State v. Kelly

1

STATE OF WASHINGTON, Respondent, v. JOHN PATRICK KELLY, Appellant.

No. 86169-7-I

Court of Appeals of Washington, Division 1

May 13, 2024

UNPUBLISHED OPINION

FELDMAN, J.

We are asked in this appeal to decide (among other issues) whether the common law doctrine of transferred intent applies in cases, like this one, where the defendant is charged with second degree assault. John Patrick Kelly pointed a loaded handgun at Alexander and Jessica Cope and their three children and yelled “Call 911 or I'll shoot you” as they walked past his residence. Although Kelly told police after the incident that he saw only Mr. Cope and not Ms. Cope when he yelled “I'll shoot you,” he was convicted and sentenced for second degree assault against Ms. Cope in addition to second degree assault against Mr. Cope and the lesser included offense of unlawful display of a weapon against the eldest Cope child. The trial court sentenced Kelly within the standard range on each count and imposed two 36-month firearm enhancements to run consecutively for a total sentence of 7 years of confinement. On appeal, Kelly argues (a) in the absence of transferred intent, which he claims is inapplicable here, there is insufficient evidence to sustain the conviction on second degree assault against Ms. Cope, (b) his convictions also should be reversed because of prosecutorial misconduct, and (c) the trial court erred in running the firearm enhancements consecutively. We affirm.

I

Alexander Cope, Jessica Cope, and their three minor children were walking through their neighborhood when they heard a banging sound from a nearby house. Mr. and Ms. Cope looked toward the house and saw Kelly leaning out of a second-story story window waving a silver object. Kelly yelled at the Copes "Does this look like a fake to you?" Mr. Cope realized the object in Kelly's hand was a handgun and replied, "What are you talking about?" Kelly then pointed the handgun at the Cope family and said, "Call 911. Somebody is out to get me. Call 911 or I'll shoot you." At this point, Ms. Cope also realized the object was a handgun. Mr. and Ms. Cope were standing one to two feet away from each other when Kelly pointed the gun at them. Recognizing Kelly's statements as a threat and fearing that Kelly would shoot them and their children, Mr. and Ms Cope quickly walked their children around the corner out of Kelly's view and reported the incident to law enforcement.

When police arrived at Kelly's residence, Kelly initially refused to engage with them because he believed they were not real law enforcement officers. When Kelly eventually talked to the officers, he said a man named Nick had been trying to kill him as part of a conspiracy. Over the previous two days Kelly had called 911 several times to report his concerns to law enforcement, but Kelly believed that Nick had rerouted these phone calls to fake law enforcement officers. Kelly had also spray painted "Call 911" on his window. When police asked him if he had interacted with anyone outside of his residence, Kelly said he tried to wave down a man walking by his house to call 911 but became upset when the man refused. Kelly denied pointing a firearm at the man or seeing a family walking with him. Officers believed Kelly's paranoid and erratic behavior was caused by his admitted methamphetamine use over the past several days. Upon searching the upstairs bedroom, officers discovered a loaded silver semi-automatic handgun with a round in the chamber and the safety off.

The State initially charged Kelly with five counts of first degree assault, but it reduced the charges before trial to second degree assault, each with an individual firearm enhancement. After the State rested at trial, the court dismissed two of the assault charges relating to the youngest Cope children for insufficient evidence because "they were too young to know what was happening." The jury convicted Kelly on the remaining charges of (1) second degree assault against Mr. Cope, (2) second degree assault against Ms. Cope, and (3) the lesser included offense of unlawful display of a weapon against the eldest Cope child. The jury also found by special verdict that Kelly was armed with a firearm during the commission of the crimes. The trial court sentenced Kelly to 12 months of confinement on the underlying charges and imposed two 36-month firearm enhancements to run consecutively for a total sentence of 7 years of confinement. Kelly appeals.

II

A. Sufficiency of the evidence

Kelly asserts that the State "presented insufficient evidence to sustain a conviction" of second degree assault against Ms. Cope. We disagree.

Kelly's argument is premised on the trial court's to-convict instruction, which he correctly argues is controlling under the law of the case doctrine. While the law of the case doctrine "means different things in different circumstances," here it is used to refer "to the principle that jury instructions that are not objected to are treated as the properly applicable law for purposes of appeal." State v. Johnson, 188 Wn.2d 742, 755, 399 P.3d 507 (2017) (quoting Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005)). "In criminal cases, the State assumes the burden of proving otherwise unnecessary elements of the offense when such added elements are included without objection in the 'to convict' instruction." Id. at 756 (citing State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998)). This legal principal is the central thrust of Kelly's argument.

The to-convict instruction at issue here (instruction 14) states:

To convict the defendant of the crime of assault in the second degree, as charged in count two, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about 20th day of May, 2020, the defendant assaulted Jessica Cope with a deadly weapon; and

(2) That this act occurred in the State of Washington.

If you find from the evidence that each of these elements have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any of these elements, then it will be your duty to return a verdict of not guilty.

Thus, to convict Kelly of second degree assault against Ms. Cope, the State was required to prove beyond a reasonable doubt that (1) Kelly "assaulted Jessica Cope," (2) he used a "deadly weapon," and (3) this act occurred in Washington.

When analyzing whether evidence is sufficient to uphold a jury's verdict, this court applies a deferential standard of review. In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011). "Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." State v. Andy, 182 Wn.2d 294, 303, 340 P.3d 840 (2014) (quoting State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004)). Additionally, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." Johnson, 188 Wn.2d at 762 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We also defer to the jury on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.

Here, sufficient evidence shows that Kelly used a deadly weapon and that the assault took place in Washington. As noted previously, the evidence shows that Kelly pointed a loaded handgun at Mr. and Ms. Cope and their children and yelled "Call 911 or I'll shoot you" as they walked past his residence. Kelly does not contest, nor could he, that a loaded handgun is a deadly weapon. See instruction 10 ("A firearm, whether loaded or unloaded, is a deadly weapon."). The evidence also shows that the assault occurred in University Place, which is located in Washington. Thus, the first two elements of second degree assault against Ms. Cope are supported by sufficient evidence.

Sufficient evidence also supports the remaining element, which is that Kelly "assaulted Jessica Cope." Instruction 11 defines "assault" as follows:

An assault is . . . an act done with the intent to create in another apprehension of fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.

Instruction 11 requires intent, which is defined in two other jury instructions. First, instruction 9 states:

A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime.

Second, instruction 12 states:

If a person acts with intent to assault another, but the act harms a third person, the actor is also deemed to have acted with intent to assault any third person who is put in reasonable apprehension and imminent fear of bodily injury.

Under these instructions, intent can be established by showing either (1) that Kelly intended to assault Ms. Cope (direct intent under instruction 9) or (2) that he intended to assault Mr. Cope and that Ms. Cope was put in reasonable apprehension and imminent fear of bodily injury (transferred intent under instruction 12).

Sufficient evidence supports a finding of transferred intent under Instruction 12. Kelly does not dispute that he acted with intent to assault Mr. Cope.^[1] Under instruction 12, this intent transfers to Ms. Cope if she was put in reasonable apprehension and imminent fear of bodily injury. Addressing that issue, Ms. Cope testified that Kelly pointed the silver object in his hand "directly at us" and "[t]owar...