STATE v. THOMPSON, 120 Wn. App. 1055 (2004)

James Thompson appeals the judgment and sentence entered following his conviction by a jury of assault in the second degree. We reject Thompson's challenge to the sufficiency of the evidence, as well as the issues he raises in his pro se statement of additional grounds for review, and affirm. Thompson was charged with assault in the second degree while armed with a deadly weapon based on an incident at Maxie's Lounge in the early morning hours of December 23, 2001. Lori Hilliard testified that she and a friend, Tamara Kearney,¹went to Maxie's at 11:00 p.m. to dance. Hilliard had one strong drink before going to the club. She finished one drink at the club and ordered a second. Hilliard testified that Thompson asked her to dance. When she politely refused, he persisted. She threw the rest of her drink on him, and he responded by slamming his glass into her head. The blow cut her ear and knocked her into Kearney. Hilliard was taken to a hospital where she was treated. Off-duty police officers working as security guards saw Thompson leave the building and followed him. Thompson was running away. The officers yelled to him to stop; he continued running, but they eventually caught him. Thompson's hand was deeply cut and bleeding and required surgery. Pieces of broken glass were collected and admitted at trial, as well as photographs of Hilliard's and Thompson's injuries.

The State presented the testimony of several individuals at the club. Romaine Jackson did not hear or see any conversation between Thompson and Hilliard, but saw Thompson hit Hilliard. He described Thompson's action as almost like a baseball throw and as "pretty violent." Blood and broken glass went everywhere, including on his coat.

Kearney testified that she saw Thompson talking to Hilliard as she walked off the dance floor with Thompson following. She did not hear what they said. When Thompson started to walk away, Kearney looked the other direction. When she looked back, she saw Thompson hit Hilliard with his glass.

Laura King testified that she watched Thompson because she was bored and he looked "scary" and made her nervous. She did not see the incident or what led up to it, but heard glass shatter and Hilliard screaming.

Thompson testified that he arrived at the club about 12:30 to 12:45 a.m. He had one drink and danced twice. He then asked Hilliard to dance, but she became upset and, using a racial slur, accused him of being disrespectful of her. Thompson testified that he turned and walked away, but Hilliard followed him and cursed him, again making a racial slur. Hilliard threw her drink at him and then hid behind a counter when another patron complained of getting wet. When Thompson pointed out Hilliard's hiding place, she stood up and started to swing her glass toward him. Thompson believed his hand was cut when his glass hit Hilliard's glass. He did not intentionally injure Hilliard, did not know she was injured, and left the club to seek emergency help for his injury. When he heard the officers yell to him to stop, he did so and walked back toward them. Several witnesses testified to Thompson's reputation for being peaceful and not aggressive. Officer Anthony Jones testified that he saw Thompson talking to Hilliard, heard Thompson say, "Hey, shorty," and heard Hilliard respond using a racial slur. Jones felt liquid hit his coat; he did not see Thompson hit Hilliard or see her injury.

Dr. Michael Hlastala testified that at 3:02 a.m. Hilliard had a serum blood alcohol of .176 mg/dl, which adjusted to a whole blood value of .153gm/dl. He also estimated that assuming an average burn-off rate for females, Hilliard's blood alcohol concentration (BAC) at the time of the assault would have been between .18 and .19. Hlastala testified that Hilliard would have been in the "excitement to confusion stage of intoxication" and would have been significantly impaired.²

The jury was instructed on self-defense. The jury rejected this defense and found Thompson guilty as charged of assault in the second degree but not guilty of the deadly weapon enhancement.³Thompson appeals. A person is guilty of assault in the second degree if he intentionally assaults another and thereby recklessly inflicts substantial bodily harm, or assaults another with a deadly weapon.⁴RCW9A.36.021(1)(a), (c). The jury was instructed on both alternative means of committing the assault⁵and was instructed on the definitions of "substantial bodily harm"⁶and "deadly weapon."⁷

Thompson contends that the State failed to prove beyond a reasonable doubt either that Hilliard suffered substantial bodily harm or that Thompson assaulted her with a deadly weapon. The argument fails.

