulance transport, later explaining that he could not afford it.

       Information provided by Mr. Evans was enough to enable a patrol deputy to locate

Mr. Lewis’s truck and pull it over. The patrol deputy observed a backpack in the truck

that met Mr. Evans’s description. When asked about the backpack, Mr. Lewis told the

patrol deputy it was his. He claimed to know nothing about any assault or attempted

robbery.

       The patrol deputy arranged for Deputy Conley to transport Mr. Evans for a field

showup. When Mr. Evans identified Mr. Lewis as one of his attackers and identified the

backpack, the patrol deputy placed Mr. Lewis under arrest. In a search incident to arrest,

he recovered drug paraphernalia that proved to contain residue. He did not find Mr.

Lewis to be carrying any cash.


       3
         In a conversation with the deputy sheriff the next day, Mr. Evans admitted lying,
that a planned drug exchange had led to the assault, and that he knew Mr. Lewis.

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No. 35775-9-III
State v. Lewis


       Mr. Lewis consented to Deputy Conley’s search of his truck, during which the

deputy located Mr. Evans’s wallet and cell phone. In a search of the bed of the truck, the

deputy found the modified table leg and showed it to Mr. Evans. Mr. Evans expressed

his belief that it was the weapon used in the assault. The deputy sheriff also noticed

blood on Mr. Lewis’s shirt and arranged for it to be taken into evidence once Mr. Lewis

arrived at the jail. DNA in the blood stain on the shirt later proved to be a match for Mr.

Evans. A BB pistol was later found in the passenger compartment of the truck.

       The deputy sheriff read Mr. Lewis Miranda4 warnings and Mr. Lewis agreed to

speak. When asked generally about his activities that evening, he described taking

friends to Walmart and going to his mother’s house, but made no mention of any assault

or robbery. When asked more pointedly about a robbery or assault, Mr. Lewis said he

saw two men assaulting another man, but he was not involved. Asked why, if he was not

involved, he had the victim’s backpack and property, Mr. Lewis said he did not know.

The deputy sheriff later described Mr. Lewis as appearing to be “under some sort of

influence” during the questioning. RP at 66.




       4
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).




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No. 35775-9-III
State v. Lewis


       Later in the evening, on the advice of the deputy sheriff, Mr. Evans went to the

emergency room. He had a wound on the back of his head that was open and bleeding, a

hematoma on his side, a fractured hip, and a broken pelvis.

       Mr. Lewis was charged with first degree assault, first degree robbery, possession

of a controlled substance, and possession of drug paraphernalia. Deadly weapon

enhancements were charged in connection with the first two counts.

       At trial, the State presented evidence of all of the foregoing matters. Mr. Lewis

testified in his own defense. His version of events was largely consistent with Mr.

Evans’s up to the point where Mr. Lewis returned to the truck from his apartment and

began questioning Mr. Evans. Mr. Lewis said he merely asked Mr. Evans “what might

have happened that night before . . . just to get clarification.” RP at 243. He testified that

he never pulled Mr. Evans out of the truck, and that Mr. Evans got out on his own after

being struck two times by Mr. Rickman. He testified that Mr. Evans was “actually

knocked out” by Mr. Rickman’s blows, and that it was he who stopped Mr. Rickman’s

attack by telling him, “That’s enough.” RP at 245. He denied ever striking or kicking

Mr. Evans and testified that he tried to help him. According to him, when Mr. Evans

regained consciousness he started “swinging everywhere” and hit Ms. Curran, who had

approached the truck. RP at 244.

       Mr. Lewis testified he took nothing from Mr. Evans that night. Instead, when Mr.

Evans fled, he left his belongings behind. He claimed the assault on Mr. Evans was

                                              6
No. 35775-9-III
State v. Lewis


committed by Mr. Rickman alone. The only explanation he offered for Mr. Rickman’s

actions was that his cousin “has a very—temper when he—when he’s high.” RP at 261.

       The jury found Mr. Lewis guilty of all counts and returned special verdicts that

Mr. Lewis or an accomplice was armed with a deadly weapon during the assault and the

robbery. Mr. Lewis appeals.

                                        ANALYSIS

       Mr. Lewis makes one assignment of error to the sufficiency of the evidence to

prove he was guilty of first degree assault as a principal, and another to whether the

evidence was sufficient to prove him guilty of first degree assault as an accomplice. The

jury was instructed on accomplice accountability and could have found Mr. Lewis guilty

as a principal or accomplice. We need not examine whether the evidence was sufficient

to prove both.

