State Of Washington, V. Anthony Johnson ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 84181-5-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
ANTHONY PAUL JOHNSON,
Appellant.
COBURN, J. — Anthony Johnson appeals his convictions for assault in the first
degree with a deadly weapon and assault in the second degree. He argues that the
superior court abused its discretion by categorically refusing to consider both of his
motions for standby counsel. We agree that the superior court did not meaningfully
consider Johnson’s original motion, but conclude that the error was harmless. In a
statement of additional grounds, Johnson also asserts that the court improperly
provided a “First Aggressor” instruction and a “No Duty to Retreat” instruction and that
the convictions were based on insufficient evidence. These claims lack merit.
Accordingly, we affirm. 1
1
On December 18, 2023, Johnson filed a motion to stay these proceedings pending this
court’s decision on his motion to modify the acting chief judge’s order denying Johnson’s motion
to consolidate his personal restraint petition No. 85640-5-I with his direct appeal. This court
denied Johnson’s motion to modify on December 19, 2023, so Johnson’s motion to stay these
proceedings is moot. See State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995) (a case
is moot if the court can no longer provide effective relief).
No. 84181-5-I/2
FACTS
Johnson moved into the Jack Lobdell Apartments in Auburn in 2016. The
apartment complex consists of four two-story buildings with exterior stairs and walkways
and a gated parking lot with assigned parking slots. Johnson believed his neighbors
were maliciously damaging his car, so he would frequently stand in the parking lot
admonishing his neighbors to leave his car alone “or I’m going to start messing with
your car.” Several of Johnson’s neighbors testified that they had witnessed this
behavior on multiple occasions.
Terrence Morgan lived in a second-floor unit adjacent to the parking lot. Morgan
testified that on the afternoon of August 20, 2021, he heard Johnson “screaming more
about the ding in his car” and threatening to “fuck everybody up.” Morgan and “about
seven people” came out of their apartments to see what was going on. Morgan
watched as Johnson returned to his apartment, emerged with an object in his hand, and
shouted “I’m getting ready to fuck every car up in the parking lot.” Morgan was
concerned that Johnson might actually try to damage his vehicle, so Morgan said
“You’re not gonna fuck my car up.” Johnson started coming towards Morgan and said
“Do you want some of this?” Morgan saw that Johnson had a knife with an eight-to-ten-
inch blade in his hand and responded “I’m too old to fight.” Johnson immediately
sprinted across the parking lot and up the stairs to Morgan’s doorstep. Morgan thought
Johnson looked “[v]ery angry and enraged . . . like he was coming to do something.”
At that point, Morgan decided he “need[ed] to get something to fend [Johnson]
off” so he grabbed a “cheap” and “dull” “display sword” from his wall and held it in front
of him. The sword was about an inch wide and 30 inches long, including its 12-inch
2
No. 84181-5-I/3
handle. Johnson grabbed the sword blade with his right hand, causing the metal to
bend, and said “Now what? Now what?” Johnson then stabbed Morgan four times with
the knife in his left hand. Morgan dropped the sword, retreated to his apartment, and
asked neighbors to call 911.
Joshua Swogger lived in an adjacent building in the same apartment complex.
Swogger testified that he saw Johnson walking away from Morgan’s apartment with a
knife in his hand and noticed that Morgan was bleeding. Swogger told Johnson “What
the fuck are you doing? You just stabbed a man. You’re going to jail.” Johnson
responded, “I mean, yeah, I am going to jail, so I might as well fuck you up too.”
Swogger realized Johnson was coming after him, so he ran into his apartment and
closed the front door while Johnson attempted to push it open from the other side.
Swogger “had to use [his] full weight” to push the door closed so he could lock it.
Swogger then heard Johnson’s car “screech out of the parking lot.” Swogger testified
that he was afraid that he or his son would have been stabbed if Johnson had managed
to get inside.
