FILED
APRIL 11,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30319-5-111 ) Respondent, ) } V. ) ) KENT R. DAVIS, ) UNPUBLISHED OPINION ) Appellant. )
Brown, J. - Kent R. Davis appeals his convictions for second degree assault by
strangulation and second degree assault by reckless infliction of substantial bodily
harm, contending insufficient evidence supports the jury's guilty findings. In his pro se
statement of additional grounds for review (SAG), Mr. Davis repeats his evidence
sufficiency concern, adds a confrontation right concern, and asserts he received
ineffective assistance of counsel at trial. We affirm.
FACTS
Considering Mr. Davis's evidence sufficiency challenge, we relate the facts in the
light most favorable to the State while acknowledging the alleged victims' contrary
recantation testimony. Early on June 19,2011, Mr. Davis's sister, Raylene M. Davis,
and Mr. Davis's fiancee, Judith R. Long, visited Deaconess Medical Center. Officer
Holton Widhalm responded to Deaconess after a caller reported the two women sought No. 30319-5-111 State v. Davis
treatment for domestic violence injuries. Officer Widhalm noted Ms. Davis and Ms.
Long were "shaken" and "scared." Report of Proceedings 1 (RP) at 86. Ms. Davis cried
while Ms. Long appeared upset and angry. Ms. Davis told Officer Widhalm that Mr.
Davis had punched her, backed her up against a wall, and pushed her into a baby seat.
She related Mr. Davis grabbed her hair and "smashed her head into a counter and a
freezer and a wall." RP at 9.1. Ms. Long told Officer Widhalm that Mr. Davis had
punched her, pushed her against a wall, and threw her to the ground when she tried to
help Ms. Davis. She related Mr. Davis grabbed her neck and "choked her to the point
where she lost consciousness and she woke up on the ground." RP at 89.
Photographs admitted at trial showed each woman's injuries.
Dr. Kevin Innes treated each woman. His records stated Mr. Davis "punched,
kicked, choked, and thr[ew Ms. Davis] against a wall." RP at 104. She had a large
bruise extending from the center of her forehead to her hairline, a scrape and swelling
on her nose, and a bloodshot eye caused by a broken blood vessel. Dr. Innes
explained this last injury usually heals within 10 days but affects the eye in the
meantime and can limit vision or even cause blindness. His records stated Mr. Davis
"punched, kicked, and choked" Ms. Long but she did not lose consciousness. RP at
108, 114. She had bruises indicating someone applied pressure or blunt force to her
neck, which could cause swelling and breathing difficulties. Dr. Innes testified a person
1All citations to the Report of Proceedings reference the transcript of trial and sentencing held on October 3,4, and 12,2011.
No. 30319-5-111 State v. Davis
typically cannot breathe normally while someone is choking him or her. Dr. Innes
treated each woman with hydrocodone.
The State charged Mr. Davis with two counts of second degree assault, alleging
he strangled Ms. Long and recklessly caused Ms. Davis substantial bodily harm. At
trial, each woman recanted her prior statements and offered alternative explanations. A
jury, considering the above evidence, found Mr. Davis guilty as charged. He appealed.
ANALYSIS
A. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Davis's convictions for
second degree assault by strangulation and second degree assault by reckless infliction
of substantial bodily harm.
Evidence is sufficient to support a guilty finding if, '''after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d
216, 221, 616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781,61 LEd. 2d 560 (1979)). An evidence sufficiency
challenge "admits the truth of the State's evidence and all inferences that reasonably
can be drawn therefrom." State v. Salinas, 119Wn.2d 192,201,829 P.2d 1068 (1992).
We must defer to a jury's assessment of witness credibility and evidence weight or
persuasiveness. State v. Carver, 113 Wn.2d 591,604,781 P.2d 1308,789 P.2d 306
(1990).
A person commits second degree assault if he or she "[a]ssaults another by
strangulation" or "[j]ntentionally assaults another and thereby recklessly inflicts
substantial bodily harm." RCW 9A.36.021 (1)(a), (g). Under common law,
An assault is an intentional touching or striking of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive, if the touching or striking would offend an ordinary person who is not unduly sensitive.
Clerk's Papers at 63; accord 11 WASHINGTON PRACTICE: WASHINGTON PATIERN JURY
INSTRUCTIONS: CRIMINAL 35.50 & cmt. at 547-50 (3d ed. 2008) (citing State v. Krup, 36
Wn. App. 454, 676 P.2d 507 (1984); State v. Madarash, 116 Wn. App. 500, 513,66
P.3d 682 (2003); RESTATEMENT (SECOND) OF TORTS § 19 & cmt. a (1965».
Strangulation is "cornpress[ing] a person's neck, thereby obstructing the person's
blood flow or ability to breathe, or doing so with the intent to obstruct the person's blood
flow or ability to breathe." RCW 9A.04.11 0(26) .. Substantial bodily harm is "bodily injury
which involves a temporary but substantial disfigurement, or which causes a temporary
but substantial loss or impairment of the function of any bodily part or organ, or which
causes a fracture of any bodily part." RCW 9A.04.110(4)(b).
Intent is "the objective or purpose to accomplish a result which constitutes a
crime." RCW 9A.08.01 0(1 )(a). A jury may reasonably infer a particular intent where a
defendant's conduct plainly indicates it "as a matter of logical probability." State v.
De/marter, 94 Wn.2d 634,638,618 P.2d 99 (1980). Recklessness is disregarding a
known "substantial risk that a wrongful act may occur," where such disregard is "a gross
deviation from conduct that a reasonable person would exercise in the same situation."
RCW 9A.08.01 0(1 )(c).
Mr. Davis compressed Ms. Long's neck when he choked her. The jury could
reasonably infer he obstructed her blood 'flow or ability to breathe because he choked
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FILED
APRIL 11,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30319-5-111 ) Respondent, ) } V. ) ) KENT R. DAVIS, ) UNPUBLISHED OPINION ) Appellant. )
Brown, J. - Kent R. Davis appeals his convictions for second degree assault by
strangulation and second degree assault by reckless infliction of substantial bodily
harm, contending insufficient evidence supports the jury's guilty findings. In his pro se
statement of additional grounds for review (SAG), Mr. Davis repeats his evidence
sufficiency concern, adds a confrontation right concern, and asserts he received
ineffective assistance of counsel at trial. We affirm.
FACTS
Considering Mr. Davis's evidence sufficiency challenge, we relate the facts in the
light most favorable to the State while acknowledging the alleged victims' contrary
recantation testimony. Early on June 19,2011, Mr. Davis's sister, Raylene M. Davis,
and Mr. Davis's fiancee, Judith R. Long, visited Deaconess Medical Center. Officer
Holton Widhalm responded to Deaconess after a caller reported the two women sought No. 30319-5-111 State v. Davis
treatment for domestic violence injuries. Officer Widhalm noted Ms. Davis and Ms.
Long were "shaken" and "scared." Report of Proceedings 1 (RP) at 86. Ms. Davis cried
while Ms. Long appeared upset and angry. Ms. Davis told Officer Widhalm that Mr.
Davis had punched her, backed her up against a wall, and pushed her into a baby seat.
She related Mr. Davis grabbed her hair and "smashed her head into a counter and a
freezer and a wall." RP at 9.1. Ms. Long told Officer Widhalm that Mr. Davis had
punched her, pushed her against a wall, and threw her to the ground when she tried to
help Ms. Davis. She related Mr. Davis grabbed her neck and "choked her to the point
where she lost consciousness and she woke up on the ground." RP at 89.
Photographs admitted at trial showed each woman's injuries.
