FILE D
UOURT OF API:E.ALS DIV I
STATE OF WASHitiGION
20100C1 15 10: 4 1
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, )
) No. 76891-3-1
Respondent, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
)
RESHAUD TODD BROWN, )
)
Appellant. ) FILED: October 15, 2018
)
CHUN, J. — The State charged Reshaud Brown with multiple crimes,
including assault in the second degree. During trial, Brown requested a jury
instruction on assault in the third degree. The trial court denied the request but
issued a jury instruction on assault in the fourth degree in addition to second
degree assault by strangulation. A jury convicted Brown of assault in the second
degree. He appeals the trial court's refusal to issue a jury instruction on assault
in the third degree. He also contends his mandatory life sentence under the
Persistent Offender Accountability Act(POAA)violates the Eighth Amendment of
the United States Constitution and article I, section 14 of the Washington
Constitution as cruel and unusual punishment because of his mental and
emotional deficits. Finding no error, we affirm.
No. 76891-3-1/2
BACKGROUND
On September 21, 2015, the Kent Police Department(KPD)responded to
a call about sounds of a domestic struggle in one of the rooms of a Howard
Johnson motel. Throughout the night before, a couple in the neighboring unit
heard loud noises, crying, and a female voice saying "No, no." The couple
reported the noises to the hotel clerk who called the police.
When they arrived, KPD officers heard a male voice followed by a frantic
female voice saying,"He's killing me. Help me." KPD had obtained a key but
kicked the door open because the woman continued to scream for help. Upon
entering the hotel room, KPD found Brown standing just inside the door with his
girlfriend, Natalie Gumtow,seated in a chair to the right.
KPD officers found Gumtow "extremely frantic." KPD detained Brown and
took a statement from Gumtow. KPD observed marks on Gumtow's neck and
minor scrapes on her arm, legs, and face. Gumtow told KPD Brown had
strangled her with the cord of a Roto Hammer,1 which they found between the
bed and bathroom Of the motel room. Gumtow also reported Brown had told her
the tool was a nail gun and threatened to shoot her with it.
An EMT at the scene evaluated Gumtow and noted red marks on her neck
and leg. Gumtow told the EMT she had been hit and choked. After transfer to
the emergency room, the evaluating physician noted,"R]he patient states that
A Roto Hammer is a tool for drilling concrete.
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she was in a hotel with her boyfriend and he choked her with his hands, and also
wrapped a cord around her neck and was strangling her."
KPD arrested Brown and took him into custody. The State charged Brown
with assault in the second degree by strangulation and felony harassment, both
with domestic violence allegations.2
At trial, Gumtow told a very different version of the events: She testified
she left the hotel to visit her ex-pimp, Mikey, at his apartment to obtain
methamphetamines. Gumtow and Mikey smoked together and Mikey became
upset and began beating her. He wrapped a cord around her neck. Gumtow
thought she blacked out for a few seconds. She eventually left Mikey's
apartment and returned to the Howard Johnson motel. When Gumtow arrived
back at the motel, she told Brown about the incident with Mikey. Brown became
angry and told Gumtow he would leave her for someone else. Gumtow and
Brown argued. Gumtow became upset and began "throwing things, including
Brown's shoes.
Throughout this testimony, the State confronted Gumtow with her prior
statements to police that Brown choked her at least four times that night and
threatened to shoot her with a nail gun, chop her up, or stab her. Gumtow
admitted she told the police Brown assaulted her, but denied any memory of
Brown choking her. She also denied Brown threatened her. She testified Brown
never "put hands" on her. According to Gumtow, she told the police Brown
2 The State amended the information several times to include a charge of tampering with
a witness, and multiple charges of domestic violence felony violation of a court order. None of
these additional charges are at issue on appeal.
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No. 76891-3-1/4
choked her because she was upset and did not want Brown to leave her.
Gumtow denied any wrongdoing by Brown.
