State Of Washington v. Stanley Omar Charleston ( 2020 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 78811-6-I
)
Respondent, ) UNPUBLISHED OPINION
)
v. )
)
STANLEY OMAR CHARLESTON, )
)
Appellant. )
)
ANDRUS, A.C.J. – Stanley Charleston appeals his convictions and sentence
for two counts of second degree assault and one count of unlawful imprisonment
stemming from events that occurred on October 8, 2017, while Charleston was
experiencing a drug-induced psychotic episode. Charleston argues that the trial
court erred when it denied Charleston’s motion to proceed pro se and when it
refused to instruct the jury on voluntary intoxication and the inferior degree offense
of fourth degree assault. He further contends his convictions violate the prohibition
on double jeopardy. In a Statement of Additional Grounds, Charleston also
maintains that the court violated his speedy trial rights.
We conclude the trial court did not err here and affirm Charleston’s
convictions and sentence.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 78811-6-I/2
FACTS
In the early hours of October 8, 2017, Sarah 1 returned to a friend’s first-floor
apartment at Ninth Avenue and Marion Street on First Hill in Seattle. As Sarah
inserted the key into the exterior door lock, a man, later identified as Charleston,
ran at her, grabbed her by her hair, threw her to the ground, and began striking her
repeatedly with an aluminum broom handle. When Charleston screamed at her,
Sarah could not understand anything he said.
Just before the attack, around 2 a.m., James finished a music gig at a
nearby restaurant and walked to his parked car. He saw Charleston chasing a
man down the sidewalk while waving some type of a stick in the air. When James
approached his car, he saw Charleston return, enter an apartment building, and
then attack Sarah. He saw Charleston, who was yelling nonsensically, drag Sarah
outside and beat her with a stick around a dozen times.
James decided to intervene because the conduct was “over the top violent”
and because Charleston was “whaling on this woman.” He first called the police
and then yelled at Charleston to stop. James expected Charleston to flee, but
Charleston surprisingly charged him and hit him in the face with a stick “a couple
times.” James tackled Charleston to the ground, and another man passing by
helped him subdue Charleston until police arrived.
Officer Elliott Averett was the first officer to respond. He saw two men
holding Charleston down and also noticed a pair of scissors and a bent,
lightweight, aluminum broom handle nearby. He kicked the possible weapons
1 To preserve the victims’ privacy, we will refer to them by their first names only. We mean no
disrespect.
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No. 78811-6-I/3
away from everyone’s reach. Officer Averett tried to speak to Charleston, but
Charleston “was pretty incoherent.” Instead of answering the officer’s request for
identification, Charleston said “something about being a light bearer” and “yell[ed]
out Islamic religious references.”
The police initially handcuffed all three men until James explained what had
happened. After determining that Charleston was the likely assailant, the officers
arrested him. Officer Averett testified that because of Charleston’s incoherence
and demeanor, he thought Charleston was mentally ill, high, or both.
Firefighter EMT Carol Wisman evaluated Charleston for injuries while he
sat handcuffed in the back seat of the police vehicle. She too thought Charleston
appeared high. Wisman believed his mental status was altered or he was having
a behavioral or psychiatric episode. Wisman determined Charleston was likely
high because of her experience with “many, many, many” people under the
influence of drugs.
Officer Travis Jordon arrived on the scene and heard Sarah screaming for
help at the doorway of her apartment building. He attended to Sarah while the
other officers interacted with the three men on the street. He saw she was bleeding
from her head. Sarah told Officer Jordon she had been attacked by a stranger
while inserting the key into the deadbolt of the building’s front door. Jordon noticed
the key still inside the deadbolt, bent.
As a result of the attack, Sarah suffered a one-inch laceration to her scalp.
A CAT 2 scan revealed that Sarah also had a hematoma, or a collection of blood
2 Computed tomography. Also known as a CT scan. https://www.mayoclinic.org/tests-
procedures/ct-scan/about/pac-20393675.
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No. 78811-6-I/4
under the scalp. Dr. Hess decided that hematoma treatment would be
unnecessarily invasive and closed the cut to her scalp with two to three staples
that remained in place for two weeks. In addition to these injuries, Sarah had
bruises to the back of her shoulders, her side, and the back of her head where
Charleston had pulled her hair, making it impossible for her to sleep well for three
days.
She also sustained an injury to her right hand. Sarah testified that when
she arrived at the hospital, her hand was so swollen that the doctors could not
perform an X ray and had to cut her rings off her fingers. The doctor who attended
to her in the emergency room, Dr. Jeremy Hess, could not determine if any bones
were broken. As a precaution, Dr. Hess put Sarah’s hand in a splint and
recommended she follow up with her personal physician to rule out any fracture.
Sarah had to keep the splint on her hand for two weeks, making her dependent on
others to assist her to eat, bathe, and dress.
Sarah also testified that she was so afraid during the assault that she lost
control of her bowels and defecated on herself. Dr. Thomas Cherry, Sarah’s
primary care provider, testified that such bowel incontinence is not uncommon
when someone experiences a severe trauma because their entire nervous system
“is just kind of on override.” He opined that her loss of bowel control under such
circumstances is the loss of the function of a bodily organ.
James suffered a golf ball-sized lump on his head, a loose tooth, a cut on
his lip that required stitches, and a fractured ankle. Dr. William Lemley, the
radiologist who reviewed James’s X rays, diagnosed a break in the fibula just
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below the mid-lower leg, extending down to the ankle joint. James used crutches
for two weeks and had his ankle immobilized in a boot for another six weeks.
The State charged Charleston with first degree burglary, assault in the
second degree, and unlawful imprisonment relating to the attack of Sarah and
second degree assault relating to the attack of James. At trial, Sarah and James
testified about the attacks and their resultant injuries. The jury also heard
testimony from law enforcement officers who were present on the scene and from
medical professionals who participated in treating Sarah and James after the
assaults. Charleston testified in his defense, as did forensic psychiatrist Dr. Mark
McClung.
The jury acquitted Charleston of first degree burglary but found him guilty
of second degree assault of James and second degree assault and unlawful
imprisonment of Sarah. In a second phase of the trial, the jury found Charleston
had committed these crimes shortly after being released from incarceration.
The court imposed an exceptional sentence based on the aggravating factor
of “rapid recidivism,” under RCW 9.94A.535(3)(t). The court sentenced Charleston
to a total of 35 months’ confinement: 15 months for the assault of James, 20
months for the assault of Sarah, and 9 months for the unlawful imprisonment of
Sarah. It ordered the two assault counts to run consecutively to one another, with
the unlawful imprisonment count running concurrently with the second assault
count.
Charleston appeals his convictions and sentence. Charleston makes
several arguments on appeal. First, he argues that he was deprived of his
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constitutional right to represent himself. Second, he argues that the trial court
erred in denying his request for a jury instruction on voluntary intoxication and on
the inferior degree offense of fourth degree assault. Third, he argues that his
convictions for assault and unlawful imprisonment of Sarah violate the prohibitions
on double jeopardy. Finally, Charleston submitted a Statement of Additional
Grounds (SAG) in which he argues that his speedy trial rights were violated when
the trial court granted three continuances in May 2018 and failed to commence his
trial until after the speedy trial deadline expired. We address each argument in
turn.
ANALYSIS
1. Charleston’s Self-Representation Request
Charleston first argues the trial court deprived him of his constitutional right
to self-representation. We disagree because the trial court did not abuse its
discretion in concluding Charleston did not make an unequivocal request to
represent himself.
“The United States Supreme Court recognizes a constitutional right of
criminal defendants to waive assistance of counsel and to represent themselves
at trial.” State v. DeWeese, 117 Wash. 2d 369, 375, 816 P.2d 1 (1991). “[A] court
cannot force a defendant to accept counsel if the defendant wants to conduct his
or her own defense, as the Sixth Amendment grants defendants the right to make
a personal defense with or without the assistance of an attorney.” Id.; see also
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
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No. 78811-6-I/7
Because a request to proceed pro se involves the waiver of a constitutional
right, namely the right to counsel, “appellate courts have regularly and properly
reviewed denials of requests for pro se status under an abuse of discretion
standard.” State v. Madsen, 168 Wash. 2d 496, 504, 229 P.3d 714 (2010). “The
grounds that allow a court to deny a defendant the right to self-representation are
limited to a finding that the defendant's request is equivocal, untimely, involuntary,
or made without a general understanding of the consequences.” Id. at 504-05. “A
court may not deny a motion for self-representation based on grounds that self-
representation would be detrimental to the defendant's ability to present his case
or concerns that courtroom proceedings will be less efficient and orderly than if the
defendant were represented by counsel.” Id. at 505. “Similarly, concern regarding
a defendant's competency alone is insufficient; if the court doubts the defendant's
competency, the necessary course is to order a competency review.” Id. An
appellate court “give[s] great deference to the trial court’s discretion because the
trial court is in a favorable position to the appellate courts in evaluating a request
to proceed pro se.” State v. Burns, 193 Wash. 2d 190, 202, 438 P.3d 1183 (2019).
When evaluating a defendant’s request to represent himself, the trial court
must first determine whether the request is unequivocal and timely. Id. at 203.
The trial court must decide whether the request is knowing, voluntary, and
intelligent. Id. “The threshold issues of timeliness and equivocality focus on the
nature of the request itself—if, when, and how the defendant made a request for
self-representation—not on the motivation or purpose behind the request.” State
v. Curry, 191 Wash. 2d 475, 486-87, 423 P.3d 179 (2018). And “[t]he method for
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No. 78811-6-I/8
determining whether a defendant understands the risks of self-representation is a
colloquy on the record. Burns, 193 Wash. 2d at 203.
Charleston was charged with burglary and second degree assault on
October 11, 2017. His trial was initially set for January 17, 2018. The court
continued his trial date on multiple occasions at the request of his defense
attorneys, once after counsel had to withdraw and a new attorney was appointed
to represent him, and several times because defense counsel needed time to
conduct discovery, retain an expert, and have the expert complete his evaluation
of Charleston. Charleston objected to many of these continuances. Only one
continuance was granted at the State’s request to allow it time to interview Dr.
McClung. In many of the hearings, Charleston challenged the court’s computation
of his speedy trial deadline under CrR 3.3.
At a January 26, 2018 hearing, Charleston asked the court to clarify why it
had moved his speedy trial deadline. The court explained to Charleston that each
time the court granted a trial continuance, the rule required it to reset the speedy
trial deadline for 30 days after the new trial date. When the court indicated it
intended to continue trial to February 28, 2018, Charleston told the trial court he
could represent himself. The court calendared his oral motion for the following
Monday, January 29, 2018.
During the January 29 hearing, Charleston moved to have his assigned
counsel withdraw. The trial court asked Charleston if he was seeking a new
attorney, to which Charleston replied that he was “asking [the court] to assert [his]
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No. 78811-6-I/9
rights” to a speedy trial. Charleston complained that his attorney had waived his
right to a speedy trial without consulting him. After this exchange, the court said:
COURT: Sir, do you want a new attorney? Or do you want to be your
own attorney? Or is this morning you just wanted to put on the record
again, your objection to your trial being moved?
...
DEFENDANT: Objection to my trial being moved and ask the court
to consider it. I wanted to, if he's not going to be ready for trial, yeah,
I think I do -- I can proceed to go to trial and would ask for him to be
a standby.
COURT: Okay. So that sounds like you're wanting to be your own
attorney?
DEFENDANT: That's what it sounds, that’s what it is.
COURT: So is that what you’re asking me to do this morning?
DEFENDANT: Yes, I am.
COURT: So one thing you need to know is if I let you –
DEFENDANT: For him as my standby.
COURT: You're not going to have a standby attorney. If you are your
own attorney, you're your own attorney.
Charleston told the court that before he could make an informed decision, he
wanted to calculate the expiration of his speedy trial right and wanted to know if he
could be released from confinement pending trial. The trial court asked Charleston
to consult with his counsel regarding a potential bail review hearing and to re-note
the motion if he decided to pursue self-representation.
Charleston did re-note a motion to proceed pro se and, on January 31,
appeared before a different judge to address that request. Charleston’s attorney
noted on the record that Charleston had completed a pro se packet, and
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Charleston told the court he wanted to represent himself because his first attorney
had not informed him that he had signed a speedy trial waiver and his current
attorney had requested a continuance over his objection. Charleston told the court
he wanted to represent himself so he would not be forced to waive those rights
again.
The trial court began a colloquy on the record regarding his request. It
cautioned Charleston of the difficulties of self-representation and informed him that
he could not have standby counsel if he proceeded pro se. Again, Charleston
claimed his speedy trial rights had been violated and wanted the court to
reconsider this issue, rather than his motion to represent himself. At that point, the
court informed Charleston that it could not entertain a speedy trial motion without
it being properly noted for a hearing and briefed by the parties. It again cautioned
Charleston of the difficulties of self-representation, particularly when raising a
speedy trial argument. Charleston did not acknowledge the trial court’s warnings,
and instead he proceeded again to argue that his speedy trial rights were being
violated. At that point, the trial court denied without prejudice Charleston’s motion
to represent himself, reasoning that Charleston really sought a ruling on a speedy
trial motion, not on a motion for self-representation.
Based on this record, we conclude the trial court did not abuse its discretion
in denying Charleston’s motion for self-representation because his request was
equivocal. The January 29 request was equivocal because Charleston said he
needed to think about going pro se, negating any argument that his request that
day was explicit or clear. And although Charleston noted his motion for a hearing
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No. 78811-6-I/11
on January 31, his argument that day focused solely on his contention that his
speedy trial rights had been violated. Despite the trial court’s repeated attempts
to ask Charleston if he wished to represent himself, Charleston kept repeating that
he wanted to discuss his speedy trial right claim. Moreover, when the court asked,
for a final time, whether Charleston’s intent was to represent himself, he noted that
he wanted to do so if he could have standby counsel. Even when Charleston said
he wanted to represent himself, he always qualified that statement by indicating it
was conditioned on having standby counsel appointed to assist him. The trial court
did not abuse its discretion when it denied Charleston’s motion to represent
himself.
2. Voluntary Intoxication Instruction
Charleston next asserts the trial court erred when it refused his request for
an instruction on voluntary intoxication. Charleston argues the jury should have
been permitted to consider whether Charleston’s drug intoxication impacted his
ability to form the requisite intent to commit any of the charged crimes. But the
evidence does not support this argument. Dr. McClung, a forensic psychiatrist,
opined that Charleston had the capacity to form the intent to commit his crimes,
and Charleston himself admitted he acted intentionally to protect himself from
harm. We thus conclude the trial court did not abuse its discretion when it refused
to instruct the jury on voluntary intoxication.
This court reviews the adequacy of jury instructions based on an error of
law de novo. State v. Clausing, 147 Wash. 2d 620, 626–27, 56 P.3d 550 (2002). But
when the trial court refuses to give an instruction based on the facts of the case,
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No. 78811-6-I/12
this court reviews a trial court's refusal to give a requested jury instruction for abuse
of discretion. State v. Henderson, 180 Wash. App. 138, 144, 321 P.3d 298 (2014);
State v. Hunter, 152 Wash. App. 30, 43, 216 P.3d 421 (2009); State v. Hernandez,
99 Wash. App. 312, 318, 997 P.2d 923 (1999). A trial court abuses its discretion
when its decision is manifestly unreasonable or based upon untenable grounds or
untenable reasons. State v. Neal, 144 Wash. 2d 600, 609, 30 P.3d 1255 (2001). A
trial court's decision is based on untenable grounds or untenable reasons if it is
based on an incorrect legal standard. State v. Dye, 178 Wash. 2d 541, 548, 309 P.3d
1192 (2013).
The State argues Charleston waived this issue by failing to advocate for the
voluntary intoxication instruction below. We disagree. During pretrial motions, the
State moved to exclude the testimony of defense forensic psychiatric expert, Dr.
McClung, as to the defenses of diminished capacity and voluntary intoxication.
The State argued that Dr. McClung had opined, in his report, that Charleston’s
drug use and psychiatric condition had not impacted Charleston’s ability to form
the intent to commit the crimes. The court granted the State’s motion to exclude
Dr. McClung’s testimony as to diminished capacity and voluntary intoxication
because Dr. McClung’s report and deposition both stated that he did not believe
Charleston’s symptoms at the time rendered him unable to form intent at the time
of the crime.
At trial, Charleston testified that on October 7, 2017, after ingesting drugs,
he began to experience auditory and visual hallucinations. During the early
morning hours of October 8, the morning of his arrest, he had visions of what he
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called “duplicates” or “opposites” of people he knew. 3 Charleston heard gunshots
and the voice of his girlfriend, Monica, screaming. He said he became scared for
his life. The voice in his head told him the shooter was “Zebra,” a man he knew
from the Jungle, a homeless encampment in Seattle. Charleston had never
experienced a similar episode when sober.
Charleston testified that he then started seeing Zebra “opposites” from
whom he believed he needed protection. Prompted by the earlier gunshot sounds
and Zebra’s voice in his head, Charleston grabbed an aluminum broom handle
and chased a man he believed to be Zebra. While chasing Zebra, Charleston
noticed a stranger, later identified as James, whom he described as “ducking
behind a car” and thought James was preparing to shoot him. Charleston ran the
opposite direction, and encountered Sarah, whom he believed to be another
“opposite” of Zebra.
Charleston admitted he grabbed Sarah, threw her down, and struck her with
the broom handle. He also admitted “[i]t wasn’t an accident. I intended to protect
myself,” because he thought she was Zebra. Charleston stated he used enough
force to make sure Zebra “didn’t hurt” him. Charleston also testified that he struck
James in the face with the same broom handle more than once and that he meant
to hit him.
Dr. McClung, who evaluated Charleston on March 16, 2018, and on April 6,
2018, testified that on October 8, Charleston was suffering from a substance-
3Charleston referred to these doubles as “doppelgangers,” which are “a ghostly double of a live
person that haunts [someone] through life and is usually visible only to himself.” W EBSTER’S THIRD
NEW INT’L DICTIONARY 674 (2002).
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No. 78811-6-I/14
induced psychotic disorder. In Dr. McClung’s opinion, Charleston was also
intoxicated on methamphetamine at the time of the crime. Dr. McClung believed
Charleston’s psychosis caused his delusions and hallucinations that led to his
paranoia and altered his sense of danger. But Dr. McClung testified, as he had
done in his report and deposition, that Charleston’s symptoms did not render him
unable to form the intent to commit his crimes.
At the conclusion of trial, Charleston offered a voluntary intoxication
instruction in his proposed instructions packet. During the instruction conference,
the following exchange occurred:
COUNSEL: And just so that we can truncate things, I want to note I
included the voluntary intoxication and diminished capacity
instructions. I understand the court’s previously ruled on these
issues, and the testimony wasn't allowed on those issues. I have
included them in my packet only to preserve the issue for appeal that
they are proposing those. I don't -- I'm not asking for the court to
revisit the argument at this point.
THE COURT: Okay. Good. Because I was not going to let you have
it anyway.
COUNSEL: I understand. I just didn't want to waste the court's time.
The court indicated it refused to give these instructions, stating “the court has
previously ruled those [defenses] were not available to Mr. Charleston, and so I
will not be providing those instructions.”
We conclude Charleston preserved this issue for appeal by offering
evidence of Charleston’s voluntary intoxication at trial and by offering a voluntary
intoxication instruction at the conclusion of trial. The court clearly ruled, in denying
the proposed instruction, that Charleston could not argue he lacked the capacity
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No. 78811-6-I/15
to form the intent to commit any of the charged crimes. We thus reject the State’s
contention that Charleston did not preserve this instructional issue for appeal.
But we also conclude the trial court did not abuse its discretion in denying
the requested voluntary intoxication instruction. “RCW 9A.16.090 states that
voluntary intoxication does not make an act ‘less criminal’, while on the other hand
the statute states that intoxication ‘may be taken into consideration’ by the jury in
determining whether the defendant acted with the requisite mental state.” State v.
Coates, 107 Wash. 2d 882, 889, 735 P.2d 64 (1987) (quoting RCW 9A.16.090). A
defendant is only entitled to a voluntary intoxication instruction when (1) the crime
charged has as an element a particular mental state, (2) there is substantial
evidence the defendant was drinking and/or using drugs, and (3) the defendant
presents evidence that the alcohol or drugs affected his or her ability to acquire the
required mental state. State v. Gallegos, 65 Wash. App. 230, 238, 828 P.2d 37
(1992); State v. Webb, 162 Wash. App. 195, 209, 252 P.3d 424 (2011) (applied test
to drug intoxication). “When determining if the evidence at trial was sufficient to
support the giving of an instruction, the appellate court is to view the supporting
evidence in the light most favorable to the party that requested the instruction.”
State v. Fernandez-Medina, 141 Wash. 2d 448, 455-56, 6 P.3d 1150 (2000).
The first part of the test is met. Charleston’s crimes each had as an element
a particular mental state. To convict Charleston of assault in the second degree,
the State had to prove Charleston “intentionally assaulted” his victims and
“recklessly inflicted substantial bodily harm.” To act with intent or intentionally
means to act with “the objective or purpose to accomplish a result that constitutes
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No. 78811-6-I/16
a crime.” RCW 9A.08.010(1)(a). A person is reckless when “he or she knows of
and disregards a substantial risk that a wrongful act may occur and disregards a
substantial risk that a wrongful act may occur and this disregard is a gross
deviation from conduct that a reasonable person would exercise in the same
situation.”
To convict Charleston of unlawful imprisonment, the State had to prove
Charleston had “knowledge” that he restrained Sarah in a manner that
substantially interfered with her liberty, either without her consent or by physical
force, and the restraint was without legal authority. A person knows or acts
knowingly or with knowledge with respect to a fact, circumstance, or result when
he is aware of that fact, circumstance, or result. RCW 9A.08.010(b).
Voluntary intoxication can negate the mental state of intent. See State v.
Brooks, 97 Wash. 2d 873, 651 P.2d 217 (1982) (defendant charged with first degree
murder entitled to instruction upon showing intoxication affected either
premeditation or intent). And although voluntary intoxication is usually associated
with intent crimes, the defense is also appropriate when the defendant is charged
with a crime for which a lesser mental state is required. See State v. Lottie, 31
Wash. App. 651, 653, 644 P.2d 707 (1982) (holding that voluntary intoxication can
negate the mental state of knowledge). Here, if there was sufficient evidence to
establish that Charleston’s voluntary intoxication with drugs impaired his ability to
form intent or to act knowingly, and thus recklessly, then this instruction would have
been appropriate.
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No. 78811-6-I/17
The second part of the test is also met. Charleston presented evidence that
he consumed drugs and possibly alcohol on October 7, some hours before the
assaults at 2 a.m. on the morning of October 8. Charleston testified that he had
smoked marijuana, used methamphetamine, and drank alcohol during the week
preceding the assaults. Dr. McClung testified that Charleston admitted to him that
he had resumed drug use, including methamphetamine, after being released from
jail a week before the incident.
But even if Charleston presented sufficient evidence that he was intoxicated
at the time he assaulted Sarah and James, the evidence, when taken in the light
most favorable to Charleston, is insufficient to meet the third element of the test.
Charleston had to present evidence that his drug use affected his ability to acquire
the required mental state. The evidence must “reasonably and logically connect
the defendant’s intoxication with the asserted inability to form the required level of
culpability to commit the crime charged.” Webb, 162 Wash. App. at 210, quoting
State v. Gabryschak, 83 Wash. App. 249, 252-53, 921 P.2d 549 (1996). The
evidence here failed to make this necessary connection.
Charleston’s main defense at trial was that he acted intentionally, in self-
defense, because he believed he was in danger of imminent harm. Charleston
testified that he believed Sarah was Zebra, whom he believed posed a danger to
him. Charleston admitted he grabbed a broom with the intent to protect himself.
He further admitted that in order to protect himself, he had to swing the broom to
“make sure that Zebra didn’t hurt me.” Charleston later admitted, during cross-
examination, that he grabbed a broom, threw Sarah to the ground, and hit her with
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it with the intent to “disable” her. He admitted his actions were not accidental, and
he intended to hit the person he believed to be Zebra. This evidence may establish
that Charleston’s drug use may have led him to mistake Sarah for someone else,
but it did not prevent him from forming the intent to grab her, throw her to the
ground and strike her with the broom handle.
Similarly, Charleston testified that when he heard James’s voice, he thought
James was going to hurt him. So he hit James with the stick to protect himself and
testified that he meant to do so. Again, Charleston’s drug use may have led him
to believe erroneously that James posed a threat to him, but the drug use did not
impair his ability to form the intent to assault James.
Finally, Dr. McClung testified that Charleston had the capacity to form the
intent to commit these assaults. Dr. McClung testified that he reached this
conclusion because Charleston described to him his “conscious reasons” for
committing the assaults.
We thus conclude there was insufficient evidence to conclude that
Charleston’s intoxication affected his ability to acquire the required mental state to
commit assault and unlawful imprisonment. The trial court did not abuse its
discretion in denying Charleston’s request for this instruction.
3. Fourth Degree Assault Instruction
Charleston argues on appeal that he was entitled to an instruction on fourth
degree assault because the jury could have concluded the assaults on Sarah and
James did not cause “substantial bodily harm,” and did not constitute second
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No. 78811-6-I/19
degree assault. We conclude the trial court did not abuse its discretion in denying
Charleston’s proposed inferior degree instruction under the facts of this case.
Under RCW 10.61.003, a defendant can be found guilty of a crime that is
an inferior degree of the crime charged. Fernandez-Medina, 141 Wash. 2d at 453.
An instruction on an inferior degree offense is proper when:
(1) the statutes for both the charged offense and the proposed
inferior degree offense “proscribe but one offense”; (2) the
information charges an offense that is divided into degrees, and the
proposed offense is an inferior degree of the charged offense; and
(3) there is evidence that the defendant committed only the inferior
offense.
State v. Peterson, 133 Wash. 2d 885, 891, 948 P.2d 381 (1997).
Because the parties only disagree as to whether the evidence at trial was
sufficient to show Charleston “committed only the inferior offense,” the resolution
of this issue requires analysis of only that third requirement, known as “the factual
component.” Fernandez-Medina, 141 Wash. 2d at 454-55. When only the factual
component is at issue, we review the refusal to instruct the jury on the inferior
degree offense of fourth degree assault for an abuse of discretion. State v.
LaPlant, 157 Wash. App. 685, 687, 239 P.3d 366 (2010).
“[A] requested jury instruction on a lesser included or inferior degree offense
should be administered ‘if the evidence would permit a jury to rationally find a
defendant guilty of the lesser offense and acquit him of the greater.’” Fernandez-
Medina, 141 Wash. 2d at 456 (quoting State v. Warden, 133 Wash. 2d 559, 563, 947
P.2d 708 (1997)). “[T]he evidence must affirmatively establish the defendant's
theory of the case—it is not enough that the jury might disbelieve the evidence
pointing to guilt.” Id.
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RCW 9A.36.021(1)(a) states: “A person is guilty of assault in the second
degree if he or she, under circumstances not amounting to assault in the first
degree: (a) Intentionally assaults another and thereby recklessly inflicts substantial
bodily harm.” RCW 9A.36.041(1) states: “A person is guilty of assault in the fourth
degree if, under circumstances not amounting to assault in the first, second, or
third degree, or custodial assault, he or she assaults another.”
Charleston requested an instruction on fourth degree assault at the
conclusion of trial. The trial court initially granted Charleston’s request, but it later
changed its ruling:
. . . I think in looking at the evidence that is before the court, I cannot
find that the evidence raises an inference that only assault 4 was
committed. Yes, the jury may not believe that there was substantial
injury, bodily injury as defined, but the jury may also believe that
there was substantial bodily injury as defined. And because the
evidence does not exclude that as a possibility, it is the court's
opinion that the law states that it is factually not permissible to
instruct to provide the lesser instruction on assault 4.”
It concluded the evidence did not establish that Charleston committed only the
inferior offense of fourth degree assault.
The State alleged Charleston committed second degree assault by
intentionally assaulting Sarah and James and recklessly inflicting substantial
bodily harm under RCW 9A.36.021(1)(a). Charleston contends on appeal that the
jury could have reasonably concluded that Sarah’s injuries did not meet the legal
threshold of “substantial bodily harm,” that Charleston did not cause James’s ankle
fracture, or that Charleston did not act recklessly when he attacked either victim.
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No. 78811-6-I/21
(a) Substantial Bodily Harm
Charleston does not argue that the State presented insufficient evidence to
prove assault in the second degree as to Sarah. Instead, he maintains that the
jury could have found that her injuries did not meet the legal threshold of
“substantial bodily harm” because she suffered no broken bones or internal injuries
and the scalp laceration and hand injury caused only temporary discomfort.
“Substantial bodily harm” is defined as “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).
The State contended below that the extensive bruising Sarah experienced
and the scar resulting from the staples used to close her scalp laceration
constituted “temporary but substantial disfigurement.” It further argued Sarah’s
loss of bowel control during the assault was the temporary but substantial loss of
the function of her nervous system. And it maintained her wrist injury, requiring
complete immobility for two weeks, and limited use for weeks thereafter, was a
temporary, but substantial impairment of a function of a body part.
Charleston argues that even if the jury believed the State’s evidence
regarding the extent of Sarah’s injuries, it could have found they were not
“substantial.” He points, as support for this argument, to the jury’s question during
deliberations: “With regard to Instruction 19 is there a legal definition of
“substantial” as used in “substantial disfigurement” and “substantial loss or
impairment,” or is this a matter for the jury to decide?”
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No. 78811-6-I/22
But the statute defining fourth degree assault specifically requires that the
evidence not rise to the level of first, second, or third degree or custodial assault.
RCW 9A.36.041. In State v. Stationak, 73 Wash. 2d 647, 649-50, 440 P.2d 457
(1968), our Supreme Court considered whether the defendant, charged with
assault in the first degree, was entitled to an instruction of third degree assault
based on inconsistent testimony as to whether the defendant knew the gun he
used was loaded. The court acknowledged there was evidence to justify an
instruction for first or second degree assault, but third degree assault is defined as
one “not amounting to assault in either the first or second degree.” Id. at 649. It
held that “if the facts of the case are such that defendant could have been found
guilty of either first or second degree assault, then he could not have been found
guilty of third degree assault.” Id. at 649-50. The court concluded that under the
evidence presented in that case, “the defendant was guilty of first or second degree
assault or of none at all,” making the proposed instruction on third degree assault
properly refused. Id. at 650.
Similarly, here, the evidence was sufficient to support the jury’s second
degree assault conviction. In State v. McKague, 172 Wash. 2d 802, 806, 262 P.3d
1225 (2011), our Supreme Court held that the term “substantial,” as used in RCW
9A.36.021(1)(a), “signifies a degree of harm that is considerable.” The court
concluded that evidence that a defendant punched his victim in the head several
times and pushed him to the ground, causing facial bruising and swelling and
lacerations to his face, head, and arm was sufficient to allow the jury to find that
the injuries constituted substantial but temporary disfigurement. Id. at 806.
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No. 78811-6-I/23
Sarah’s injuries were no less severe than those described in McKague. And
there was no factual dispute that Sarah was injured or that Charleston caused
them. Because the evidence was sufficient to establish second degree assault
and Charleston presented no affirmative evidence that he did not cause Sarah’s
injuries during the assault, he was either guilty of assault in the second degree or
not guilty at all. The trial court did not abuse its discretion in rejecting the proposed
fourth degree assault instruction as to Sarah.
(b) Causation as to James’s Ankle Fracture
Charleston argues that, as to James, a reasonable jury could have found
that Charleston did not cause James’s ankle fracture and this injury occurred only
after James tackled Charleston and a passerby helped James restrain Charleston.
He also contends the jury could have concluded that James’s remaining injuries—
the broken tooth, the knot on his head, and his facial lacerations—did not constitute
a “substantial disfigurement.”
But Charleston did not make any such argument at trial. In fact, in closing,
Charleston’s counsel conceded the State had established substantial bodily injury:
“I am not going to stand here and tell you that [James’s fracture is] not substantial
bodily injury.” Instead, he argued the jury should conclude Charleston reasonably
believed he was acting in self-defense.
And even if Charleston had argued that he did not cause the ankle fracture,
Charleston appears to concede that James’s remaining facial injuries met the legal
definition of substantial bodily harm. Given that there was sufficient evidence to
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No. 78811-6-I/24
convict Charleston of assault in the second degree, the court did not abuse its
discretion in rejecting a fourth degree assault instruction was James.
(c) Recklessness
Finally, Charleston argues the jury could have found he did not act
recklessly, relying on this court’s recent decision in State v. Melland, 9 Wash. App.
2d 786, 452 P.3d 562 (2019). But the facts of this case are distinguishable from
Melland. In that case, Melland was convicted of assault in the second degree
based on medical providers’ testimony that Melland’s girlfriend told them he
grabbed a cell phone from her with such force that it broke her finger. Id. at 800.
Neither Melland nor his girlfriend testified at trial so there was no evidence as to
how Melland had actually broken the finger. Id. at 796. Although the State claimed
he twisted her hand as he removed the phone from her hand, this court noted that
there was no evidence to this effect at trial. Id. at 804. This court reversed
Melland’s conviction, concluding that there was insufficient evidence Melland had
acted recklessly in inflicting the injuries. Id. at 805.
In this case, unlike in Melland, we have testimony from both Sarah and
James, as well as testimony from Charleston himself. Both Sarah and James
testified Charleston struck them in the face and head with an aluminum broomstick.
Charleston testified he intended to “disable” Sarah and to prevent James from
attacking him. And Charleston is not challenging the sufficiency of evidence of
recklessness here.
Based on the evidence at trial, this case is more analogous to State v.
R.H.S., 94 Wash. App. 844, 847, 974 P.2d 1253 (1999), in which a juvenile defendant
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No. 78811-6-I/25
challenged the sufficiency of evidence that he acted recklessly when he punched
another juvenile in the face. This court rejected this argument, holding that “any
reasonable person knows that punching someone in the face could result in a
broken jaw, nose or teeth, each of which would constitute substantial bodily harm.”
Id. at 847.
In this case, Charleston testified he intended to strike both Sarah and James
with the broom handle. As in R.H.S., any reasonable person would know that
striking a person in the face with a metal object could result in lacerations, broken
bones, or broken teeth, all of which would meet the definition of substantial bodily
harm. And under Stationak, 73 Wash. 2d at 650, because the evidence was sufficient
to establish second degree assault and Charleston presented no affirmative
evidence that he did not intend to strike Sarah or James on the head or in the face
during the assault, he was either guilty of assault in the second degree or not guilty
at all. The trial court did not abuse its discretion when it denied Charleston’s
request for an instruction on fourth degree assault.
4. Double Jeopardy
Charleston next contends his convictions for unlawful imprisonment and
second degree assault of Sara related to the same conduct, violate double
jeopardy, and should merge. He asks this court to vacate his unlawful
imprisonment conviction. We decline to do so.
This court reviews double jeopardy claims de novo. State v. Villanueva-
Gonzalez, 180 Wash. 2d 975, 979-80, 329 P.3d 78 (2014). Double jeopardy prevents
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No. 78811-6-I/26
a person from “be[ing] twice put in jeopardy for the same offense.” WASH. CONST.
art. I, § 9.
Our Supreme Court has established a three-part test to determine whether
a defendant’s convictions violate the prohibition on double jeopardy. State v.
Freeman, 153 Wash. 2d 765, 771-72, 108 P.3d 753 (2005); State v. Calle, 125 Wash. 2d
769, 776, 888 P.2d 155 (1995). First, we look to the statutes to determine whether
they expressly authorize cumulative punishment for crimes committed during the
course of one crime. Freeman, 153 Wash. 2d at 771. If the statutes expressly state
that an offense shall be punished separately from a related crime, such as the
burglary statute, RCW 9A.52.050 does, then the legislative intent is clear and the
inquiry ends. Id. But, if the legislature is not clear, the court should apply the
“same evidence test,” which Washington courts adopted from Blockburger v.
United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932): 4
In order to be the “same offense” for purposes of double jeopardy the
offenses must be the same in law and in fact. If there is an element
in each offense which is not included in the other, and proof of one
offense would not necessarily also prove the other, the offenses are
not constitutionally the same and the double jeopardy clause does
not prevent convictions for both offenses.
State v. Vladovic, 99 Wash. 2d 413, 423, 662 P.2d 853 (1983).
Finally, the merger doctrine aids in determining legislative intent, even when
the crimes have different elements. “Under the merger doctrine, when the degree
of one offense is raised by conduct separately criminalized by the legislature, we
4 In Blockburger, the Supreme Court said: “The applicable rule is that, where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision requires proof of
a fact which the other does not.” 284 U.S. at 304.
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No. 78811-6-I/27
presume the legislature intended to punish both offenses through a greater
sentence for the greater crime.” Freeman, 153 Wash. 2d at 772-73. The Freeman
court also noted that even if the convictions appear to be for the same crime, the
offenses may be separate when they result in separate injury. Id. at 779; see also
State v. Frohs, 83 Wash. App. 803, 815-16, 924 P.2d 384 (1996) (“The exception [to
merger] is that if the offenses committed in a particular case have independent
purposes or effects, they may be punished separately even where the applicable
statute (e.g., first degree kidnapping) requires proof of another felony (e.g.,
robbery) to elevate the crime to first degree kidnapping.”).
First, the statutes at issue here do not expressly authorize cumulative
punishment for crimes committed during the course of one crime. RCW
9A.36.021(1)(a) states: “(1) A person is guilty of assault in the second degree if he
or she, under circumstances not amounting to assault in the first degree: (a)
Intentionally assaults another and thereby recklessly inflicts substantial bodily
harm.” And RCW 9A.40.040 states: “(1) A person is guilty of unlawful
imprisonment if he or she knowingly restrains another person.” Neither statute
explicitly authorizes separate punishments for separate offenses. See Frohs, 83
Wash. App. at 812-13 (the unlawful imprisonment and fourth degree assault statutes
do not expressly authorize cumulative punishment for acts committed in
commission of either crime). Because the statutes do not authorize separate
punishments, we must move on to the next prong of the test.
Second, the two crimes are not identical in both law and fact. Under the
same evidence test, if each offense as charged includes elements not included in
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No. 78811-6-I/28
the other, the offenses are different and multiple convictions may stand. Calle,
125 Wash. 2d at 777. To convict Charleston of second degree assault, the State had
to prove:
(1) That on or about October 8, 2017, the defendant intentionally
assaulted Sarah [];
(2) That the defendant thereby recklessly inflicted substantial bodily
harm on Sarah []; and
(3) That this act occurred in the State of Washington.
To convict Charleston of unlawful imprisonment, the State had to prove:
(1) That on or about October 8, 2017, the defendant restrained the
movements of Sarah [] in a manner that substantially interfered with
her liberty;
(2) That such restraint was
(a) without [Sarah’s] consent, or
(b) accomplished by physical force or intimidation;
(3) That such restraint was without legal authority;
(4) That, with regard to elements (1), (2), and (3), the defendant
acted knowingly; and
(5) That any of these acts occurred in the State of Washington.
A conviction for second degree assault required the jury to find Charleston
recklessly inflicted substantial bodily harm, while a conviction for unlawful
imprisonment does not require such a finding. And to prove unlawful
imprisonment, the State had to establish a restraint, an element not necessary for
assault. As this court said in Frohs, “because proof of an assault is not necessary
to prove unlawful imprisonment, and because the elements of the two crimes are
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No. 78811-6-I/29
different, the ‘same evidence’ test is satisfied.” 83 Wash. App. at 814. Here, the two
crimes are not the same in law or fact. The same evidence test is thus satisfied.
Finally, we conclude the two convictions do not merge. The merger
doctrine, a rule of statutory construction, applies where the Legislature has clearly
indicated that to prove a particular degree of a crime, such as second degree
assault, the State must prove not only that a defendant committed that crime, but
also committed an act defined as a crime elsewhere in the criminal statutes.
Freeman, 153 Wash. 2d at 777-78. Here, a conviction for second degree assault was
not predicated on a conviction for unlawful imprisonment, or any other crime. The
unlawful imprisonment charge was not used to elevate the degree of the assault
charge. Unlawful restraint is not a crime separated into degrees depending on
whether the restraint is accomplished by actual force or mere intimidation. Frohs,
83 Wash. App. at 815.
Because the State did not use the unlawful imprisonment of Sarah to
elevate the assault from fourth or third degree assault to second degree assault,
these crimes did not merge.
Charleston also argues the assault and unlawful imprisonment convictions
were based on the same conduct and have no independent “purpose and effect.”
This reference is to an established exception to the merger doctrine, which states
that if offenses committed in a particular case “have independent purposes or
effects,” they may be punished separately even if the applicable statute requires
proof of another felony to elevate the crime. Frohs, 83 Wash. App. at 815-16. But
the fact that a defendant used force, even the same physical force, to accomplish
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No. 78811-6-I/30
both the unlawful restraint and the assault does not mean the merger doctrine
applies and courts are not precluded from imposing separate penalties for each
conviction. Id. at 816. The legislature has instead required courts to deal with the
issue of multiple convictions arising out of the same criminal act to be treated as
one crime in determining a defendant’s offender score. Id.
The State conceded here that the unlawful imprisonment constituted the
same criminal conduct as the assault for purposes of computing Charleston’s
offender score. Charleston agreed. As a result, the trial court ordered that
Charleston serve concurrent sentences for the assault and the unlawful
imprisonment of Sarah. Charleston is not serving any additional prison time as a
result of his conviction for these two separate crimes. We thus reject Charleston’s
argument that the “purpose and effect” exception to the merger doctrine applies to
his case.
We conclude Charleston’s convictions for unlawful imprisonment and
second degree assault do not violate the prohibition on double jeopardy.
5. Statement of Additional Grounds for Review
Charleston filed a Statement of Additional Grounds pursuant to RAP 10.10,
in which he argues that three continuances in May 2018 violated his constitutional
right to a speedy trial. He also contends the speedy trial period had expired by the
time his trial commenced. He maintains that while the trial court began pretrial
motions on the date his speedy trial period expired, it did not commence his trial
on that date. We reject these arguments.
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No. 78811-6-I/31
First, the record before this court shows that on March 9, 2018, the trial
court found good cause to grant the defense a continuance to give Dr. McClung
time to evaluate Charleston, which extended the speedy trial expiration date to
May 9, 2018. On April 27, 2018, the trial court granted the State’s motion for a trial
continuance based on the defense expert’s unavailability to be interviewed by the
State. The court again found good cause for this continuance. This continuance
extended Charleston’s speedy trial expiration date to June 14, 2018.
The record lacks any additional continuance orders, but when the parties
appeared for trial on June 14, Charleston contended the time to trial had expired.
The State, however, informed the trial court that the criminal presiding judge had
entered an order of continuance in May 2018 because the prosecutor was in
another trial, at which time the court had reset Charleston’s speedy trial expiration
date to July 12, 2018. The parties located a copy of that order and presented it to
the trial court. The trial court overruled Charleston’s objection to commencing his
trial, finding the order entered on June 13, 2018, reset his speedy trial expiration
date to July 12, 2018.
This record is insufficient for this court to conclude that the orders entered
in May 2018 violated Charleston’s speedy trial rights. Without copies of these
orders in the record, we cannot evaluate the basis for any of the continuances
granted before the June 13, 2018 order. Thus, we cannot determine that any of
the continuances entered between the April 27, 2018 order and the June 13, 2018
order were unjustified.
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No. 78811-6-I/32
On this record, Charleston’s speedy trial expiration date was July 12, 2018.
Under CrR 3.3, a trial commences when the court calls the case for trial and hears
preliminary motions. State v. Carson, 128 Wash. 2d 805, 820, 912 P.2d 1016 (1996).
Disposition of preliminary motions is “a customary and practical phase of a trial.”
Id. Here, the trial court found that it had commenced Charleston’s trial on June 14,
2018, by beginning hearings on preliminary motions in limine. Indeed, that same
day, the court granted the State’s motion to amend the information to add charges,
and conducted a CrR 3.5 evidentiary hearing. The trial court correctly concluded
it had commenced trial prior to the expiration of Charleston’s speedy trial period
under CrR 3.3.
We thus reject Charleston’s argument in his Statement of Additional
Grounds.
Affirmed.
WE CONCUR:
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