       First degree assault was charged under RCW 9A.36.011(1)(a). The to-convict

instruction set forth the essential elements the State was required to prove:

              To convict the Defendant of the crime of Assault in the First Degree
       as charged in Count 1, each of the following elements of the crime must be
       proved beyond a reasonable doubt:
              (1) That on or about the 4th day of April 2017, the Defendant or an
                  accomplice assaulted Michael Evans;
              (2) That the assault was committed with a deadly weapon or by a
                  force or means likely to produce great bodily harm or death;
              (3) That the Defendant or the accomplice acted with intent to inflict
                  great bodily harm; and


                                             7
No. 35775-9-III
State v. Lewis


               (4) That the acts occurred in Asotin County, the State of
                   Washington.

Clerk’s Papers (CP) at 27. Mr. Lewis argues that the evidence was insufficient to prove

the second and third elements of the instruction beyond a reasonable doubt.

       The standard of review for a defendant’s challenge to the sufficiency of the

evidence requires us to view the evidence in the light most favorable to the State and

determine “whether any rational trier of fact could have found the elements of the

charged crime beyond a reasonable doubt.” State v. Brown, 162 Wn.2d 422, 428, 173

P.3d 245 (2007). “A claim of insufficiency admits the truth of the State’s evidence and

all inferences that reasonably can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). “In determining the sufficiency of the evidence,

circumstantial evidence is not to be considered any less reliable than direct evidence.”

State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). This court defers to the fact

finder on issues of witness credibility and persuasiveness of the evidence. State v.

Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), aff’d, 166 Wn.2d 380, 208 P.3d

1107 (2009).

I.     THE EVIDENCE WAS SUFFICIENT TO PROVE USE OF A DEADLY WEAPON

       In connection with the second element—that the assault was committed with a

deadly weapon or by a force or means likely to produce great bodily harm or death—the




                                              8
No. 35775-9-III
State v. Lewis


State’s theory was that the repurposed table leg wielded by Mr. Rickman was a deadly

weapon.

       Jurors were instructed that “deadly weapon” means

       any weapon, device, instrument, substance, or article, which under the
       circumstances in which it is used, attempted to be used, or threatened to be
       used, is readily capable of causing death or substantial bodily harm.

CP at 31 (Instruction 9). The circumstances of a weapon’s use include the intent

and present ability of the use, the degree of force, the part of the body to which it

was applied, and the physical injuries inflicted. State v. Winings, 126 Wn. App.

75, 88, 107 P.3d 141 (2005).

       The table leg was used by Mr. Rickman to strike Mr. Evans in the head. Even Mr.

Lewis admitted that it was a “serious weapon” with “a lot of heft.” RP at 251-52. The

leg was admitted into evidence, and in closing argument, the State encouraged jurors to

examine it:

       [L]adies and gentlemen of the jury, pick this thing up. You’ll go back—
       you’ll get—get to take this back with you. Pick it up. Feel the heft. Feel
       the weight on the end. Think about the damage that could be done to a
       person’s skull, striking them with this—this—this implement.

RP at 316.

       In its own closing argument, the defense did not contest the characterization of the

table leg as a deadly weapon. It admitted that evidence Mr. Evans was struck twice in the

back of the head with the table leg “is consistent with what you saw in the pictures.



                                              9
No. 35775-9-III
State v. Lewis


Clearly he was struck.” RP at 330. The defense told jurors that “Mr. Rickman did indeed

attack Mr. Evans.” RP at 331. The defense challenged only whether the State had

proved that Mr. Lewis participated in the assault as a principal or as Mr. Rickman’s

accomplice. The State’s evidence was sufficient to prove use of a deadly weapon.

II.    THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THAT MR. LEWIS AND MR.
       RICKMAN ACTED IN CONCERT AND THAT ONE OR BOTH OF THEM ACTED WITH
       INTENT TO INFLICT GREAT BODILY HARM

       Mr. Lewis makes a multifaceted challenge to the sufficiency of the State’s

evidence to prove that acting as a principal or accomplice, he intended, in assaulting Mr.

Evans, to inflict great bodily harm.

       First degree assault requires proof of specific intent, which is intent to produce a

specific result: in the case of first degree assault, to inflict great bodily harm. State v.

Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). In determining intent, the “jury may

consider the manner in which the defendant exerted the force and the nature of the

victim’s injuries to the extent that it reflects the amount or degree of force necessary to

cause the injury.” State v. Pierre, 108 Wn. App. 378, 385, 31 P.3d 1207 (2001). While

specific intent may not be presumed, the jury may infer it “as a logical probability from

all the facts and circumstances.” State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320

(1994).

       Mr. Lewis first argues the State failed to prove that Mr. Evans sustained great

bodily harm, which was defined for jurors as bodily injury “that creates a probability of

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No. 35775-9-III
State v. Lewis


death or which causes significant, serious impairment, disfigurement or that causes a

significant permanent loss or impairment of the function of any bodily part or organ.” RP

at 288. But the third element of the to-convict instruction required only proof that the

defendant intended to inflict great bodily harm, not that such harm was inflicted,

consistent with RCW 9A.36.011(1)(a).

       Mr. Lewis next argues that the State’s evidence was insufficient to prove even an

intent to inflict great bodily harm. Two of his arguments can be rejected summarily: he

contends there was no evidence of any plan to use the table leg as a weapon, and that Mr.

Lewis stopped the attack by saying, “[T]hat’s enough.” RP at 170. Those arguments

view the evidence in the light most favorable to Mr. Lewis, contrary to the standard of

review. Direct evidence from Mr. Evans established that it was Ms. Curran, not Mr.

Lewis, who uttered words that suspended the attack. And the attackers’ opportunity to

identify the table leg as a weapon, its modification, and Mr. Rickman’s use of it is

sufficient circumstantial evidence of a plan to use it as a weapon.

       Mr. Lewis also argues there was not enough evidence of blood or physical

evidence of a fight at the scene to prove the required intent. He also attaches significance

to the fact that Mr. Evans was well enough to travel to a field showup before going to the

hospital.

       Using a bludgeon to strike someone’s skull and kicking someone on the ground

with enough force to fracture a hip, break a pelvis, and cause the discoloration and

                                             11
No. 35775-9-III
State v. Lewis


swelling observed by Deputy Conley, could be found by a reasonable juror as evincing an

intent to cause great bodily injury. And jurors could reasonably infer that Mr. Rickman

and Mr. Lewis intended more harm than they inflicted, since Mr. Lewis was able to

escape. The evidence was sufficient to prove the required specific intent.

       Finally, Mr. Lewis challenges the sufficiency of the evidence to support his

liability as an accomplice. Specifically, he argues that the State was required to prove his

knowledge that Mr. Rickman intended to inflict great bodily harm. Br. of Appellant at

13.

       A person is an accomplice to a crime if “with knowledge that it will promote or

facilitate the commission of the crime, he or she . . . encourages . . . [another] person to

commit [the crime] . . . or . . . [a]ids or agrees to aid another person in planning or

committing [the crime].” RCW 9A.08.020(3). “[A] jury is not required to determine

which participant acted as a principal and which participant acted as an accomplice.” In

re Pers. Restraint of Hegney, 138 Wn. App. 511, 524, 158 P.3d 1193 (2007). Contrary to

Mr. Lewis’s argument, the State was required to present evidence that Mr. Lewis acted

on a plan to assault Mr. Evans—not that he foresaw that his and Mr. Rickman’s actions

would qualify as first degree assault. It is a longstanding rule that “an accomplice need

not have specific knowledge of every element of the crime committed by the principal,

provided that he, the accomplice, has general knowledge of that specific crime.” In re



                                              12
No. 35775-9-III
State v. Lewis


Pers. Restraint of Sarausad, 109 Wn. App. 824, 835, 39 P.3d 308 (2001). Where the

charge is assault in the first or second degree,

       an accused . . . must have known generally that he was facilitating an
       assault, even if only a simple, misdemeanor level assault, and need not have
       known that the principal was going to use deadly force or that the principal
       was armed.

Id. at 836.

       The evidence was more than sufficient to prove that Mr. Lewis acted as an

accomplice. It included Mr. Evans’s testimony that Mr. Lewis was one of his attackers,

throwing him from the truck onto the ground, and kicking him.

       Even if jurors believed that only Mr. Rickman had inflicted the physical harm,

plenty of circumstantial evidence, viewed in the light most favorable to the State,

supported the State’s theory that Mr. Lewis enlisted his cousin’s help to assault Mr.

Evans and take his heroin. There was a detour to Mr. Lewis’s apartment, where Mr.

Rickman coincidentally appeared and approached Mr. Evans and the truck. Mr. Evans

testified to his belief that Mr. Lewis and Mr. Rickman spoke together quietly before Mr.

Rickman’s attack. While Mr. Lewis distracted Mr. Evans with puzzling questioning, Mr.

Rickman reached through the driver’s side door to strike Mr. Lewis from behind with his

repurposed weapon—an action for which the State’s theory appeared to be the only

plausible explanation. When stopped by police and questioned, Mr. Lewis falsely

claimed that Mr. Evans’s backpack was his and made inconsistent statements (although


                                              13
No. 35775-9-III
State v. Lewis


continually false statements) about what he knew about an assault taking place earlier in

the evening. The search incident to arrest revealed that Mr. Lewis was carrying no

money, yet his reason for picking up Mr. Evans had ostensibly been to make a drug

purchase. Mr. Lewis’s version of events was full of holes. We defer to the jurors’

decision not to believe him.

III.   WE GRANT MR. LEWIS’S MOTION TO REMAND WITH DIRECTIONS TO STRIKE TWO
       LEGAL FINANCIAL OBLIGATIONS (LFOS)

       Relying on State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), which was

decided after Mr. Lewis filed his opening brief, Mr. Lewis filed a motion to strike the

criminal filing and DNA collection fees imposed in his judgment and sentence. Ramirez

holds that amendments made in 2018 to Washington’s legal financial obligation system,

which provide relief to offenders in a number of respects, apply prospectively to cases on

direct review. Id. at 749-50.

       The 2018 amendments prohibit imposition of a $200 criminal filing fee on

defendants who are indigent at the time of sentencing as defined by RCW

10.101.010(3)(a)-(c). RCW 36.18.020(2)(h). Mr. Lewis was found by the trial court to

be indigent for purposes of appeal.

       The amendments prohibit the assessment of a DNA database fee if the State has

previously collected the defendant’s DNA as a result of a prior conviction. RCW

43.43.7541. Mr. Lewis’s criminal history reveals several prior felonies, on the basis of



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No. 35775-9-III
State v. Lewis


which we will accept his contention that his DNA has been collected before. We grant

Mr. Lewis the relief requested by his motion and direct the trial court to strike the $200

filing fee and $100 DNA fee from his judgment and sentence.

                      STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Lewis raises two. He first

argues that the “county jail” had him wear an orange jail-issued shirt at trial. SAG at 1.

Several witnesses, when asked to identify Mr. Lewis in the courtroom, described him as

wearing an orange shirt. Two of them described him as wearing a blue or green shirt

over the orange shirt, however.

       “‘The State cannot, consistent with the rights guaranteed by the Fourteenth

Amendment, compel a defendant to stand trial before a jury dressed in jail attire

identifiable by a jury as such.’” State v. Sanchez, 122 Wn. App. 579, 587, 94 P.3d 384

(2004) (quoting State v. Stevens, 35 Wn. App. 68, 70, 665 P.2d 426 (1983)). Instances

arise where a defendant chooses to stand trial in prison garments, however, so “‘[t]he

particular evil proscribed is compelling a defendant, against his will, to be tried in jail

attire.’” Id. (alteration in original) (quoting Estelle v. Williams, 425 U.S. 501, 508, 96 S.

Ct. 1691, 48 L. Ed. 2d 126 (1976)). Courts require an accused to object to being tried in

jail garments, “‘just as he must invoke or abandon other rights.’” Id. If Mr. Lewis’s

orange shirt was jail attire, he did not object that he was being required to wear it. The

issue was not preserved.

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No. 35775-9-111
State v. Lewis


       Mr. Lewis's second ground is that his trial lawyer failed to strike a juror despite

Mr. Lewis telling the lawyer that the juror had done work at the county jail and would

recognize him as an inmate. Nothing about this appears in the record. Because this court

has no ability to assess this argument without a record, Mr. Lewis's remedy is to seek

relief by personal restraint petition. State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d

1159 (1991 ). To prove ineffective assistance of counsel, he will need to demonstrate that

his trial lawyer's representation was both deficient and prejudicial. See State v.

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Strickland v.

Washington, 466 U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

       We affirm the assault conviction and remand with directions to strike the court's

imposition of the criminal filing and DNA collection fees.

       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.


                                                  Siddoway, J.

WE CONCUR:



                                                    Q_
                                                  Pennell, A. C .J.




                                             16