Toward the end of trial, Brown requested an instruction for third degree
assault. Brown raised the issue as a request for a lesser included offense
instruction. The trial court refused to give the instruction for third degree assault
as a lesser included offense because second and third degree assault required
different elements. Instead the trial court issued a jury instruction on fourth
degree assault as a lesser degree offense:
The defendant is charged in Count 1 with assault in the second
degree. If, after full and careful deliberation on this charge, you are
not satisfied beyond a reasonable doubt that the defendant is guilty,
then you will consider whether the defendant is guilty of the lesser
crime of assault in the fourth degree.
When a crime has been proved against a person, and there
exists a reasonable doubt as to which of two or more degrees that
person is guilty, he or she shall be convicted only of the lowest
degree crime.
The jury convicted Brown of second degree assault, harassment,
tampering with a witness, and seven counts of violation of a court order. The jury
also found the existence of a domestic relationship between Brown and Gumtow
at the time of commission of all crimes.
Due to prior offenses of first degree burglary and first degree robbery,
Brown's second degree assault conviction constituted his third "most serious
offense" under the POAA. Brown requested the trial court exercise discretion at
sentencing and not impose the life sentence required by the POAA. The trial
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No. 76891-3-1/5
court did not believe it had discretion to deviate from the POAA in this case and
sentenced Brown to life without the possibility of early relief.
Brown appeals.
ANALYSIS
A. Inferior Degree Offense Instruction
Brown claims the jury should have received an inferior degree offense
instruction for assault in the third degree. The State argues the trial court
properly refused the instruction because the evidence did not show Brown
negligently assaulted Gumtow. We agree the evidence failed to establish only
third degree assault and conclude the trial court properly denied the third degree
assault instruction.
"Generally, a criminal defendant may only be convicted of crimes charged
in the State's information." State v. Corey, 181 Wn. App. 272, 275, 325 P.3d 250
(2014). But, a jury may find a defendant guilty of a crime that is an inferior
degree to the crime charged. RCW 10.61.003; State v. Fernandez-Medina, 141
Wn.2d 448, 453,6 P.3d 1150(2000). A trial court may instruct the jury on an
inferior degree offense only when:
(1)the statutes for both the charged offense and the proposed
inferior degree offense 'proscribe but one offense';(2)the
information charges an offense that is divided into degrees, and the
proposed offense is an inferior degree of the charged offense; and
(3) there is evidence that the defendant committed only the inferior
offense.
Fernandez-Medina, 141 Wn. 2d at 454(quoting State v. Peterson, 133 Wn.2d
885, 891, 948 P.2d 381 (1997)).
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No. 76891-3-1/6
Based on Brown's request, the trial court considered whether to give a .
third degree assault jury instruction as a lesser included offense rather than an
inferior degree offense. The legal standard for entitlement to a lesser included
offense differs from that of an inferior degree offense. Fernandez-Medina, 141
Wn.2d at 454. But in this case, any confusion means little because the parties
do not dispute the legal component of the test for entitlement to an inferior
degree offense instruction. See Fernandez-Medina, 141 Wn.2d at 454-55. On
appeal, the parties only dispute the factual element of the test.
Whether to instruct a jury on an inferior degree offense requires the
application of law to facts and is reviewed de novo. Corey, 181 Wn. App. at 276.
We view the supporting evidence in the light most favorable to the party who
requested the instruction. Fernandez-Medina, 141 Wn.2d at 455-56. The
supporting evidence must affirmatively establish the defendant's theory of the
case. Fernandez-Medina, 141 Wn.2d at 456.
A defendant must make a "more particularized" factual showing for an
inferior degree offense instruction than for other jury instructions. Fernandez-
Medina, 141 Wn.2d at 455. The evidence must raise an inference that only the
inferior degree offense was committed. Fernandez-Medina, 141 Wn.2d at 455.
"[W]hen substantial evidence in the record supports a rational inference that the
defendant committed only the lesser included or inferior degree offense to the
exclusion of the greater offense, the factual component of the test for entitlement
to an inferior degree offense instruction is satisfied." Fernandez-Medina, 141
Wn.2d at 461. The inference does not arise merely because the jury does not
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No. 76891-3-1/7
believe the State's evidence. State v. McClam,69 Wn. App. 885, 888, 850 P.2d
1377(1993)(citing State v. Speece, 115 Wn.2d 360, 362, 798 P.2d 294 (1990)).