When the crime charged can be committed in more than one way, jury unanimity is preserved as long as substantial evidence supports each alternative means.⁸Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.⁹A claim of insufficiency admits the truth of the State's evidence and all inferences reasonably drawn therefrom.¹⁰Circumstantial evidence is equally reliable as direct evidence.¹¹

There was sufficient evidence that Hilliard suffered substantial bodily harm. Hilliard was in surgery for five and one-half hours and received 75 stitches to repair the cut to her ear. She suffered a great deal of pain at the time and continues to have pain. She was subsequently hospitalized overnight when an infection occurred. She has a permanent scar partly hidden by her hair, and her ear is smaller because she lost two parts of it as a result of the injury.¹²

There also was sufficient evidence from which a jury could find that Hilliard was assaulted with a deadly weapon. An item is a deadly weapon if it is readily capable of causing substantial bodily injury under the circumstances in which it was used, including the intent and ability of the assailant, the degree of force, the party of the body struck with it, and the injuries inflicted.¹³

In State v. Shilling,¹⁴the assailant struck the victim with a bar glass described as "pretty strong," knocking off the victim's glasses, breaking the glass on impact, and spraying glass shards 15 feet. The victim suffered lacerations requiring five stitches, and a piece of embedded glass came out of the victim's head a month later. An expert testified that a blow to the head could fracture the nose and/or cause scarring. The court held that the bar glass was readily capable of causing substantial bodily injury and was a deadly weapon for purposes of assault.

Here, viewing the evidence in the light most favorable to the State, Thompson slammed or swung the bar glass at Hilliard's head and caused the injuries already described. Whether it was a beer mug or some other type of thinner glass, under the circumstances it was readily capable of causing substantial bodily injury.¹⁵ Thompson filed a pro se statement of additional grounds for review under RAP 10.10 alleging: (1) the 12-day lapse of time from the beginning to the end of a four-day trial prejudiced him because the jury may have lost interest or forgotten details of the testimony; (2) evidence that the victim admitted to using cocaine two nights earlier and tested positive for cocaine metabolites should have been admitted; (3) the State's witnesses were under the influence of alcohol and could not give a full description of the incident; (4) Laura King's testimony that Thompson looked "scary" and "made her nervous" prejudiced him; (5) the evidence did not establish whether it was Thompson's or Hilliard's glass that injured Hilliard; (6) the victim's statements the night of the incident, at trial, and at sentencing were inconsistent; and (7) Thompson was arrested without the opportunity to give a statement;

We have reviewed his contentions and reject them, noting that several documents attached to the statement are not part of the record on review. Briefly, trial began on a Thursday with pretrial motions. The State's case commenced the following Tuesday and lasted approximately two days. The defense case was presented in one day with the exception of Thompson's expert. There is no indication that the short breaks in trial were out of the ordinary or prejudiced Thompson.

Prior to trial the court considered whether to admit testimony regarding Hilliard's cocaine use. Hilliard tested positive for cocaine metabolites after the assault. She had admitted to using cocaine two days before the assault but denied using it that day. A party can impeach the credibility of a witness with evidence of drug or alcohol use if there is a reasonable inference that the witness was under the influence of the drugs or alcohol at the time of the event and if the party offering the evidence shows a connection between the drugs or alcohol and the witness's ability to perceive or accurately recall the event.¹⁶Thompson's theory that Hilliard and the other witnesses were too drunk to accurately recall the incident was presented to the jury. The trial court properly admitted Dr. Hlastal's testimony regarding Hilliard's alcohol level and the effect it could have on her. But defense counsel offered no evidence regarding how long cocaine could remain in a person's system or how it might affect a witness's memory or perception. Evidence of Hilliard's cocaine use was properly excluded. Inconsistencies in the witness's testimony related to credibility and went to the weight of the evidence, which was for the jury to determine.¹⁷Any error in admitting King's testimony that Thompson looked "scary" and "made [her] nervous" is not preserved on appeal because it came in without objection, but in any event the testimony was thoroughly impeached on cross-examination.

Finally, Thompson's argument that he was not given the opportunity to give a statement is inconsistent with the record.¹⁸

Affirmed.

SCHINDLER and Becker., JJ., concur.Page 1056