       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                       )           No. 79675-5-I
                                                )
                        Respondent,             )           DIVISION ONE
                                                )
                v.                              )           UNPUBLISHED OPINION
                                                )
 JOEL EDWARD PAYNE,                             )
                                                )
                        Appellant.              )
                                                )

      HAZELRIGG, J. — This is the second appeal arising from Joel E. Payne’s

convictions for assault in the first degree while armed with a deadly weapon and

malicious harassment stemming from the 2014 stabbing of Randelle Atkins. In

Payne’s first appeal, we reversed and remanded because Payne was denied his

right to counsel in post-trial proceedings and the court erred in calculating his

offender score. On remand, the court appointed counsel for Payne and after

conducting several hearings on the merits, denied his motion to set aside the

verdict and resentenced Payne. Payne now appeals the court’s denial of his post-

judgment motion challenging the verdict. Finding no error, we affirm.


                                            FACTS

      According to the testimony at Payne’s trial, Atkins went shopping alone at

Southcenter Mall on October 10, 2014. After leaving the mall, he decided to stop

at a small convenience store before returning to his vehicle. As he walked to the


 Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 79675-5-I/2


store, Atkins noticed a man walking toward him wearing a mask that completely

covered his face. Atkins and the man passed within a foot of each other.

        When he left the store, the same man, who was now wearing the mask on

top of his head, approached Atkins. Atkins noticed that the man’s face was bruised

and “kind of messed up.” The man, later identified as Payne, accused Atkins of

previously stealing from him and began to loudly yell racial slurs. Atkins was using

his telephone, ignored Payne, and attempted to walk past him. Payne followed

him. Then, Atkins, who was holding his phone in one hand and a shopping bag in

the other, felt that someone was about to touch him and turned around, raising his

arms to try to create space. Payne stabbed Atkins in the chest and then fled on

foot.

        Atkins did not immediately realize he had been stabbed, but when he turned

and entered an AT&T store, people looked at him and screamed. He looked down

and saw that he was bleeding heavily. Atkins dropped the items he was carrying

and asked bystanders to call the police.         An ambulance arrived and medics

inserted a chest tube into Atkins’ lung at the scene and transported him to the

hospital.

        Shortly after, a Sears employee found Payne hiding in a storeroom. Payne

explained that he was hiding from a man who was armed with a gun and asked

the employee not to tell anyone he was there. The employee noticed bruises and

cuts on Payne’s face. The employee notified a loss prevention officer, who called

the police. Several officers gathered to search the storeroom. Following a brief

physical confrontation, they arrested Payne. In a search incident to his arrest, they


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found two knives in his pocket. One of the knives appeared to have blood on the

blade. Police also found a backpack in the storeroom containing various items,

including a mask.

       Detectives searched the area outside the store where the stabbing occurred

and found, among other things, a ring that Atkins had been wearing at the time of

the incident. The detectives photographed, packaged, and placed the ring in

evidence along with other items from the scene. Police interviewed Atkins at the

hospital shortly after the incident, photographed his hands, and collected a

Deoxyribonucleic acid (DNA) sample. A forensic scientist later analyzed the blood

from the knife and determined that it matched the DNA from a sample taken from

Atkins. The photographs did not depict any injuries to Atkins’ hands.

       About a week after the stabbing, Atkins called the lead detective and asked

if his cell phone, eye glasses, and ring could be returned to him. Because the

items had been photographed and he concluded that they did not have any

evidentiary value, the detective returned the items to Atkins.

       Payne brought a pretrial motion to dismiss based on the State’s release of

the ring to the victim before Payne had an opportunity to have it tested for the

presence of DNA. Payne argued that the presence of his own DNA on the ring

would have supported his claim of self-defense by refuting Atkins’ claim that he

never hit him. The court denied the motion. In February 2016, a jury convicted

Payne as charged of assault in the first degree and malicious harassment. The

court imposed a standard range sentence.