"[S]ome evidence must be presented which affirmatively establishes the
defendant's theory." State v. Fowler, 114 Wn.2d 59, 67-68, 785 P.2d 808(1990),
overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718
(1991).
The State argued Brown committed assault in the second degree by
strangulation. A defendant is guilty of this category of assault in the second
degree if, "under circumstances not amounting to assault in the first degree," he
or she "assaults another by strangulation or suffocation." RCW 9A.36.021(1)(g).
Brown requested an instruction for assault in the third degree with substantial
pain. Under the proposed instruction, a person commits assault in the third
degree if he or she, under circumstances not amounting to assault in the first or
second degree, "with criminal negligence, causes bodily harm accompanied by
substantial pain that extends for a period sufficient to cause considerable
suffering." RCW 9A.36.031(1)(f). To be entitled to an inferior degree offense
instruction on this type of third degree assault, the evidence must affirmatively
establish Brown did not strangle Gumtow but caused her bodily harm resulting in
substantial pain.
In this case, the State provided evidence from witnesses who testified
Gumtow reported Brown had strangled her. On direct examination, Gumtow
denied Brown had strangled her, attributing the strangulation to Mikey instead.
The State repeatedly countered Gumtow's testimony with reference to her prior
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No. 76891-3-1/8
statements that Brown strangled her, but Gumtow continued to deny the events
and claimed she made the statements because Brown upset her when he
threatened to leave her.
If believed by the jury, this testimony created the inference that Brown did
not commit assault in the second degree by strangulation. In fact, based on
Gumtow's testimony, Mikey caused Gumtow's injuries and Brown did not "put
hands" on her. Rather than establish Brown inflicted bodily harm and substantial
pain as required for third degree assault, this affirmative evidence suggests
Brown never assaulted Gumtow. Therefore, the evidence does not show Brown
committed only the inferior degree offense of third degree assault to the
exclusion of the greater offense of second degree assault.
The conclusion Brown committed third degree assault required the jury to
selectively disbelieve parts of Gumtow's prior statements and her testimony.
Disbelief of evidence of guilt does not satisfy the factual element of the test for an
inferior degree instruction. Fernandez-Medina, 141 Wn.2d at 456. Brown was
not entitled to an instruction for third degree assault.3
B. Ineffective Assistance of Counsel
Brown argues his trial counsel was ineffective for proposing and arguing
the legal standard for a lesser included offense instruction rather than an inferior
3 The State argues third degree assault is inapplicable due to the required element of
"criminal negligence." According to the State, the evidence shows the strangulation was
intentional. Brown correctly argues the issue of criminal negligence is immaterial in this case.
Under RCW 9A.08.010(2),"[w]hen a statute provides that criminal negligence suffices to
establish an element of an offense, such element also is established if a person acts intentionally,
knowingly, or recklessly." Therefore, evidence Brown intentionally strangled Gumtow satisfies the
criminal negligence component.
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No. 76891-3-1/9
degree offense instruction. Brown acknowledges Washington Supreme Court
precedent forecloses this result, but raises the claim to preserve the issue for
future review. In keeping with the binding case law, we conclude counsel was
not ineffective.
The Sixth Amendment of the United States Constitution and article 1,
section 22 of the Washington Constitution guarantees effective assistance of
counsel. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563(1996). To
prevail on a claim of ineffective assistance of trial counsel, a defendant must
prove both deficient performance and prejudice. State *v. Jones, 183 Wn.2d 327,
339, 352 P.3d 776(2015).
Establishing deficient performance requires a showing that counsel's
representation fell below an objective standard of reasonableness based on
consideration of all the circumstances. State v. Thomas, 109 Wn.2d 222, 225-
26, 743 P.2d 816(1987). "[S]crutiny of counsel's performance is highly
deferential and courts will indulge in a strong presumption of reasonableness."
Thomas, 109 Wn.2d at 226. The defendant bears the burden of establishing
deficient performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260(2011).
Prejudice sufficient to support a claim of ineffective assistance of counsel
occurs when counsel's errors were so serious as to deprive the defendant of a
fair trial. Hendrickson, 129 Wn.2d at 78. The defendant must demonstrate a
"reasonable probability that, but for counsel's errors, the result of the trial would
have been different." Hendrickson, 129 Wn.2d at 78.