Dr. Kevin Innes treated each woman. His records stated Mr. Davis "punched,
kicked, choked, and thr[ew Ms. Davis] against a wall." RP at 104. She had a large
bruise extending from the center of her forehead to her hairline, a scrape and swelling
on her nose, and a bloodshot eye caused by a broken blood vessel. Dr. Innes
explained this last injury usually heals within 10 days but affects the eye in the
meantime and can limit vision or even cause blindness. His records stated Mr. Davis
"punched, kicked, and choked" Ms. Long but she did not lose consciousness. RP at
108, 114. She had bruises indicating someone applied pressure or blunt force to her
neck, which could cause swelling and breathing difficulties. Dr. Innes testified a person
1All citations to the Report of Proceedings reference the transcript of trial and sentencing held on October 3,4, and 12,2011.
No. 30319-5-111 State v. Davis
typically cannot breathe normally while someone is choking him or her. Dr. Innes
treated each woman with hydrocodone.
The State charged Mr. Davis with two counts of second degree assault, alleging
he strangled Ms. Long and recklessly caused Ms. Davis substantial bodily harm. At
trial, each woman recanted her prior statements and offered alternative explanations. A
jury, considering the above evidence, found Mr. Davis guilty as charged. He appealed.
ANALYSIS
A. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Davis's convictions for
second degree assault by strangulation and second degree assault by reckless infliction
of substantial bodily harm.
Evidence is sufficient to support a guilty finding if, '''after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d
216, 221, 616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781,61 LEd. 2d 560 (1979)). An evidence sufficiency
challenge "admits the truth of the State's evidence and all inferences that reasonably
can be drawn therefrom." State v. Salinas, 119Wn.2d 192,201,829 P.2d 1068 (1992).
We must defer to a jury's assessment of witness credibility and evidence weight or
persuasiveness. State v. Carver, 113 Wn.2d 591,604,781 P.2d 1308,789 P.2d 306
(1990).
A person commits second degree assault if he or she "[a]ssaults another by
strangulation" or "[j]ntentionally assaults another and thereby recklessly inflicts
substantial bodily harm." RCW 9A.36.021 (1)(a), (g). Under common law,
An assault is an intentional touching or striking of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive, if the touching or striking would offend an ordinary person who is not unduly sensitive.
Clerk's Papers at 63; accord 11 WASHINGTON PRACTICE: WASHINGTON PATIERN JURY
INSTRUCTIONS: CRIMINAL 35.50 & cmt. at 547-50 (3d ed. 2008) (citing State v. Krup, 36
Wn. App. 454, 676 P.2d 507 (1984); State v. Madarash, 116 Wn. App. 500, 513,66
P.3d 682 (2003); RESTATEMENT (SECOND) OF TORTS § 19 & cmt. a (1965».
Strangulation is "cornpress[ing] a person's neck, thereby obstructing the person's
blood flow or ability to breathe, or doing so with the intent to obstruct the person's blood
flow or ability to breathe." RCW 9A.04.11 0(26) .. Substantial bodily harm is "bodily injury
which involves a temporary but substantial disfigurement, or which causes a temporary
but substantial loss or impairment of the function of any bodily part or organ, or which
causes a fracture of any bodily part." RCW 9A.04.110(4)(b).
Intent is "the objective or purpose to accomplish a result which constitutes a
crime." RCW 9A.08.01 0(1 )(a). A jury may reasonably infer a particular intent where a
defendant's conduct plainly indicates it "as a matter of logical probability." State v.
De/marter, 94 Wn.2d 634,638,618 P.2d 99 (1980). Recklessness is disregarding a
known "substantial risk that a wrongful act may occur," where such disregard is "a gross
deviation from conduct that a reasonable person would exercise in the same situation."
RCW 9A.08.01 0(1 )(c).
