FILED NOVEMBER 17, 2022 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STATE OF WASHINGTON, ) No. 38131-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) BENJAMIN GORDON SWOFFORD JR., ) ) Appellant. )
LAWRENCE-BERREY, J. — Benjamin Swofford appeals after a jury convicted him
of three counts of second degree assault. He primarily argues there was insufficient
evidence to sustain his convictions for counts 1 and 2 (using a BB gun as a deadly
weapon) and insufficient evidence to sustain his conviction for count 3 (accomplice to
assault with car). We conclude there was insufficient evidence to sustain his conviction
for count 2. We remand with instructions for the trial court to vacate the reversed
conviction, for resentencing, and direct the trial court not to impose community custody
supervision fees due to a recent statutory amendment. No. 38131-5-III State v. Swofford
FACTS
On January 25, 2020, Crystal Couture drove Thomas Reynolds to a convenience
store so he could buy cigarettes; their three-month-old daughter was in the back seat.
On the way out of the store, Mr. Reynolds was confronted by a group of people about a
woman’s purse that had gone missing at a gathering he had attended one year before. Mr.
Reynolds recognized some of the people and told them they could resolve things later, as
he was currently with his family. Ms. Couture could not hear the conversation because
her window was rolled up because it was cold outside. Mr. Reynolds got into the back
seat, behind Ms. Couture, and told her to “take off.” Report of Proceedings (RP) (Mar.
23, 2021) at 135.
As Ms. Couture drove home, Mr. Reynolds noticed a car was following them.
They decided not to return home, instead driving in a large loop and eventually heading
back toward the convenience store. The car continued following. As Ms. Couture
approached a residential intersection, she saw a minivan blocking her way. There was a
man, later identified as Mr. Swofford, standing near the van, pointing what appeared to be
a handgun at her. Ms. Couture was unable to reverse because of the car following her.
She attempted to drive through an adjacent yard, but the minivan lurched forward,
2 No. 38131-5-III State v. Swofford
striking her car and causing it to spin and stall. The car following Ms. Couture then drove
away.
Mr. Swofford ran up to within 10 feet of the back passenger window, pointing the
gun. Mr. Reynolds rolled down his window and put his hands up. Ms. Couture feared
the gunman would shoot them all, including her daughter, and begged Mr. Reynolds to
get out of the car. Although scared, he got out of the car to protect his daughter. After
this, Ms. Couture was able to restart her car, drive away, and call 911.
Mr. Reynolds walked to about five feet from Mr. Swofford, showed him his empty
wallet, and told him he had nothing to steal. The gunman appeared surprised, but then
moved his aim to Mr. Reynolds. The woman who had been driving the minivan, later
identified as Heather Labrie,1 was yelling at the gunman. After pointing the gun at Mr.
Reynolds for about 30 seconds, he walked to the minivan, and Ms. Labrie drove away.
The police located the minivan and detained Ms. Labrie and Mr. Swofford. Ms.
Labrie told police that Mr. Swofford hid a gun under the center console of the minivan.
Officers located the gun and discovered it was an air gun made to fire pellets or BBs.
1 At trial, Mr. Reynolds testified that the woman whose purse had gone missing lived on the corner of the intersection where the assault took place and he believed Ms. Labrie was her sister.
3 No. 38131-5-III State v. Swofford
The State charged Mr. Swofford with three counts of second degree assault with a
deadly weapon: count 1, for threatening Mr. Reynolds with the air gun; count 2, for
threatening Ms. Couture with the air gun; and count three, premised on accomplice
liability, for Ms. Labrie driving the minivan into Ms. Couture’s car.
Trial
In addition to eliciting testimony to establish the facts as outlined above, the State
asked questions of Mr. Reynolds and a person who lived near the incident to establish a
link between Mr. Swofford and Ms. Labrie.
Mr. Reynolds testified about Ms. Labrie’s actions while Mr. Swofford pointed the
gun at him: “[T]he girl behind me was just going off even though she hit us, you know?
She just had [an] issue. She’s going off, going off. And I don’t think he was saying
much.” RP (Mar. 23, 2021) at 229. When asked if Ms. Labrie was still yelling at Mr.
Swofford when he turned and walked away from Mr. Reynolds, Mr. Reynolds answered:
“Oh, yeah . . . . I mean it was her show, you know what I mean? Not saying to stick up
for the dude at all, but . . . she was kind of calling the shots, so to speak.” RP (Mar. 23,
2021) at 231.