Benjamin Grantham testified that he witnessed both incidents. Grantham heard
Morgan tell Johnson “I’m an old man. I ain’t trying to fight nobody.” Grantham saw
Johnson rush upstairs “like a lightning bolt” and stab Morgan. He then saw Johnson run
down and across to Swogger’s apartment building with the knife in his hand “fly[ing] up
those stairs like I’ve never seen anybody move in my life.” Johnson was “trying to
forcibly enter” Swogger’s apartment and “trying to slash at them” while Swogger was
“trying to shut [the door].” Johnson then “[t]ried to kick the front of people’s doors”
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before getting in his car and driving away. Grantham’s 911 call describing the events in
real time was played to the jury.
Charles Tiffany lived near Morgan in the Lobdell Apartments and spoke with
Morgan almost every day. Tiffany testified that he heard screaming, went outside, and
saw Morgan “holding a shirt on his chest” with “a lot of blood.” Tiffany then saw
Johnson going back upstairs “straight up to [Swogger’s] door.” After Swogger ran to his
apartment and locked the door, Johnson kicked it forcefully, then got in his car and left.
Shirley Lidell, who lived downstairs from Morgan, testified that she saw Johnson argue
with Morgan and stab Morgan in the shoulder with a large knife. She called 911 and
went upstairs to assist Morgan. And Lobdell resident Madrina Contreras testified that
she heard Johnson yelling in the parking lot, saw Johnson walking up the stairs with a
large knife, and heard something about Morgan being stabbed.
Morgan was airlifted in “full code” to Harborview Medical Center, where he was
treated by Dr. Barclay Stewart. 2 Dr. Stewart testified that Morgan suffered three small
stab wounds to the upper part of his right chest and one small stab wound to the right
upper arm. One of the stab wounds punctured Morgan’s lung and created a small
pneumothorax that required overnight monitoring. 3 Morgan was not in shock and did
not need surgery or stitches. Dr. Stewart testified that on a more probable than not
basis Morgan “would have been fine” without medical care but that the wounds could
have been life threatening if they had been deeper.
2
Dr. Stewart explained that a patient such as Morgan with torso and junctional
penetrating injuries triggers a “full code” trauma activation response, meaning that a team of
medical personnel will be in the room waiting when the patient arrives.
3
Dr. Stewart defined “pneumothorax” as a puncture wound resulting in “air accumulating
outside the lungs.”
4
No. 84181-5-I/5
Johnson claimed that he acted in self-defense. He said he was standing in the
parking lot complaining about the damage to his car when Morgan came out and said
“You’re not going to touch my car.” Johnson responded “So stop them from touching
my car.” Morgan responded “I’m too old to fight, okay? But you’re not going to touch my
car.” Johnson said “Well, what are you going to do if I touch your car?” and Morgan
said “If you touch my car, I got something for you.” Johnson said “What do you got?”
and Morgan said “Come up here and I’ll show you.” Johnson said he thought Morgan
was going to give him “some good advice” so he went upstairs. Instead, Morgan
reached inside, grabbed his sword, and “went to stick it in [Johnson’s] chest.” Johnson
grabbed the sword, which he described as “sharp,” and was cut in the process. 4
Johnson said “[d]o you really want to do this?” and Morgan “didn’t say a word” so
Johnson took out his pocketknife, “aimed for [Morgan’s] shoulder,” and walked away.
Johnson said Morgan “ambushed” him and he denied having the pocketknife in his
hand when he went upstairs to speak to Morgan. Johnson went to his car to wait for
police when he heard Swogger shouting at him. Johnson responded “fuck you,” chased
Swogger up the stairs, and drove away. Johnson denied threatening Swogger with a
knife or trying to get into his apartment.
Johnson was arrested the following day after he turned himself in to the Seattle
Police Department. The State subsequently charged Johnson by amended information
with assault in the first degree with a deadly weapon and assault in the second degree.
At his arraignment on September 16, 2021, Johnson announced that he wanted
to represent himself. Johnson then filed a handwritten motion seeking to proceed pro
4
At the time he was arrested, Johnson had “three very small cuts on [his] right upper
extremity.”
5
No. 84181-5-I/6
se with co-counsel or with standby counsel “to ensure all motions, pleadings, etc. are
filed in a timely manner and to interview witnesses and collect evidence outside of my
personal ability to do so – due to my status as an in-custody litigant.”
At a hearing on October 7, 2021, Johnson’s appointed counsel asked the court to
consider Johnson’s request. Before hearing from Johnson, the trial court responded,
“No, this Court will not entertain standby counsel or co-counsel.” When counsel
attempted to respond, the trial court interjected stating, “[t]hat places attorneys in an
untenable position as they have ethical obligations in their practice that, frankly, pro se
defendants may not be aware of.” While the court engaged in a colloquy with Johnson
about proceeding pro se and acknowledged that he earlier represented that he has
proceeded pro se in the past, Johnson started to explain “I have, at which time I did get
standby counsel. But I guess I’m understanding that that’s not going to be – ” The
court interrupted stating, “It’s within the court’s discretion, and I don’t do that.” The court
continued its colloquy whereby Johnson confirmed his understanding of what
proceeding pro se would entail. The court explained that if Johnson represented
himself, the judge is not required to provide him with an attorney as a legal advisor or
standby counsel. Johnson objected to this ruling, which the court noted but overruled.
On October 14, 2021, over Johnson’s objection, the court continued the omnibus
hearing two weeks so the State could provide Johnson with discovery materials. At the
October 27, 2021 omnibus hearing, over Johnson’s objection, the court found good
cause to continue the trial date to November 23, 2021 and reset the speedy trial
expiration date to December 23, 2021 so Johnson could get an investigator and time to
litigate the State’s discovery redactions. At an omnibus hearing on November 9, 2021,
6
No. 84181-5-I/7
Johnson indicated that he was not ready to proceed to trial as scheduled but
nevertheless objected to any further continuance. The court found good cause to
continue the trial date to January 13, 2022 so Johnson could be prepared. Johnson’s
defense investigator was appointed shortly thereafter.
On December 1, 2021, Johnson moved to dismiss for speedy trial violations and
because the prosecutor’s mismanagement of discovery forced him to have to choose
between his speedy trial rights and being prepared to defend himself at trial. On
December 17, 2021, the court denied the motion, finding the November 9, 2021
continuance was appropriate under the circumstances and dismissal was not warranted
because there was no showing that the State had acted in bad faith. The court denied
Johnson’s motion for reconsideration.
On January 13, 2022, the court postponed Johnson’s trial date to February 14,
2022 due to a surge in Covid-19. Johnson then set another motion for appointment of
standby counsel. On February 11, 2022, a hearing took place before a different judge
than the one who denied Johnson’s previous motion. The judge at this hearing asked
Johnson to explain why he wanted standby counsel. Johnson provided three reasons:
(1) the State added a deadly weapon enhancement which implicates different variables
in sentencing; (2) unlike the first request which was before trial, this request is for during
trial in the event there are procedural issues that come up that he may not be aware of;
and (3) requiring Johnson to question himself if he testified would not “play too well” for
his defense in light of the fact there were implications by a witness in the probable
cause statement suggesting Johnson suffered from mental health issues. The trial
court asked whether Johnson’s previous request for standby counsel had been denied,
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No. 84181-5-I/8
and Johnson confirmed that it had. The court then considered and denied Johnson’s
motion, reasoning as follows:
So – and I appreciate the concern about questioning yourself. There are
ways to accomplish that. You know, you’re not the first person and, in
fact, it’s an issue when anyone goes pro se. And I think there are ways to
do that such that if you’re worried, for example, about somehow if there’s
a mental health issue and that you would somehow by participating in that
kind of thing play into that. I think there are ways a trial judge could
mitigate any issue about that. Normally, there may be an instruction that
may be appropriate. Normally, often the judge will let the person testify in
a narrative format. And then of course, you’ll be questioned by the
prosecutor. But that will be up to the trial judge.
I can’t – you know, standby counsel, we’ve not generally appointed. It
was something more commonly done 10 years ago, and I think the court’s
experience wasn’t that great. Frankly, I think I can say that the lawyers
who served as standby counsel weren’t very happy about doing it.
I don’t think what I’ve heard currently justifies standby counsel based on
some of the issues you’ve raised. It frankly seems, albeit you may have
some problems knowing motions, you’ve been pretty, your pleadings have
been appropriate and well done, so.
I can’t comment whether you will ultimately – you mentioned something
about right to go pro se. I can’t comment on what, if you brought a motion
and then you wanted to give up representation, what then would happen,
and you have made no interest in doing that. Sometimes – and it may be
a judge – the State may object, and a judge may or may not allow that.
There have been issues – and I’m not saying this is you – where
defendants have gone back and forth repeatedly, and it delays the trial.
Most of your motions seem to indicate to me you’re eager to go to trial, so
I’m not sure that’s what would be going on. But there’s a history there in
the past of that concern.
So I’m going to deny the motion for standby counsel. It was denied
previously. I haven’t heard a – I think many of the issues you raise could
be handled at a trial in an appropriate way short of having standby
counsel.
The court’s written ruling stated that the motion for standby counsel was denied
because “[a]ppointment of standby counsel is a discretionary ruling by the court at this
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No. 84181-5-I/9
stage of the proceedings” and “[t]he defendant has not articulated sufficiently compelling
reasons to justify the appointment of standby counsel.”
The jury convicted Johnson as charged. Johnson appeals.
DISCUSSION
Standby Counsel
Johnson argues that both trial court judges abused their discretion as a matter of
law by categorically refusing to consider Johnson’s repeated requests for appointment
of standby counsel. A trial court abuses its discretion when its decision is manifestly
unreasonable or exercised on untenable grounds or for untenable reasons. State v.
Enstone, 137 Wn.2d 675, 679-80, 974 P.2d 828 (1999).
Criminal defendants have a right to self-representation under both article I,
section 22 of the Washington State Constitution and the Sixth Amendment to the United
States Constitution. State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010).
Although not required under either the state or federal constitutions, a trial court may
appoint standby counsel to aid a pro se defendant at the defendant’s request. State v.
McDonald, 143 Wn.2d 506, 511, 22 P.3d 791 (2001). Our Supreme Court “has defined
standby counsel’s role as not necessarily representing the defendant but as providing
technical information.” Id. There is no absolute right of pro se litigants to standby
counsel or “hybrid representation” whereby defendants may serve as co-counsel with
their attorneys. State v. DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1 (1991).
Johnson acknowledges that pro se defendants are not entitled to standby
counsel, but argues that the trial court must exercise its discretion to grant or deny such
a request based on the individual circumstances before it. We agree. It is well
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No. 84181-5-I/10
established that a failure to exercise discretion constitutes an abuse of discretion. See,
e.g. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005) (“[w]hile no
defendant is entitled to an exceptional sentence below the standard range, every
defendant is entitled to ask the trial court to consider such a sentence and to have the
alternative actually considered.”); State v. O’Dell, 183 Wn.2d 680, 697, 358 P.3d 359(2015) (failure to meaningfully consider youth as a possible mitigating circumstance in
sentencing); State v. Stearman, 187 Wn. App. 257, 270, 348 P.3d 394 (2015) (refusal to
consider venue motion); State v. Flieger, 91 Wn. App. 236, 242, 955 P.2d 872 (1998)
(failure to conduct a hearing regarding restraints on criminal defendant).
Here, in addressing Johnson’s second motion for standby counsel, the court
meaningfully considered Johnson’s circumstances and made an individualized
determination. The court noted that appointing standby counsel can be problematic, but
did not categorically refuse to consider his request on that basis. Rather, the court
considered and addressed the reasons for Johnson’s request and ruled that “I don’t
think what I’ve heard currently justifies standby counsel based on some of the issues
you’ve raised.” The court also noted that Johnson had demonstrated he was capable of
raising “appropriate and well done” motions and that Johnson’s concerns “could be
handled at a trial in an appropriate way short of having standby counsel.” Thus, the trial
court properly exercised its discretion in denying Johnson’s second motion.