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       Payne appealed his convictions and sentence and claimed 1) the release

of the ring to Atkins deprived him of the opportunity to test the ring and violated his

right to due process; 2) the court violated his right to a public trial; 3) he was

deprived of the right to counsel in post-trial proceedings; and 4) the trial court erred

in calculating his offender score. We rejected Payne’s due process and public trial

claims, but agreed that his offender score was miscalculated and that he was

deprived of the right to counsel.       We reversed and remanded for post-trial

proceedings with appointed counsel.

       On remand, Payne filed a motion for arrest of judgment and/or a new trial.

He raised over thirty grounds for relief, including an alleged due process violation

related to the failure to preserve the ring as evidence, insufficiency of the evidence,

and numerous claims of ineffective assistance of counsel, prosecutorial

misconduct, and trial court error. Over the course of two hearings, the court denied

each of Payne’s motions. The court then resentenced Payne and again imposed

a standard range sentence based on a reduced range. He timely appealed.


                                      ANALYSIS

I.     Due Process

       Payne asks this court to revisit our decision in his prior appeal. Based on

the law of the case doctrine, we decline to do so.

       In Payne’s first appeal, we concluded that, although the police initially

placed the victim’s ring into evidence, the release of the ring to Atkins before trial

did not violate Payne’s right to due process. See State v. Payne, No. 75503-0-I at



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slip   op.   at   3   (Wash.   Ct.   App.    March     26,   2018)    (unpublished),

http://www.courts.wa.gov/opinions/pdf/755030.pdf. We assumed for purposes of

our analysis that the ring was “potentially useful evidence”—meaning that it “‘could

have been subjected to tests, the results of which might have exonerated the

defendant.’” State v. Groth, 163 Wn. App. 548, 557, 261 P.3d 183 (2011) (quoting

Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).

A police officer’s failure to preserve such evidence violates due process only if the

defendant can show bad faith, an inquiry that turns on the officer’s knowledge of

the exculpatory value of the evidence at the time it is lost or destroyed. See Groth,

163 Wn. App. at 588; State v. Burden, 104 Wn. App. 507, 512, 17 P.3d 1211

(2001). We held that Payne failed to meet his burden to prove that the lead

detective was aware of the ring’s exculpatory value and therefore acted in bad faith

when he released it to its owner. Payne, slip op. at 3.

       Having determined a legal issue on appeal, we will not ordinarily reconsider

the issue in a later appeal in the same litigation. “In its most common form, the

law of the case doctrine stands for the proposition that once there is an appellate

holding enunciating a principle of law, that holding will be followed in subsequent

stages of the same litigation.” Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d

844 (2005). The doctrine promotes finality and efficiency. State v. Schwab, 163

Wn.2d 664, 672, 185 P.3d 1151 (2008).

       The rule, codified by RAP 2.5(c)(2), is discretionary. Roberson, 156 Wn.2d

at 42. The rule codifies “two historically recognized exceptions to the law of the

case doctrine that operate independently.” Id. “First, application of the doctrine


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may be avoided where the prior decision is clearly erroneous, and the erroneous

decision would work a manifest injustice to one party.” Id. “Second, application of

the doctrine may also be avoided where there has been an intervening change in

controlling precedent between trial and appeal.” Id. There is also authority to

suggest that we may reconsider a legal issue in a subsequent appeal if there is a

“‘substantial change in the evidence at a second determination of the cause.’”

Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988) (quoting

Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965).

        Neither party addresses this doctrine.1            Consequently Payne does not

address the circumstances under which we may exercise our discretion to revisit

a legal determination in a subsequent appeal. Nevertheless, at the superior court

hearing on Payne’s post-trial motion, he argued that our decision did not foreclose

renewal of his due process claim because of new evidence that was not before

this court. Specifically, in support of his motion for a new trial on remand, Payne

supplied evidence of the specific policies that governed the Tukwila Police

Department’s collection, preservation, and release of evidence at the time of the

crime. According to these policies, returning the ring to Atkins before the matter

was adjudicated at trial required approval of the prosecuting attorney’s office and

documentation. The State does not appear to dispute that the detective did not

comply with these policies when he released the ring.