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No. 76891-3-1/10
A claim of ineffective assistance of counsel is a mixed question of law and
fact that an appellate court reviews de novo. Jones, 183 Wn.2d at 338-39.
Counsel's failure to request a lesser offense instruction does not establish
prejudice, as required for ineffective assistance of counsel, where a jury has
convicted the defendant of the higher offense. Grier, 171 Wn.2d at 43-44; In re
Personal Restraint of Grace, 174 Wn.2d 835, 847, 280 P.3d 1102(2012).
Because courts presume a jury acts according to the law, courts must assume
the jury would not have convicted the defendant of the higher degree offense
unless the State had met its burden of proof. Grier, 171 Wn.2d at 43-44; Crace,
174 Wn.2d at 847.
Here, the jury convicted Brown of second degree assault by strangulation.
Without evidence to the contrary, the presumption holds the jury arrived at this
verdict because the State proved beyond a reasonable doubt that Brown
committed assault by strangulation. As a result, the availability of a compromise
verdict would not have changed the outcome of the trial. Grier, 171 Wn.2d at 44;
Crace, 174 Wn.2d at 847. Brown, therefore, cannot demonstrate prejudice from
trial counsel's failure to properly request an inferior degree offense instruction.
C. Mandatory Life Sentence Under the POAA
Brown contends his mandatory life sentence under the POAA constitutes
cruel and unusual punishment and the trial court erred by failing to exercise its
discretion to impose a lower punishment. Brown premises this claim on his
"characteristics of youth" due to his mental and intellectual deficits. The State
argues the trial court had no discretion in sentencing an adult under the POAA
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No. 76891-3-1/11
and a mandatory life sentence under the POAA has properly withstood
constitutional challenges. We agree.
We review alleged constitutional violations de novo. State v. Siers, 174
Wn.2d 269, 273-74, 274 P.3d 358(2012).
Under the POAA,"[n]otwithstanding the statutory maximum sentence or
any other provision of this chapter, a persistent offender shall be sentenced to a
term of total confinement for life without the possibility of release."
RCW 9.94A.570. The use of "shall" imposes a mandatory requirement unless a
contrary legislative intent is apparent. Erection Co. v. Dep't of Labor and Indus.,
121 Wn.2d 513, 518, 852 P.2d 288 (1993). Therefore, the POAA requires a life
sentence for a persistent offender. This mandatory life sentence under the
POAA does not violate the Eighth Amendment of the United States Constitution
when imposed on a defendant who committed all three strike offenses as an
adult. State v. Witherspoon, 180 Wn.2d 875, 890, 329 P.3d 888(2014).
Brown committed the assault in this case at 27 years of age. He
committed his prior POAA crimes at ages 21 and 22. As an adult persistent
offender, Brown's sentence of life without the possibility of early release was
mandatory and constitutional. The trial court lacked discretion to deviate from
this sentence.
Brown argues his mental and emotional impairments result in a level of
developmental maturity equivalent to a child, which the trial court should have
considered before imposing the life sentence. The Washington Supreme Court
has acknowledged an offender's age has ramifications for the Eighth
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Amendment, such that criminal procedure laws must take a defendant's
youthfulness into account. State v. Houston-Sconiers, 188 Wn.2d 1, 8, 391 P.3d
409(2017)(quoting Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176
L.Ed.2d 825(2010)). As a result, "sentencing courts must have complete
discretion to consider mitigating circumstances associated with the youth of any
juvenile defendant, even in the adult criminal justice system." Houston-Sconiers,
188 Wn.2d at 21. Brown contends the trial court should have exercised this
discretion in his sentencing.
But Brown was not a juvenile when he committed any of his POAA eligible
crimes. While Brown claims his mental and intellectual deficits give him
"characteristics of youth," he fails to provide case law to support the exercise of
discretion in sentencing adults with such disabilities. Given the lack of authority
for this position, we decline to extend Houston-Sconiers to the facts of this case.
Affirmed.
WE CONCUR:
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