The same cannot be said regarding Johnson’s original motion for standby
counsel. Unlike the second motion, the court that heard Johnson’s first request did not
meaningfully consider the merits of Johnson’s request in light of the specific
circumstances of the case. Instead, the court simply stated that it “will not entertain
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No. 84181-5-I/11
standby counsel” because doing so places attorneys “in an untenable position.” The
court denied Johnson’s request because, in the court’s words, “I don’t do that.”
Although Johnson was not entitled to standby counsel, the court’s categorical refusal to
exercise its discretion to determine whether standby counsel should be appointed in his
case constitutes an abuse of discretion.
The State’s reliance on State v. Davis, 6 Wn. App. 2d 43, 429 P.3d 534 (2018),
rev’d on other grounds, 195 Wn.2d 571 (2020) does not compel a different outcome. In
Davis, the pro se defendant claimed that the trial court abused its discretion by
categorically denying his requests for standby counsel. Id. at 52. This court rejected
the defendant’s claim because the record did not support his argument. Id. at 53.
Specifically, the trial court explained that the defendant failed to demonstrate his need
for standby counsel overcame the ethical and practical concerns of doing so, and
afforded him opportunities to argue that his circumstances had changed since the court
denied his original motion. Id. Unlike Davis, the first trial court judge did not
meaningfully consider Johnson’s request.
Under the nonconstitutional harmless error standard, reversal is required only if
there is a reasonable probability that the error materially affected the outcome of the
trial. State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986). Johnson asserts that
the error was not harmless because the appointment of standby counsel would have
reduced delay and allowed him to more efficiently and effectively represent himself. But
defendants are afforded the right of self-representation “despite the fact that exercising
the right will almost surely result in detriment to both the defendant and the
administration of justice.” State v. Vermillion, 112 Wn. App. 844, 850-51, 51 P.3d 18811
No. 84181-5-I/12
(2002). Johnson does not challenge the validity of his waiver of his right to counsel.
Nor does he identify any other reason that the outcome of the trial might have been
different had standby counsel been appointed. Thus, the error in failing to meaningfully
consider Johnson’s first request for standby counsel is harmless and reversal is not
required.
Statement of Additional Grounds
A. “First Aggressor” Instruction
Over Johnson’s objection, the court granted the State’s request for a “first
aggressor” instruction. 5 Johnson contends the instruction was unwarranted. We
disagree.
Jury instructions are generally sufficient if “they are supported by substantial
evidence, properly state the law, and allow the parties an opportunity to satisfactorily
argue their theories of the case.” State v. Espinosa, 8 Wn. App. 2d 353, 360-61, 438
P.3d 582 (2019). We review the adequacy of jury instructions de novo. State v.
Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002).
“[I]n general, the right of self-defense cannot be successfully invoked by an
aggressor or one who provokes an altercation.” State v. Riley, 137 Wn.2d 904, 909,
976 P.2d 624 (1999). A first aggressor instruction is proper where there is credible
evidence on which a reasonable juror could rely in concluding the defendant was the
aggressor. State v. Sullivan, 196 Wn. App. 277, 289, 383 P.3d 574 (2016). Such an
5
The instruction stated: “No person may, by any intentional act reasonably likely to
provoke a belligerent response, create a necessity for acting in self-defense and thereupon use,
offer, or attempt to use force upon or toward another person. Therefore, if you find beyond a
reasonable doubt that the defendant was the aggressor, and that defendant’s acts and conduct
provoked or commenced the fight, then self defense is not available as a defense. Words alone
are not adequate provocation for the defendant to be the aggressor.”
12
No. 84181-5-I/13
instruction is also appropriate “if there is conflicting evidence” as to the identity of the
first aggressor. Riley, 137 Wn.2d at 910. We analyze the evidence supporting the
instruction in the light most favorable to the party that requested the instruction. State v.
Grott, 195 Wn.2d 256, 270, 458 P.3d 750 (2020).
Johnson asserts that credible evidence demonstrates he did not initiate or
provoke a confrontation with Morgan and that the instruction prejudiced his theory of
self-defense. We disagree. The jury was presented with ample testimony supporting a
finding that Johnson’s conduct precipitated a fight. The fact that Johnson’s testimony
conflicted with that of Morgan and other witnesses did not deprive Johnson of his right
to have the jury to decide whether or not to accept his self-defense claim. The trial
court did not err in giving the first aggressor instruction.
B. “No Duty to Retreat” Instruction
Johnson argues the trial court erred in granting the State’s request for a “no duty
to retreat” instruction. 6 We disagree.
It is well settled that a person has no duty to retreat when they are assaulted in a
place where they have a right to be. State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d
1001 (2003). A “no duty to retreat” instruction is appropriate “where a jury may
conclude that flight is a reasonably effective alternative to the use of force in self-
defense.” State v. Williams, 81 Wn. App. 738, 744, 916 P.2d 445 (1996). A “no duty to
retreat” instruction is typically requested by the defendant in support of a theory of self-
defense. See 11 WASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS:
6
The instruction stated: “It is lawful for a person who is in a place where that person has
a right to be and who has reasonable grounds to believe that he is being attacked to stand his
ground and defend against such attack by the use of lawful force. The law does not impose a
duty to retreat.”
13
No. 84181-5-I/14
CRIMINAL 17.05, at 280 (4th ed. 2016). “The trial court cannot allow the defendant to put
forth a theory of self-defense, yet refuse to provide corresponding jury instructions that
are supported by the evidence in the case.” Redmond, 150 Wn.2d at 495.
Here, as part of his theory of self-defense, Johnson argued that Morgan “did not
take any opportunity to avoid any contact with me” and that he “could have went back
in, shut the door.” The State requested the “no duty to retreat” instruction because it
was concerned that “the jury could use Mr. Morgan’s testimony about not retreating to
prejudice their interpretation of his conduct.” The trial court agreed that the instruction
was appropriate “given that it really is unfair to leave the jury with a question in their
mind as to whether Mr. Morgan should be held to the duty of retreating back into his
apartment when he believed that Mr. Johnson had a knife and was coming up to have a
physical altercation with him.”
Johnson argues that it is highly prejudicial and irregular for the State to propose a
jury instruction designed for the defendant and apply it to an alleged victim over the
defendant’s objection. But Johnson offers no authority for the proposition that it is
improper to give this instruction to explain or justify the conduct of an alleged victim
versus the conduct of a defendant. We conclude that the instruction was appropriate in
light of Johnson’s theory that Morgan could have retreated rather than grabbing a
sword. Contrary to Johnson’s claim, the instruction did not shift the burden of proof or
prevent the jury from considering whether Morgan was the first aggressor.
C. Insufficiency of the Evidence – Assault in the First Degree with a Deadly Weapon
Johnson also argues that insufficient evidence supported his conviction for
assault in the first degree with a deadly weapon. He claims that the evidence fails to
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No. 84181-5-I/15
establish that the knife was used in a manner readily capable of causing death or great
bodily harm and there was no evidence he intended to cause great bodily harm given
that Morgan’s injuries were merely superficial. We disagree.
Due process requires the State prove every element of a crime beyond a
reasonable doubt. State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d 507 (2017). “To
determine whether there is sufficient evidence to support a conviction, we view the
evidence in the light most favorable to the prosecution and determine whether any
rational fact finder could have found the elements of the crime beyond a reasonable
doubt.” State v. Marohl, 170 Wn.2d 691, 698, 246 P.3d 177 (2010). “A claim of
insufficiency admits the truth of the State’s evidence and all inferences that reasonably
can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The court, consistent with RCW 9A.36.011(1)(a), instructed the jury that “[a]
person commits the crime of Assault in the First Degree when, with intent to inflict great
bodily harm, he or she assaults another with any deadly weapon or by any force or
means likely to produce great bodily harm or death.” 7 “Great bodily harm” was defined
as “bodily injury that creates a probability of death, or which causes significant serious
permanent disfigurement, or which causes a significant permanent loss or impairment of
the function of any bodily part or organ.” See RCW 9A.04.110(4)(c). Intent is present
when a person “acts with the objective or purpose to accomplish a result which
constitutes a crime.” RCW 9A.08.010(1)(a). Specific intent may be inferred “as a
7
Under RCW 9A.36.011(1)(a), “[a] person is guilty of assault in the first degree if he or
she, with intent to inflict great bodily harm: . . . [a]ssaults another with a firearm or any deadly
weapon or by any force or means likely to produce great bodily harm or death.”
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logical probability from all the facts and circumstances.” State v. Wilson, 125 Wn.2d
212, 217, 883 P.2d 320 (1994).
Viewed in the light most favorable to the State, it can be inferred from these facts
and circumstances that Johnson used the knife in a manner readily capable of causing
great bodily harm and acted with specific intent to inflict great bodily harm. The
evidence showed that Johnson stabbed Morgan in the chest, puncturing his lung and
causing a pneumothorax. See State v. Langford, 67 Wn. App. 572, 587, 837 P.2d 1037(1992) (stabbing a person in the chest constituted great bodily harm). Morgan was
airlifted to Harborview in “full code” due to the nature of his injuries. And Dr. Stewart
testified that Morgan’s injuries could have been life threatening if the wounds were
deeper.
D. Insufficiency of the Evidence – Assault in the Second Degree
Next, Johnson argues that the State failed to prove beyond a reasonable doubt
that he was armed with a deadly weapon during the assault against Swogger.
The court instructed the jury that “[a] person commits the crime of Assault in the
Second Degree when he or she assaults another with a deadly weapon.” See RCW
9A.36.021(1)(c). And, consistent with RCW 9A.04.110(6), “deadly weapon” was defined
as “any weapon, device, instrument, substance, or article, 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.”8 The instructions further
8
Under RCW 9A.04.110(6), a “deadly weapon” includes any “weapon . . . 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.”
16
No. 84181-5-I/17
stated that a knife having a blade longer than three inches is a deadly weapon, and
whether a shorter knife is a deadly weapon is a question of fact for the jury to decide.
Johnson points out that Swogger and Grantham did not see a knife in Johnson’s
hand while he was coming up the stairs. He also points out that no knife was visible in
his hand on a security video that partially captured the event. But Swogger testified that
the knife was clearly visible in Johnson’s hand while Johnson was walking through the
parking lot after stabbing Morgan and confronting Swogger. And Grantham testified
that after Johnson stabbed Morgan and ran towards Swogger’s apartment, Grantham
saw Johnson at the top of the stairs with a knife. Viewed in the light most favorable to
the State, the evidence is sufficient to establish that Johnson was armed with a deadly
weapon during the assault against Swogger.
E. Report of Proceedings
Lastly, Johnson contends that the verbatim report of proceedings before this
court “is flawed and incomplete in violation of due process of law and Johnson’s State
Constitutional right to an appeal.” He contends that “a plethora of portions of the
transcripts were missing key arguments, discussions and objections and that other
portions inaccurately reported what did occur.” Johnson asserts that his counsel
compared the written transcripts to an audio recording and agreed that there were
errors, but counsel nevertheless refused to take any action.
Johnson did not exercise his right to file an objection to the report of proceedings
under RAP 9.5(c). And he offers no evidence in support of this claim. To the extent
Johnson wishes to raise a claim of ineffective assistance of counsel implicating matters
17
No. 84181-5-I/18
outside the record, the remedy is to bring a personal restraint petition with evidence in
support of the claim. State v. Turner, 167 Wn. App. 871, 881, 275 P.3d 356 (2012).
Affirmed.
WE CONCUR:
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