Ronald Johnson, who lived near the incident, testified that he looked out his front
door after hearing a car crash. He saw Mr. Swofford pointing a gun at Ms. Couture’s car
4 No. 38131-5-III State v. Swofford
from about two feet away and at Mr. Reynolds as he exited the car. He recalled that Ms.
Labrie “was yelling at [Mr. Swofford] to knock it off. So [Mr. Swofford] went back to
the van . . . .” RP (Mar. 23, 2021) at 279.
The State also called two law enforcement witnesses to describe the gun used by
Mr. Swofford. Officer Ryan Murphy testified that he located the gun in the minivan after
it was impounded. The gun appeared to be an authentic SIG Sauer 1911 firearm, but
when officers began to render the gun safe to enter into evidence, they discovered it was
an air gun. There was a ball bearing, or BB, in the barrel of the gun when the police
found it.
Detective Benjamin Green testified that he had researched the air gun on the
manufacturer’s website, and explained:
There are over a dozen warnings in the manual, to include saying, “This is not a toy”; to be cautious that others may consider it to be a firearm; to include like the range is 250 yards; using eye protection; “It may cause injury or death,” things like that, making it clear that—that on the website this is not a toy.
RP (Mar. 23, 2021) at 291. He testified that the muzzle velocity of the air gun was listed
as 340 feet per second, the equivalent of 231 miles per hour.
He tested the air gun using the manufacturer-recommended carbon dioxide
cartridge and steel BBs. He testified that officers had previously removed the carbon
5 No. 38131-5-III State v. Swofford
dioxide cartridge from the gun before storing it in evidence. He noted that the cartridge
in evidence was empty of carbon dioxide because the process of loading the cartridge
pierces it, allowing the gas to escape from the cartridge once it has been removed from
the gun.
He testified that once the air gun was loaded with carbon dioxide and BBs, he fired
it into the ground to determine if it was operable. Once he determined that it was
operable, he fired it at a metal plate from 25 yards away to determine if the gun could
accurately hit a target. The BBs he fired hit the plate and removed surface paint where
they had struck it. He also fired at a couple of clay pigeons and was able to break them.
The State did not ask Detective Green whether a BB fired from the air gun could
penetrate or break a car windshield or window.
Verdict and sentencing
The jury found Mr. Swofford guilty on all three counts. The court sentenced him
to concurrent sentences of 84 months and imposed 18 months of community custody. It
discussed Mr. Swofford’s other legal financial obligations (LFOs): “$500 Victim
Assessment. I’m going to presume he’s had the DNA[2] collected before, so I won’t order
2 Deoxyribonucleic acid.
6 No. 38131-5-III State v. Swofford
that. I’ll make a finding of indigency. And we’ll say $5 a month, and we’ll start that
January 2nd of next year.” RP (Apr. 8, 2021) at 410.
The court did not alter the standard condition of community custody that Mr.
Swofford pay his supervision fees. In the section regarding LFOs, it included only the
$500 victim assessment. It struck the criminal filing fee, writing “waived by court
finding indigency.” Clerk’s Papers (CP) at 229. It struck the DNA collection fee,
writing “previously paid.” CP at 229.
Mr. Swofford timely appealed.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Mr. Swofford contends there was insufficient evidence to support his three
convictions for second degree assault. We mostly disagree.
In a challenge to the sufficiency of the evidence, we consider “whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact
could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192,
201, 829 P.2d 1068 (1992). We draw all reasonable inferences in favor of the State and
against the defendant. Id. “A claim of insufficiency admits the truth of the State’s
evidence and all inferences that reasonably can be drawn therefrom.” Id.
7 No. 38131-5-III State v. Swofford
Mr. Swofford argues there was insufficient evidence that the air gun was used as a
deadly weapon or that he was an accomplice to Ms. Labrie in her assault. We address
each argument in turn.
1. Evidence that the air gun was a deadly weapon
To convict Mr. Swofford of second degree assault, the jury had to find Mr.
Swofford assaulted Mr. Reynolds and Ms. Couture “with a deadly weapon, to wit: Sig
Sauer 911 CO[2] airgun.” CP at 178-79.
A gun that fires BBs is not a deadly weapon per se because it is not a firearm.
State v. Taylor, 97 Wn. App. 123, 126, 982 P.2d 687 (1999). Thus, whether the air gun
met the definition of a deadly weapon was a question for the jury to decide. Id.
The jury was instructed that a deadly weapon is “any weapon, device, instrument,
substance, or article including a vehicle, 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 184; see also RCW 9A.04.110(6). Substantial bodily
harm “means bodily injury that involves a temporary but substantial disfigurement,
or that causes a temporary but substantial loss or impairment of the function of any
bodily part or organ, or that causes a fracture of any bodily part.” CP at 185; see also
RCW 9A.04.110(4)(b).
8 No. 38131-5-III State v. Swofford
Mr. Swofford relies on State v. Carlson, 65 Wn. App. 153, 828 P.2d 30 (1992),
State v. Skenandore, 99 Wn. App. 494, 994 P.2d 291 (2000), and Taylor, 97 Wn. App.
123, to argue that there was insufficient evidence he used the gun as a deadly weapon.
In Carlson, the defendant approached an acquaintance with what appeared to be a
rifle, pointing it at his face. 65 Wn. App. at 154-55. The victim believed it was rifle but
pushed the barrel of the gun away. Id. at 155. The defendant moved as if to strike the
victim with the gun but then walked away. Id. The gun was not placed into evidence, but
the defendant testified it was an inoperative and unloaded BB gun. Id. He was convicted
of second degree assault with a deadly weapon. Id.
We reversed, finding the facts did not support a finding beyond a reasonable doubt
that the gun was a deadly weapon. Id. at 161. We noted that the only testimony on
whether the gun was readily capable of causing harm came from the defendant, who
testified it was inoperable, and thus there was no substantial evidence the gun was readily
capable of causing substantial bodily harm. Id.
In Taylor, the defendant assaulted three younger boys with a BB gun that
resembled a .45-caliber Colt automatic pistol. 97 Wn. App. at 125. He pointed the gun at
each of the boys, held it within one-half inch of one boy’s head, and yelled threats to
shoot them. Id. The three boys believed the BB gun was a firearm and they were about
9 No. 38131-5-III State v. Swofford
to be shot. Id. The defendant was found guilty of three counts of second degree assault
after the court found he used the BB gun as a deadly weapon, noting that the gun was in
evidence and there appeared to be nothing wrong with it. Id.
We rejected the defendant’s challenge to the sufficiency of the evidence. Id. at
129. We distinguished Carlson, noting that the gun used in the instant case was in
evidence and the trial court expressly noted it appeared functional. Id. at 127.3
In Skenandore, an inmate fashioned a spear from rolled-up writing paper, dental
floss, and a golf pencil. 99 Wn. App. at 496. He assaulted a corrections officer with the
spear, striking him on the chest and upper arm when the officer passed the inmate
breakfast through a port in the cell door. Id. at 496-97. The pencil left marks on the
officer’s shirt and indented red marks on his skin, but it did not tear the shirt or the skin.
Id. at 497. The inmate disassembled the spear and disposed of parts of it before officers
retrieved it. Id. He was convicted of second degree assault after the State argued the
3 In Taylor, we disagreed with Carlson’s conclusion that the BB gun, to be a deadly weapon, must actually be capable of causing death or substantial bodily harm. 97 Wn. App. at 128. We take this opportunity to disagree with Taylor and align ourselves with Carlson. The statute unambiguously defines “deadly weapon” as one “capable of causing death or substantial bodily harm.” RCW 9A.04.110(6). To its credit, the State does not rely on Taylor to assert an incorrect principle of law.
10 No. 38131-5-III State v. Swofford
spear could have caused substantial bodily injury to the officer’s eye. Id. at 497-98.
We reversed, finding there was insufficient evidence the spear was a deadly
weapon. Id. at 498. We reasoned that while there might be circumstances where the
spear could be used as a deadly weapon, they were not present in the case before us.
Id. at 500. We noted the jury had not been able to inspect the weapon, there was no
testimony about the spear’s potential for harm if the inmate had struck the officer in the
face, and the design of the cell door prevented the inmate from reaching the officer’s face
with the spear. Id. We therefore held that “no rational trier of fact could have found that
[the inmate’s] spear was readily capable of causing death or substantial bodily harm under
the circumstances in which it was used.” Id. at 501.
Mr. Swofford contends that because the carbon dioxide cartridge was empty when
Detective Green tested the gun, there is insufficient evidence the gun was capable of
firing. We disagree. The detective testified that installing the cartridge pierces it such
that the gas would have escaped from the cartridge after it was removed from the gun.
This supports the inference that the cartridge was filled with carbon dioxide when Mr.
Swofford was using the gun and the gun was capable of propelling a BB toward Ms.
Couture or Mr. Reynolds.
11 No. 38131-5-III State v. Swofford
In addition, there is substantial evidence to sustain the jury’s verdict that Mr.
Swofford committed second degree assault against Mr. Reynolds. Mr. Swofford pointed
the gun at Mr. Reynolds from two to five feet away. A rational jury could find that the
weapon, if fired at Mr. Reynolds’s face, could have readily caused the loss of his eye or
caused a substantial impairment of his vision. We affirm Mr. Swofford’s conviction on
count 1.
But we agree there is not substantial evidence to sustain the jury’s verdict that Mr.
Swofford committed second degree assault against Ms. Couture. Ms. Couture’s window
was rolled up throughout the encounter. The State submitted no evidence of what a BB,
even fired at close range, could do to a car windshield or window. Nor was there any
evidence that the same force that could break a clay pigeon could break a car windshield
or window. Clay pigeons are made to break when a small projectile hits them; car
windows are made to not break when a small projectile hits them. The State’s evidence
required the jury to speculate, rather than use reasonable inferences. Evidence is
insufficient to support a guilty verdict if mere speculation, rather than a reasonable
inference, supports it. State v. Hummel, 196 Wn. App. 329, 357, 383 P.3d 592 (2016).
We reverse Mr. Swofford’s conviction on count 2.
12 No. 38131-5-III State v. Swofford
2. Evidence of accomplice liability
To convict Mr. Swofford of being an accomplice to Ms. Labrie’s assault with the
minivan, the jury had to find Mr. Swofford “aid[ed] or agree[d] to aid another person in
planning or committing the crime.” CP at 190; see also RCW 9A.08.020(3)(a)(ii). To be
convicted as an accomplice, a defendant “need not have specific knowledge of every
element of the crime committed by the principal, provided he has general knowledge of
that specific crime.” State v. Roberts, 142 Wn.2d 471, 512, 14 P.3d 713 (2000)
(alteration in original).
Mr. Swofford contends he was merely present at the scene of Ms. Labrie’s assault,
which is insufficient evidence that he aided her in committing the assault. We disagree.
There is ample evidence that Mr. Swofford aided Ms. Labrie in planning or committing
the crime. Mr. Swofford and Ms. Labrie acted in concert to stop Ms. Couture’s car. Mr.
Swofford was near the van when the incident started, and he left in the van when the
incident ended.
Mr. Swofford also contends there is insufficient evidence he aided or agreed to aid
Ms. Labrie in the commission of the crime, i.e., the crime of second degree assault. An
accomplice charged with second degree assault “‘must have known generally that he was
facilitating an assault, even if only a simple, misdemeanor level assault, and need not
13 No. 38131-5-III State v. Swofford
have known that the principal was going to use deadly force . . . .’” State v. McChristian,
158 Wn. App. 392, 401, 241 P.3d 468 (2010) (quoting In re Pers. Restraint of Sarausad,
109 Wn. App. 824, 836, 39 P.3d 308 (2001)). Here, a rational jury could find that Mr.
Swofford and Ms. Labrie acted together for one purpose: to stop Ms. Couture’s car. Mr.
Swofford pointed a gun at Ms. Couture, placing her in reasonable fear for her life, while
Ms. Labrie used the minivan to block the road. Mr. Swofford knew that he was not only
facilitating an assault, he was committing one. Under such circumstances, it is immaterial
whether he knew that Ms. Labrie would use deadly force to accomplish their joint
purpose. We conclude the State presented sufficient evidence to sustain the jury’s guilty
verdict on count 3.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. Swofford contends trial counsel was constitutionally ineffective for failing to
object to testimonial hearsay. We disagree.
We review a claim of ineffective assistance of counsel de novo. State v. Estes, 188
Wn.2d 450, 457, 395 P.3d 1045 (2017). To prevail on an ineffective assistance claim, the
defendant must meet the two-pronged Strickland4 test and show (1) defense counsel’s
4 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
14 No. 38131-5-III State v. Swofford
representation was deficient, and (2) the deficient representation prejudiced the
defendant. Id. at 457-58. “If a defendant centers their claim of ineffective assistance of
counsel on their attorney’s failure to object, then ‘the defendant must show that the
objection would likely have succeeded.’” State v. Vazquez, 198 Wn.2d 239, 248, 494
P.3d 424 (2021) (quoting State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541 (2019)).