Mr. Davis compressed Ms. Long's neck when he choked her. The jury could
reasonably infer he obstructed her blood 'flow or ability to breathe because he choked
her into unconsciousness. And, the jury could reasonably infer he intended to do so
because, as a matter of logical probability, choking her while otherwise acting violently
toward her plainly indicated his objective or purpose to do so. Thus, Mr. Davis
strangled Ms. Long. This touching or striking harmed her because it caused
unconsciousness and bruising. And, the jury could reasonably infer it would offend an
ordinary person who is not unduly sensitive because it could cause swelling and
breathing difficulties. Thus, Mr. Davis assaulted Ms. Long. Therefore, a rational jury
could, viewing the evidence in the light most favorable to the State, find the essential
elements of second degree assault by strangulation beyond a reasonable doubt.
Mr. Davis punched, kicked, and choked Ms. Davis; threw her or backed her up
against a wall; pushed her into a baby seat; then grabbed her hair and smashed her
head into a counter, freezer, and wall. This touching or striking harmed her because it
caused her the injuries described below. And, the jury could reasonably infer it would
offend an ordinary person who is not unduly sensitive because of its potential to cause
those injuries. Thus, Mr. Davis assaulted Ms. Davis. He acted intentionally in doing so
because, as a matter of logical probability, his conduct plainly indicated his objective or
purpose to assault her. This intentional assault caused Ms. Davis a temporary but
substantial disfigurement by leaving a large bruise on her forehead, a scrape and
swelling on her nose, and a bloodshot eye. Further, the jury could reasonably infer it
caused her a temporary but substantial loss or impairment of function by breaking the
blood vessel in her eye because this injury affects the eye during healing and can limit
vision or even cause blindness. Thus, Mr. Davis caused Ms. Davis substantial bodily
harm. He acted recklessly in doing so because he disregarded a known substantial risk
he may cause her substantial bodily harm and such disregard was a gross deviation
from conduct a reasonable person would exercise in the same situation. Therefore, a
rational jury could, viewing the evidence in the light most favorable to the State, find the
essential elements of second degree assault by reckless infliction of substantial bodily
harm beyond a reasonable doubt.
Concerning the alleged victims' recantations, we must defer to the jury's
assessment of witness credibility and evidence weight. In sum, we conclude sufficient
evidence supports the jury's guilty findings.
B. Statement of Additional Grounds
First, Mr. Davis expresses an evidence sufficiency concern focusing on the
recantations, but his appellate counsel's brief adequately addressed that issue, rejected
above. See RAP 10.10(a) (providing the purpose of a SAG is to "identify and discuss
those matters which the defendant/appellant believes have not been adequately
addressed by the brief filed by the defendant/appellant's counsel").
Second, Mr. Davis expresses concern his "accuser" did not attend trial,
apparently referencing the caller to law enforcement. But Mr. Davis did not assert his
confrontation right at trial under applicable procedural rules. See State v. Q'Cain, 169
Wn. App. 228, 239-40, 251-52, 279 P.3d 926 (2012) (analyzing Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)). Moreover,
he fails to show how the trial court violated his confrontation right. See Crawford v.
Washington, 541 U.S. 36, 54-55, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (stating a
trial court violates a defendant's confrontation right by admitting testimonial, out-of-court
statements unless the declarant testifies at trial or the defendant had a prior opportunity
to cross-examine the declarant).
Finally, Mr. Davis asserts he received ineffective assistance from his trial counsel
based upon his personal observations that are outside our record. See State v.
McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (stating an appellate court may
not consider matters outside the record when reviewing an ineffective assistance claim
and a defendant must bring a personal restraint petition to introduce other evidence).
Additionally, Mr. Davis expresses concern his trial attorney failed to cross-examine law
enforcement or object when they testified from their reports. But he makes no attempt
to show deficient performance or resulting prejudice. See Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (stating an ineffective
assistance claim requires a defendant to show"counsel's performance was deficient"
and "the deficient performance prejudiced the defense," so failing to show either
element defeats the claim).
Therefore, we reject Mr. Davis's SAG.
No. 30319:'5-111 State v. Davis
Affirmed.
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.
Brown, J.
WE CONCUR: