State Of Washington, V. John A. Royball ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
November 2, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54419-9-II
Respondent,
v.
JOHN ALLEN ROYBALL, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — John Royball appeals his convictions and sentence for first degree
assault and two counts of reckless endangerment. We hold that there was sufficient evidence for
a reasonable jury to find Royball intended to inflict great bodily harm, and Royball fails to show
that his counsel’s performance prejudiced him. We also accept the State’s concession that the
trial court erred when it imposed a jury demand fee and a Department of Corrections (DOC)
supervision fee. Accordingly, we affirm Royball’s convictions and sentence and remand to
strike the jury demand fee and DOC supervision fee.
FACTS
I. BACKGROUND
In September 2019, Sonia Pointer was staying with her mother Donna Karthauser at
Karthauser’s duplex in Kelso. John Royball lived in the other unit, next to Karthauser. Royball
and Pointer never dated, but had kissed.
No. 54419-9-II
On the evening of September 20, Pointer invited Mark Rubon over. Pointer and Rubon
had an on-again-off-again romantic relationship. Pointer and Rubon were sitting at a small table
in a carport connected to the duplex in front of Karthauser’s unit, drinking alcohol.
Royball arrived and parked his car in the carport. He had been drinking before he
arrived. Royball got out of his car and flicked a cigarette that hit Rubon in the chest. Rubon got
up and shoved Royball in the chest with both hands, knocking Royball to the ground. Rubon
returned to his chair and Royball went into his unit.
Royball retrieved a 9mm pistol from his house but was unable to load it, so he got a .40
caliber pistol out of his closet and loaded it. He went outside and fired the gun three times
“down the alleyway, or the breezeway” through the carport toward where Rubon was sitting.
Verbatim Report of Proceedings (VRP) at 335. Rubon fled up a hill into the woods near the
building while Royball continued firing shots.
Kelso police officers responded. After interviewing Rubon and Pointer, the officers
arrested Royball in his residence.
The State charged Royball with one count of attempted first degree murder, one count of
first degree assault, and two counts of reckless endangerment. The State also alleged facts to
support firearm sentencing enhancements for the attempted murder and assault charges. The
case proceeded to a jury trial in February, 2020.
II. TRIAL
At trial, witnesses testified to the facts stated above. Additionally, Rubon testified that he
saw “a round circle of sparks” coming out the end of the gun. Based on this and his past
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experience, he believed the gun was pointed directly at him. After the second shot, he ran up a
hill behind the house and took cover as Royball continued to shoot.
Police Detective Craig Christianson testified regarding the investigation he conducted
into the events of September 20. The jury was shown photographs of the shooting scene.
Detective Christianson testified as to gunfire analysis he conducted using lasers.
Detective Christianson testified that he found six empty casings at the scene. Using
photo exhibits, Detective Christianson testified that of the six shots fired, three bullets hit the
carport roof or rafters. He then testified that using a laser to track the trajectory of the holes in
the carport, he was able to determine where the shooter had been standing. Based on this
trajectory, Detective Christianson testified that the three shots that hit the carport were fired from
a gun held horizontally from across the carport, not pointed into the air. Detective Christianson
then testified that the increasing angle of the bullets’ entry into the carport was consistent with a
shooter experiencing the firearm recoil during rapid fire and the muzzle rising up. He testified
that three bullets were unaccounted for.
Royball testified that due to the darkness, he could not see Rubon when he emerged from
his residence with the pistol. He admitted that he fired the gun six times but testified that he was
not aiming for Rubon; he wanted only to scare him off. He testified he was trying to fire
between the roof of the house and the carport so that he would not hit anything.
The jury found Royball guilty of first degree assault and two counts of reckless
endangerment, but found him not guilty of attempted first degree murder. The jury also returned
a special verdict that Royball was armed with a firearm during the assault.
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III. SENTENCING
At sentencing, the State requested the low end of the standard sentencing range.
Royball’s counsel asked that “the Court find any leniency that it may find available to Mr.
Royball.” VRP at 440. He stated that it was an “alcohol-fueled incident” and asked the court “to
make any reduction in the sentence that the Court finds appropriate.” VRP at 440.
The court then reviewed possible mitigating factors available for “departures from the
standard guidelines.” VRP at 442-43. The court stated:
So, if there’s any mitigating factors to your case, and I’m reviewing those
and there’s about 15 or so. The first one deals with – it specifically says, ‘To a
significant degree the victim was an initiator, willing participant, aggressor, or
provoker of the incident.’ I think that that very well could apply in your situation.
The second one does not apply, there was no compensation or anything done
with the damages.
The third one, that you were under duress, coercion, threat or compulsion
that didn’t constitute a full defense of self or others. I think that does sort of apply
in this case. I did listen to all of the facts in this case. I am aware of the
circumstances that were alleged, and really what led up to this, there really wasn’t
a whole lot of disagreement about.
The remaining factors, (d) through (k) none of – none of those apply.
So, I’m in a situation where two of 11 mitigating factors apply, and at this
point I’m not sure that that’s significant enough to deviate from the standard range
sentence in this case. So, I am going to impose the 153 months, the low end of the
standard range on Count II in this case.
VRP at 443.1
1
The statutory factors the trial court reviewed are those from RCW 9.94A.535(1).
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The trial court then added 36 months of community custody and required that Royball
undergo substance abuse treatment.2 Despite finding Royball indigent, the court imposed a
crime victim assessment fee, jury demand fee, DNA collection fee, and the DOC supervision
fees.
Royball appeals.
ANALYSIS
Royball argues that there was insufficient evidence to support his conviction for first
degree assault and that he received ineffective assistance of counsel during sentencing. These
arguments fail. The State concedes that the trial court erred when it imposed a jury demand fee
and the DOC community supervision fee.
I. SUFFICIENT EVIDENCE
Royball argues that the State presented insufficient evidence to convict him of first
degree assault because it did not prove that he acted with intent to inflict great bodily harm. We
disagree.
To determine the sufficiency of the evidence, we view the evidence in the light most
favorable to the State and assess whether any rational trier of fact could have found guilt beyond
a reasonable doubt. State v. Yishmael, 195 Wn.2d 155, 177, 456 P.3d 1172 (2020). We draw all
reasonable inferences in favor of the State and assume the truth of the State’s evidence. State v.
Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019), cert. denied, Scanlan v. Washington, 140 S.
2
The trial court also imposed and suspended 364 days on each of the reckless endangerment
convictions, to run concurrently with the assault conviction.
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No. 54419-9-II
Ct. 834, 205 L. Ed. 2d 483 (2020). We do not review credibility determinations. State v.
Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We consider direct and circumstantial
evidence as equally reliable. State v. Dillon, 12 Wn. App. 2d 133, 140, 456 P.3d 1199, review
denied, 195 Wn.2d 1022 (2020).
RCW 9A.36.011(1)(a) provides: “A person is guilty of assault in the first degree if he or
she, with intent to inflict great bodily harm: . . . Assaults another with a firearm or any deadly
weapon or by any force or means likely to produce great bodily harm or death.” “‘Great bodily
harm’ means bodily injury which 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.” RCW 9A.04.110(4)(c).
Viewing the evidence in the light most favorable to the State, any reasonable jury could
have found beyond a reasonable doubt that Royball intended to cause great bodily harm to
Rubon. A gunshot can inflict death or permanent disfigurement. Royball admitted to firing the
gun six times. Rubon saw a circle of sparks coming from the end of the gun, and testified that it
appeared the firearm was pointed directly at him. This is supported by Detective Christianson’s
testimony that the three shots that hit the carport were fired from a gun held horizontally from
across the carport toward Rubon and not pointed into the air.
Likewise, Detective Christianson testified that three bullets were unaccounted for, but
that the increasing angle of the bullets’ entry into the carport was consistent with a shooter
experiencing the firearm recoil during rapid fire and the muzzle rising up. Viewing this evidence
in the light most favorable to the State, it is reasonable to infer that Royball fired the six shots in
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Rubon’s direction, that he fired the first three shots at a lower trajectory, and that the muzzle of
the gun rose as he fired each shot. Based on all the evidence, a reasonable jury could conclude
that Royball shot the gun at Rubon and intended to cause great bodily harm as required by RCW
9A.36.011(1)(a).3
Firing a gun at a victim is sufficient evidence for a jury to find intent. See, e.g., State v.
Hoffman, 116 Wn.2d 51, 84-85, 804 P.2d 577 (1991) (“Proof that a defendant fired a weapon at a
victim is, of course, sufficient to justify a finding of intent to kill.”); State v. Odom, 83 Wn.2d
541, 550, 520 P.2d 152 (1974) (holding the jury was entitled to find intent to kill from the
defendant firing a gun at the victims); State v. Mann, 157 Wn. App. 428, 440, 237 P.3d 966(2010) (holding that the defendant firing his weapon at a police officer was sufficient evidence to
support first degree assault conviction). Thus, our “courts hold that firing a gun is sufficient
evidence of intent to cause great bodily harm.” State v. Alcantar-Maldonado, 184 Wn. App.
215, 227, 340 P.3d 859 (2014) (summarizing the above cases).
Royball argues that State v. Ferreira, 69 Wn. App. 465, 468-69, 850 P.2d 541 (1993),
holds that the firing of the weapon itself is not sufficient to show intent of great bodily harm.
But Ferreira is distinguishable. There, the defendant fired at least 12 shots into a house during a
drive-by shooting, wounding an occupant. Ferreira, 69 Wn. App. at 467. Division Three of this
court held that there was insufficient evidence to support a finding of intent to inflict great bodily
3
To the extent that Royball argues that this court should rely on his testimony that he merely
wanted to chase Rubon away by firing into the air: this is a credibility determination that we do
not review. Camarillo, 115 Wn.2d at 71. Moreover, we view all the evidence in the light most
favorable to the State. Yishmael, 195 Wn.2d at 177.
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No. 54419-9-II
harm because the State could not show that Ferreira knew that the house was occupied, only that
it was “likely apparent that the house was occupied.” Ferreira, 69 Wn. App. at 469. Here,
Royball knew that Rubon was at the end of the carport at the table with Pointer. Thus Ferreira
does not apply. We hold that there was sufficient evidence for a reasonable jury to find that
Royball had the intent to inflict great bodily harm.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, Royball argues that he received ineffective assistance of counsel during sentencing
because his trial counsel did not argue certain legal authorities in support of an exceptional
downward sentence. We disagree.
A. Legal Principals
A claim of ineffective assistance of counsel presents a mixed question of fact and law
that we review de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To
demonstrate ineffective assistance of counsel, Royball must show that (1) defense counsel’s
performance was deficient, and (2) that the deficient performance resulted in prejudice to the
defendant. State v. Linville, 191 Wn.2d 513, 524, 423 P.3d 842 (2018) (citing Strickland v.
Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984)). We may deem
counsel’s performance deficient if it is not objectively reasonable. State v. Estes, 188 Wn.2d
450, 458, 395 P.3d 1045 (2017). Prejudice is a “‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” State v. Gregory,
192 Wn.2d 1, 22, 427 P.3d 621 (2018) (quoting Strickland, 466 U.S. at 694). The failure to
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No. 54419-9-II
demonstrate either prong ends our enquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d
489 (2018).
B. Statutory Factors
Royball first argues that he received ineffective assistance when his trial counsel failed to
argue for an exceptional downward sentence based on the statutory mitigating factors in RCW
9.94A.535(1). But Royball cannot show that he was prejudiced by his counsel’s inaction.
In State v. Hernandez-Hernandez, 104 Wn. App. 263, 265-66, 15 P.3d 719 (2001), the
defendant argued that he received ineffective assistance when his trial counsel failed to cite to
controlling case law to argue for an exceptional downward sentence. There, defense counsel
asked for a sentence at the low-end of the standard range. Hernandez-Hernandez, 104 Wn. App.
at 266. Division Three of this court held, “Assuming counsel was deficient, Mr. Hernandez–
Hernandez cannot show the requisite prejudice. . . . The court had the discretion to impose an
exceptional sentence downward with or without counsel’s request; it did not. The prejudice, if
any, was slight.” Hernandez-Hernandez, 104 Wn. App. at 266.
Here the situation is much the same. Royball’s counsel requested that the court use its
discretion “to make any reduction in the sentence that the Court finds appropriate.” VRP at 440.
The trial court had discretion to impose an exceptional sentence downward. Moreover, the court
demonstrated that it was aware of the statutory mitigating factors by reading them aloud and
considering them during sentencing. Thus, it is evident from the record on appeal that the trial
court properly used its discretion to impose the standard range sentence, as it had the discretion
to do with or without Royball’s request—or any further argument.
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Royball argues that his counsel was deficient for not citing cases or presenting argument
to the trial court to justify a departure below the standard range. He relies on State v. McGill,
112 Wn. App. 95, 101, 47 P.3d 173 (2002), where Division One of this court held that defense
counsel was ineffective for not making an argument based on case law for an exceptional
downward sentence. McGill, 112 Wn. App at 101. Division One noted, “A trial court cannot
make an informed decision if it does not know the parameters of its decision-making authority.”
McGill, 112 Wn. App. at 102. But that is not the case here.
As explained above, the trial court here knew the parameters of its authority. It recited
the potential mitigating factors from RCW 9.94A.535(1). Accordingly, the trial court was aware
of its authority and properly exercised its discretion. Thus, Royball cannot show prejudice and
his argument fails.
C. Non-Statutory Factors
Next, Royball argues that he received ineffective assistance of counsel when his trial
counsel failed to argue for an exceptional downward sentence based on the non-statutory factor
that Pointer created a love triangle and emotionally manipulated Royball. We disagree.
In determining whether a factor legally supports departure from the standard
sentence range, this Court employs a two-part test: first, a trial court may not base
an exceptional sentence on factors necessarily considered by the Legislature in
establishing the standard sentence range; second, the asserted aggravating or
mitigating factor must be sufficiently substantial and compelling to distinguish the
crime in question from others in the same category.
State v. Ha’mim, 132 Wn.2d 834, 840, 940 P.2d 633 (1997), abrogated on other grounds by
State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015). In State v. Law, our Supreme Court
explained that under the second prong of the Ha’mim test, the mitigating factor “‘must relate to
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No. 54419-9-II
the crime and make it more, or less, egregious’” than crimes in the same statutory category. 154
Wn.2d 85, 98, 110 P.3d 717 (2005) (quoting State v. Fowler, 145 Wn.2d 400, 404, 38 P.3d 335(2002)).
Here, the facts do not support Royball’s theory of emotional manipulation. No evidence
was admitted at trial of such manipulation. Royball denied being jealous of Rubon. He never
testified he had dated Pointer, only that they had kissed. Moreover, even if Royball was
romantically attracted to Pointer, on this record there is nothing that makes Royball’s crime less
egregious than other assaults based on a love triangle. Any argument that Royball’s trial counsel
would have made for a downward adjustment based on emotional manipulation would have
failed under the second prong of the Ha’mim test. Accordingly, Royball cannot show prejudice
because the result of the sentencing proceeding would not have been any different had his trial
counsel raised this argument. Thus, we hold that Royball did not receive ineffective assistance
of counsel.
III. JURY DEMAND AND COMMUNITY SUPERVISION FEES
Royball argues that the trial court erred when it imposed legal financial obligations on
Royball. He argues that because the trial court found him indigent, it was barred by State v.
Ramirez, 191 Wn.2d 732, 739, 746-50, 426 P.3d 714 (2018), from imposing the jury demand fee
and that the trial court should have used its discretion to waive the community supervision fee.
The State concedes that the trial court should not have imposed legal financial
obligations, and we accept the State’s concession.
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We affirm Royball’s convictions and sentence and remand to the trial court to strike the
jury fee and DOC supervision fee.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Veljacic, J.
Price, J.
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