State Of Washington v. Robert Freedman ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68746-8-1
Respondent, DIVISION ONE
v.
ROBERT MICHAEL FREEDMAN, UNPUBLISHED
Appellant. FILED: September 16. 2013
Cox, J. - Robert Freedman challenges the deadly weapon enhancement
portion of his judgment and sentence for second degree assault, claiming there
was insufficient evidence to find that the aluminum bat he used in the assault
qualified as a deadly weapon. In his Statement of Additional Grounds, he argues
that he received ineffective assistance of counsel. We disagree with both claims
and affirm.
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Freedman and Anthony Lemon worked together for a number of years bs
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longshoremen. One day in August 2011, both men left work around the same—
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time in their vehicles. Freedman testified that he wanted to talk to Lemon aboBJ
a recent incident at work. CD (•-)-• -
At a stoplight on Elliott Avenue in Seattle, Freedman got out of his car and
walked to the driver side window of Lemon's van. A UPS truck driver, who was
stopped behind Freedman's car, testified that it appeared that Freedman and
Lemon were in a verbal argument. At one point, Lemon got out of his van and
No. 68746-8-1/2
Freedman went back to his car to grab an aluminum bat. The men eventually got
back into their vehicles and drove into a nearby parking lot.
In the parking lot, an eyewitness called 911 when he saw Freedman get
out of his car with an aluminum bat and approach Lemon. This witness testified
that Freedman struck Lemon approximately six times with the bat before law
enforcement arrived on the scene.
Lemon testified that he suffered welts and bruises, and he had to go to the
emergency room because of pain and swelling. He also had to see a surgeon
because of a torn bicep muscle.
The State charged Freedman with second degree assault. It also alleged
the Freedman used a deadly weapon for the purpose of a deadly weapon
enhancement.
A jury convicted Freedman as charged, including the deadly weapon
allegation.
Freedman appeals.
DEADLY WEAPON ENHANCEMENT
Freedman argues that the deadly weapon enhancement must be reversed
because the evidence was insufficient to establish that the aluminum bat
qualified as a deadly weapon. We disagree.
Evidence is sufficient to support a conviction if, viewed in the light most
favorable to the State, it permits any rational trier of fact to find guilt beyond a
reasonable doubt.1 "A claim of insufficiency admits the truth of the State's
1State v. Salinas. 119Wn.2d 192, 201, 829 P.2d 1068(1992).
No. 68746-8-1/3
evidence and all inferences that reasonably can be drawn therefrom."2 Matters
pertaining to credibility of witnesses, conflicting testimony, and persuasiveness of
the evidence are the exclusive province of the fact finder.3
For a deadly weapon allegation, the State must prove that an "implement
or instrument. . . 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."4 Whether
a weapon is deadly is a question of fact that the State must prove beyond a
reasonable doubt.5
Here, there was sufficient evidence that the weapon used in this case had
"the capacity to inflict death."6 Eyewitness, Thomas Fleischer, testified that he
saw Freedman use an "aluminum baseball or softball bat" to strike Lemon.
Common sense supports the view that an aluminum bat has the capacity to inflict
death.
Additionally, we note that such a bat is sufficiently similar to a "metal pipe
or bar used or intended to be used as a club," which would make it a deadly
weapon as a matter of law.7
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3 State v. Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
4RCW9.94A.825.
5 State v. Tongate. 93 Wn.2d 751. 753-55, 613 P.2d 121 (1980).
6RCW9.94A.825.
7See id. ("The following instruments are included in the term deadly
weapon: Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any
dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer
No. 68746-8-1/4
In sum, the jury properly determined that the aluminum bat used in this
assault had the "capacity to inflict death."8
The remaining question is whether there was substantial evidence that the
manner in which Freedman used the bat "[was] likely to produce or [could have]
easily and readily produce[d] death."9 We conclude there was such evidence.
Fleischer, the eyewitness, observed Freedman deliver three "quick" strikes
with the bat. For the first strike, Freedman used two hands on the bat and hit
Lemon in the ribs or abdomen with a force that made Lemon move "backwards."
Fleischer testified that Freedman quickly hit Lemon two more times with the bat
in the abdomen using one hand. In total, Fleisher testified that Freedman hit
Lemon six times with the bat though the last three strikes did not look as forceful
as the first three.
Lemon testified that before Freedman started swinging the bat he said he
was going to "teach [Lemon] a lesson." He also testified that Freedman "tried to
hit [him] in the head," but Lemon was able to block him from doing so.
As noted above, Lemon testified that he suffered welts and bruises. He
also stated that he had a torn bicep muscle.
Taking this evidence in the light most favorable to the State, there was
sufficient evidence presented for a rational finder of fact to decide that the
than three inches, any razor with an unguarded blade, any metal pipe or bar
used or intended to be used as a club, any explosive, and any weapon
containing poisonous or injurious gas.") (emphasis added).
8 See id.9 Id.No. 68746-8-1/5
manner in which Freedman used the bat could have "easily and readily
produce[d] death."10
Freedman argues that the State presented "no evidence of the bat's
capacity to inflict actual death." He points out that the State "did not introduce
expert or other testimony regarding how such a bat could be used to inflict actual
death." As we already discussed, the capacity of the aluminum bat to inflict
death is well supported by the evidence. And, as the State points out, Freedman
does not cite any authority requiring an expert witness to testify about an
instrument's capacity to inflict death. This is particularly apparent where the jury
could assess whether the bat had the required capacity without expert testimony.
Freedman also contends that the evidence did not show that the manner
in which he used the bat was "likely to produce or may easily and readily produce
death."11 He points to his testimony that he never tried to hit Lemon in the head
and he avoided hitting him in the head because "he did not want to inflict serious
injury." But, as discussed above, Lemon testified that Freedman tried to hit him
in the head with the bat. We do not review the jury's credibility determinations on
appeal.12
Freedman also highlights the fact that Lemon did not testify that he
"fear[ed] for his life" during the altercation. But absence of this type of testimony
10lcL
11
Brief of Appellant at 11-12 (citing RCW9.94A.825).
12 Recreational Equip., Inc. v. World Wrapps Nw.. Inc., 165 Wn. App. 553,
568, 266 P.3d 924 (2011).
No. 68746-8-1/6
is irrelevant to the jury's charge. Rather, the jury properly determined, based on
the evidence before it, that Freedman was armed with a deadly weapon when he
committed the crime.
In sum, the State presented sufficient evidence for a rational finder of fact
to conclude that Freedman was armed with a deadly weapon when he assaulted
Lemon.
STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds, Freedman raises one issue. He
argues that his counsel was ineffective for not calling any character witnesses to
testify about Freedman's reputation for "peacefulness." This argument is not
persuasive.
To prevail on a claim of ineffective assistance of counsel, a defendant
must show that his counsel's performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced his trial.13 The
reasonableness inquiry presumes effective representation and requires the
defendant to show the absence of legitimate strategic or tactical reasons for the
challenged conduct.14 Failure on either prong defeats a claim of ineffective
assistance of counsel.15
13 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251(1995).
14 McFarland. 127 Wn.2d at 336.
15 Strickland. 466 U.S. at 697; State v. Foster. 140 Wn. App. 266, 273, 166
P.3d 726 (2007).
No. 68746-8-1/7
Here, Freedman fails to show that his counsel's decision not to call any
character witnesses was objectively unreasonable. Freedman's counsel
explained to the trial court that he was not calling any character witnesses to
testify as to Freedman's reputation for peacefulness because it was not disputed
that the physical altercation occurred. Rather, Freedman asserted that he acted
in self-defense. Because Freedman fails to establish deficient performance, we
need not reach the question of prejudice.
We affirm the judgment and sentence.
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WE CONCUR: