State v. Shepherd

977 P.2d 635, 95 Wash. App. 787
CourtCourt of Appeals of Washington
DecidedMay 28, 1999
DocketNo. 23042-9-II
StatusPublished
Cited by3 cases

This text of 977 P.2d 635 (State v. Shepherd) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Shepherd, 977 P.2d 635, 95 Wash. App. 787 (Wash. Ct. App. 1999).

Opinion

Seinfeld, J.

— James Shepherd appeals his conviction for second degree assault, arguing that when he struck his victim with his car he was not “armed with a deadly weapon” as the sentence enhancement statute, RCW 9.94A.125, uses that term. We agree, hut reject Shepherd’s claims of ineffective assistance of counsel and insufficiency of the evidence. Thus, we affirm the conviction and reverse the sentence enhancement.

FACTS

Shepherd had an argument with his girl friend, Valerie Glassman, in the presence of Glassman’s daughter. The daughter then told Christopher Manes, Glassman’s former boyfriend, that Shepherd had threatened to hit her mother. Manes became visibly angry.

[789]*789The next day Shepherd drove to the trailer park where Manes lived, looking for Glassman. Manes walked over to Shepherd’s car and with his hands on Shepherd’s open car window warned Shepherd against hitting Glassman. When Shepherd responded by calling Glassman a defamatory name, Manes slapped Shepherd with an open hand and then started walking away.

According to eyewitnesses, Shepherd reacted by backing his car up a short distance and driving forward, hitting Manes, who landed on the vehicle’s hood. Shepherd then applied his brakes, throwing Manes from the hood onto the grass. At that point, two eyewitnesses saw a straight object, about 8 to 12 inches long in Manes’s hand. Shepherd drove away leaving Manes with bruised legs and possibly fractured ribs.

The State charged Shepherd with second degree assault while armed with a deadly weapon. At trial, Shepherd testified that Manes had said, “If I ever hear about you hitting my old lady again, I’ll kill you” and that he was scared, panicked, and wanted to leave after Manes slapped him. Shepherd also said that right before his car struck Manes, he saw Manes reaching for an object in his back pocket that appeared to be a pipe but he could not remember hitting Manes. However, Shepherd admitted seeing Manes on the car hood and then yelling and waving an object as Shepherd drove off.

The trial court instructed on self-defense, using the State’s proposed instruction. The court also instructed the. jury that for purposes of convicting the defendant of second degree assault with a deadly weapon, pursuant to RCW 9A.36.021(l)(c), “deadly weapon” means:

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 injury.

Clerk’s Papers at 38; see RCW 9A.04.110(6).

[790]*790The court further instructed the jury that if it found Shepherd guilty of second degree assault, it must proceed to decide for purposes of a special verdict whether he was “armed with a deadly weapon.” For this purpose, the court instructed the jury that “deadly weapon” means:

[A]n implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are examples of deadly weapons: blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, and any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.

Clerk’s Papers at 41; see RCW 9.94A.125.

During closing argument, defense counsel argued that Shepherd lacked the intent necessary to commit a second degree assault because his actions were the result of fear and panic. Defense counsel did not argue that Shepherd acted in self-defense.

The jury found Shepherd guilty of second degree assault, RCW 9A.36.021(l)(a) and (c), and by special verdict found that he was armed with a deadly weapon, RCW 9.94A.125. The trial court sentenced Shepherd to three months for the assault and twelve months for the deadly weapon enhancement.

DISCUSSION

Deadly Weapon Enhancement

Shepherd, citing RCW 9.95.040 and State v. Ross, 20 Wn. App. 448, 580 P.2d 1110 (1978), claims that the imposition of the deadly weapon enhancement here violated due process. He argues that the relevant statutes do not provide notice that the definition of “armed with a deadly weapon” includes a driver of a vehicle..

[791]*791The State seeks to distinguish Ross, pointing out that it involved RCW 9.95.040, which has different language than RCW 9.94A.125. The State further claims that the sentencing act’s definition of “deadly weapon” must be “read in tandem” with the criminal code’s definition of deadly weapon, which specifically includes a vehicle when used under circumstances where it is “readily capable of causing death or substantial bodily harm.” See RCW 9A.04.110(6).

Interpretation of a statute is a question of law that appellate courts review de novo. In re Post Sentencing Review of Charles, 135 Wn.2d 239, 245, 955 P.2d 798 (1998). The Sentencing Reform Act of 1981 (SRA) currently provides that one year “shall be added to the presumptive sentence” for class B felonies committed after July 23, 1995, if the offender “was armed with a deadly weapon as defined in this chapter.” RCW 9.94A.310(4); see also RCW 9A.36.02K2) (second degree assault is a class B felony). The SRA defines “deadly weapon” as follows:

In a criminal case wherein there has been a special allegation and evidence establishing that the accused . . . was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused . . . was armed with a deadly weapon at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant . . .

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Bluebook (online)
977 P.2d 635, 95 Wash. App. 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shepherd-washctapp-1999.