Mr. Swofford contends trial counsel’s performance was deficient because he failed
to object to hearsay from Mr. Reynolds and Mr. Johnson regarding Ms. Labrie’s
statements at the scene. However, none of the challenged statements were hearsay.
“Hearsay” is an out-of-court statement “offered in evidence to prove the truth of
the matter asserted.” ER 801(c). It can be an oral or written assertion or “nonverbal
conduct of a person, if it is intended by the person as an assertion.” ER 801(a)(2).
Hearsay includes only factual assertions, not orders, commands, questions, or requests.
State v. Kelly, 19 Wn. App. 2d 434, 449, 496 P.3d 1222 (2021), review denied, 199
Wn.2d 1002, 504 P.3d 827 (2022). Testimony about facts based on a witness’s
observations is not hearsay. State v. Powell, 126 Wn.2d 244, 265, 893 P.2d 615 (1995).
Mr. Swofford challenges two statements by Mr. Reynolds. The first is his
testimony that Ms. Labrie was yelling and “was just going off even though she hit us . . . .
She’s going off, going off.” RP (Mar. 23, 2021) at 229. The second is his testimony that
15 No. 38131-5-III State v. Swofford
Ms. Labrie “was kind of calling the shots, so to speak.” RP (Mar. 23, 2021) at 231. Mr.
Swofford contends these statements were offered to prove the truth of the matter asserted,
“that these individuals were accomplices or were working together.” Br. of Appellant at
41. This argument misunderstands the definition of “hearsay.” While Mr. Reynolds’s
statements may contain assertions of fact to that effect, they are in-court assertions of fact
by him, not out-of-court assertions by Ms. Labrie. Mr. Reynold’s testimony contains no
assertions of fact made by Ms. Labrie. Instead, they are Mr. Reynolds’s impressions of
events based on his observations of Ms. Labrie’s behavior. The statements are not
hearsay. Powell, 126 Wn.2d at 265.
Mr. Swofford next challenges Mr. Johnson’s testimony that Ms. Labrie was
“yelling at [Mr. Swofford] to knock it off.” RP (Mar. 23, 2021) at 279. Mr. Swofford
contends that this statement was offered to prove “that [he] was doing something
untoward.” Br. of Appellant at 41. While this testimony contains an out-of-court
statement by Ms. Labrie, it contains no factual assertion that Mr. Swofford was doing
something untoward. Instead, it is an order or command from Ms. Labrie to Mr.
Swofford, from which there is a possible inference that Ms. Labrie believed Mr. Swofford
was doing something untoward. This, however, is not hearsay. Kelly, 19 Wn. App. 2d at
449.
16 No. 38131-5-III State v. Swofford
Mr. Swofford cannot show that trial counsel’s performance was deficient. If trial
counsel had objected to any challenged testimony as hearsay, the objection would not
have been successful because the testimony was not hearsay.5 Because Mr. Swofford
cannot meet the first prong of the Strickland test, we need not address the second. Crow,
8 Wn. App. 2d at 507. Mr. Swofford’s ineffective assistance of counsel claim fails.
C. IMPOSITION OF SUPERVISION FEES
Mr. Swofford contends the trial court improperly imposed discretionary
supervision fees when he was indigent. We disagree with his argument, but it
nevertheless is moot due to a recent statutory amendment.
Earlier this year, the legislature amended the community custody statute. See
SECOND SUBSTITUTE H.B. 1818, 67th Leg., Reg. Sess. (Wash. 2022). The amendment
has an effective date of July 1, 2022, and deletes former RCW 9.94A.703(2)(d) (2018).
The former subsection required defendants to pay community custody supervision fees,
unless waived by the trial court. This amendment will apply at resentencing. Because the
amended statute no longer permits imposition of community custody supervision fees,
5 Because the challenged statements contain no factual assertions by Ms. Labrie and they are therefore not hearsay, we do not address Mr. Swofford’s argument that the statements were testimonial hearsay in violation of the confrontation clause of the Sixth Amendment to the United States Constitution.
17 No. 38131-5-III State v. Swofford
those fees must not be imposed on remand.
Affirm in part, reverse in part, and remand for resentencing.
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.
Lawrence-Berrey, J.
WE CONCUR: j
;i?d/4 Siddoway, C . ~ I~&• Staab, J.