         1 The State asserts that either res judicata or collateral estoppel precludes Payne from

raising the issue on appeal regarding the failure to preserve evidence. Because we apply the law
of the case, we need not address the applicability of either of these “closely related” doctrines.
Roberson, 156 Wn.2d at 41.


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          The new evidence of the police department’s policies does not warrant

reconsideration of Payne’s claim. In rejecting his claim in the first appeal, we noted

Payne’s failure to demonstrate a violation of a particular regulation or explicit

policy.      But as our decision makes clear, this fact was not critical to our

determination. As we explicitly observed, a loss or destruction of evidence that is

in violation of clear policy, does not, of itself, constitute bad faith. Payne, slip op.

at 3; See Groth, 163 Wn. App. at 559.

          The basis for our decision was the lack of evidence in the record of bad

faith. It is well established that as to potentially useful evidence, we apply the

analysis of the United States Supreme Court, which requires a defendant to show

that the failure to preserve evidence was more than merely negligent and provides

that the presence or absence of bad faith hinges on “knowledge of the [apparent]

exculpatory value of the evidence.” Youngblood, 488 U.S. 56, n.* (alterations in

original).    For example, Youngblood involved the police’s handling of a rape

victim’s clothing. Id. at 53-54. Semen stains on the clothing could have possibly

exonerated the defendant had the clothes been tested sooner or been refrigerated.

Id. at 57-58. However, the Court held that the police actions did not amount to bad

faith because failure to perform tests was, at worst, negligent. Id. at 58. In other

words, the police’s failure to realize the potential usefulness of the evidence before

it was destroyed is insufficient to show bad faith.

          Payne challenges our determination that the evidence does not show that

the detective was aware of the potentially exculpatory value of the evidence when

he returned it to the victim. But his arguments in this regard are essentially the


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same as those we considered and rejected when we resolved his first appeal.

Having decided Payne’s due process claim, we see no clear error in our previous

decision which might indicate injustice and no reason to depart from our reasoning.

We therefore decline to revisit his claim.


II.    Sufficiency of the Evidence

       Payne challenges the sufficiency of the evidence to support his conviction

of assault in the first degree.

       To resolve such a challenge, we view the evidence in the light most

favorable to the State and decide whether any rational trier of fact could have found

the elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d

192, 201, 829 P.2d 1068 (1992). We draw all reasonable inferences from the

evidence in favor of the State and interpret the evidence most strongly against the

defendant. Id. We deem circumstantial and direct evidence equally reliable. State

v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Nevertheless, inferences

based on circumstantial evidence must be reasonable and not based on

speculation. State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013). The trier

of fact, not the reviewing court, resolves credibility determinations.      State v.

Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

       First degree assault is an alternative means crime and here, the State

charged Payne with two alternative means. As charged, the State was required to

prove that, “with intent to inflict great bodily harm,” Payne either (1) assaulted

Atkins with a “deadly weapon or by a force or means likely to produce great bodily



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harm or death;” or (2) committed an assault that “resulted in the infliction of great

bodily harm.” RCW 9A.36.011(1)(a), (c). Great bodily harm is defined as “bodily

injury which creates a probability of death, or which causes significant serious

permanent disfigurement, or which causes a significant permanent loss or

impairment of the function of any bodily part or organ.” RCW 9A.04.110(4)(c).

When the State charges alternative means, the jury must unanimously agree that

the crime occurred but need not be unanimous as to which of the alternative means

has been proved so long as sufficient evidence supports each alternative. State

v. Woodlyn, 188 Wn.2d 157, 164, 392 P.3d 1062 (2017).

       Payne claims the State failed to prove that he acted with intent to inflict great

bodily harm. He points out that the stabbing happened quickly. And he claims

that evidence of a single strike with a knife is not indicative of intent to cause great

bodily harm.

       In determining whether the evidence was sufficient to prove the requisite

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 trier of

fact 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). All details of the case may

indicate intent, including the manner and act of inflicting the wound, and also the

nature of the relationship and any prior threats. State v. Ferreira, 69 Wn. App. 465,

468-69, 850 P.2d 541 (1993).


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       We have previously held that stabbing a person in the chest falls within the

“statutory standard of conduct ‘likely to produce great bodily harm or death.’” State

v. Langford, 67 Wn. App. 572, 587, 837 P.2d 1037 (1992) (quoting RCW

9A.36.011(1)(a)).    We have also held that a rational jury could find that the

defendant acted with intent to cause great bodily harm when he stabbed several

people “in the back, chest or stomach,” and one of those people required multiple

surgeries to repair the damage. State v. Huddleston, 80 Wn. App. 916, 922, 912

P.2d 1068 (1996).

       Likewise here, the evidence is sufficient to permit an inference of the intent

to inflict great bodily harm. The State’s evidence showed that after yelling racial

epithets and accusing Atkins of robbing him, Payne plunged a knife into Atkins’

chest with enough force to penetrate the chest cavity, narrowly missing his heart.

His conduct was indicative of intent to cause death or serious permanent injury.

While the knife missed Atkins’ heart, he received prompt treatment, and he

apparently did not suffer a permanent impairment, this outcome was not inevitable.

Atkins’ survival and recovery does not negate Payne’s apparent intent.

       Payne also challenges the sufficiency of the evidence to support one of the

charged alternative means of assault. Specifically, he challenges the sufficiency

of the evidence to establish that he inflicted great bodily harm upon Atkins. He

argues that the only injury Atkins sustained, a collapsed lung, was treatable and

did not create a “probability of death.” RCW 9A.04.110(4)(c). He further argues

that the injuries the treating physician characterized as potentially fatal or likely to




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lead to permanent impairment, were merely injuries Atkins might have suffered

had the knife struck Atkins in a slightly different location.

       But viewing the evidence in the light most favorable to the State, as we

must, we conclude it was sufficient to support the jury’s determination that the

assault resulted in great bodily harm. The treating physician testified that Atkins

suffered a stab wound to the chest that was six centimeters deep, punctured his

lung, and placed him at risk for losing a lung. The injury created a significant risk

of hemorrhage and “massive” blood loss.              The physician explained that a

penetrative injury that endangers the heart and/or significant blood vessels is a

potentially fatal injury. He also testified that the critical factor in penetrative injuries

is the depth of penetration, and in this case, the depth was great enough to cause

serious injury. He specifically agreed that a stab wound to the chest area creates

a probability of death. The logical inference from all the evidence is that the injury

inflicted here, a deep stab wound in the chest cavity, resulted in great bodily harm

by creating a probability of death. Payne’s challenge to the sufficiency of the

evidence fails.


III.   Interest on Legal Financial Obligations

       The sentencing court imposed legal financial obligations consisting of a

$500 victim penalty assessment and restitution.             Under RCW 10.82.090(1),

restitution bears interest that accrues from the date of the judgment but, as of June

7, 2018, other legal financial obligations do not accrue interest.




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       Payne claims that his judgment and sentence requires interest accrual on

all legal financial obligations imposed and therefore must be amended.              We

disagree.    Payne’s judgment and sentence provides that “[f]inancial legal

obligations shall bear interest pursuant to RCW 10.92.090.”            The court also

checked a box that provides, “[i]nterest is waived except with respect to restitution.”

Reading the language of Payne’s judgment and sentence in conjunction with the

statute, it is clear that interest will accrue only on the restitution he was ordered to

pay.

       Affirmed.




WE CONCUR:




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