State Of Washington, Res/cross-app. V. Raymond Lloyd Atchison, App/cross-res.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
RAYMOND LLOYD ATCHISON,
Appellant.
No. 68311-0-1 	E| 	^s
DIVISION ONE 	% 	oSr.
UNPUBLISHED OPINION 	~ 	f/^)
FILED: 	June 17,2013
CO
ST
Leach, C.J. — Raymond Atchison appeals his conviction for two counts of
second degree assault while armed with a deadly weapon. 	Atchison contends
that the trial court erred by not instructing the jury on an inferior degree offense of
fourth degree assault and on a lesser included offense of unlawful display of a
weapon. 	Because the evidence did 	not support an 	inference that Atchison
committed 	only 	a 	fourth 	degree 	assault and 	because 	the 	evidence did 	not
affirmatively indicate that he committed only an unlawful display of a weapon, we
affirm.
Background
On the evening of October 2, 2011, six co-workers, Tim Lankhaar, Brian
Skywalker, Nicholas Fritzberg, Patrick Malone, Jordan Slagle, and James Allen
were dining at a Jack in the Box restaurant in Marysville. 	Cory Mehler, who was
dating Lankhaar's sister, was also dining with them.

No. 68311-0/2
At approximately 	7:30 	p.m., 	Raymond 	Atchison, 	while brandishing 	a
pocketknife, approached Mehler. 	Mehler recalled he was eating when Atchison
came from behind, hit him on the side of his head, and held a knife against his
throat. 	He feared Atchison was going to slash his throat. 	As Mehler tried to hold
the 	knife 	away from 	his throat, 	Lankhaar immediately stood 	up and 	pulled
Atchison away. Atchison then turned to Lankhaar. 	As Mehler tried to stand up,
Atchison turned back and pushed 	him 	back down to his seat with the 	knife
against his stomach.
Lankhaar thought all the focus was on him when Atchison turned to him
and approached him with the knife. 	Lankhaar testified that he felt threatened by
seeing the knife and the look in Atchison's eyes. He yelled, "Are you really going
to stab me in the Jack in the Box?" 	Atchison did not respond. 	Lankhaar also
testified that he was "a little" frightened that Atchison was actually going to stab
him.
The 	other witnesses' 	accounts 	of the 	incident vary. 	Skywalker saw
Atchison come up to Mehler and put a foldout knife on Mehler's chest and point it
toward his neck. 	He testified that when Atchison turned toward Lankhaar, he
saw Atchison pointing a knife at Lankhaar. 	He also stated Atchison was about
two or three feet away from Lankhaar.
Allen saw Atchison walking toward Mehler with a knife in his hand. 	When
Atchison was about five feet away from Mehler, Allen heard 	a "click" sound.
Then, he recalled that Atchison approached Mehler from behind and brought a

No. 68311-0/3
knife to his neck area. 	When Lankhaar intervened, Allen saw Atchison with the
knife extended toward Lankhaar, "just ready to use it."
Fritzberg, 	Malone, 	and Slagle 	did 	not see Atchison 	point 	a 	knife 	at
Mehler's throat or neck area. 	Only after 	Lankhaar intervened did they see
Atchison with a knife. Although Fritzberg saw Atchison point the knife at Mehler's
stomach in a threatening manner, he testified that Atchison pointing a knife at
Lankhaar from a foot away "wasn't really threatening, I guess." 	Malone also saw
the knife, but only after Lankhaar intervened. 	He testified that the knife was
pointing 	down 	when 	Atchison 	approached 	Lankhaar. 	As to the 	assault on
Mehler, Malone recalled that Atchison "made a movement back towards" Mehler
and sat him back down, but Malone did not see a knife.
The witnesses described the knife as a pocketknife with a serrated blade
that was between two to four inches in length. 	Responding 	officers found a
foldout knife tucked in the back passenger seat where Atchison was sitting at the
time of the arrest. 	The knife had a blade three and a half inches in length, half-
serrated and half-straight.
The State charged Atchison with two counts of second degree assault
with 	a 	deadly 	weapon. 	At 	the 	conclusion 	of the trial, 	Atchison 	proposed
instructions on the lesser degree offense of fourth degree assault and the lesser
included offense of unlawful display of a weapon. 	The trial court rejected both
requests, concluding that the evidence did not support an inference that only the
lesser offenses were committed to the exclusion of second degree assault with a
-3-

No. 68311-0/4
deadly weapon. 	The jury found Atchison guilty on 	both counts, 	including a
special verdict that he was armed with a deadly weapon. Atchison appeals.
Standard of Review
Atchison contends that the trial court abused its discretion by declining to
give the requested jury instructions based on the evidence. 	We review a trial
court's refusal to give an instruction based on a factual dispute for abuse of
discretion.1 	A trial court abuses its discretion when its decision is manifestly
unreasonable or is based on untenable grounds.2 	A trial court's decision is
manifestly unreasonable if it is outside the range of acceptable choices, given the
facts and the applicable legal standard.3 A court bases its decision on untenable
grounds if that court applies the wrong legal standard or relies on unsupported
facts.4
Analysis
Atchison contends that the trial court erred by failing to instruct the jury on
the lesser degree offense of assault in the fourth degree. 	The trial court declined
to do so because the record contained 	no affirmative evidence supporting a
rational conclusion that Atchison committed only fourth 	degree assault. 	We
affirm.
1 State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).
2 State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
3 Rohrich, 149 Wn.2d at 654.
4 Rohrich, 149 Wn.2d at 654.

No. 68311-0/5
RCW 	10.61.003 	provides, 	"Upon 	an 	indictment or 	information 	for an
offense consisting of different degrees, the jury may find the defendant not guilty
of the degree charged in the indictment or information, and guilty of any degree
inferior thereto, or of an attempt to commit the offense."
One crime is inferior in degree to another 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.151
The first two factors are the legal components of the test, while the third
factor entails a factual inquiry.6 	RCW 10.61.003 provides that a defendant may
be convicted of a lesser degree offense, and here, because fourth degree assault
is an inferior degree to second degree assault,7 the legal component is satisfied.
To satisfy the factual component, 	"substantial evidence 	in 	the 	record
[must] support[] a rational inference that the defendant committed only the lesser
included or inferior degree offense to the exclusion of the greater offense."
While the evidence is viewed in the light most favorable to the defendant, it must
5 State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997).
6 State v. 	Fernandez-Medina, 	141 	Wn.2d 	448, 	454-55, 	6 	P.3d 	1150
(2000).
7RCW9A.36.041.
8 Fernandez-Medina, 141 Wn.2d at 461.

No. 68311-0/6
"affirmatively establish the defendant's theory of the case—it is not enough that
the jury might disbelieve the evidence pointing to guilt."9
As charged and tried, the only difference between second degree assault
and fourth degree assault was the use of a knife as a deadly weapon. 	Atchison
contends the evidence supports an inference that he did not use the knife in a
manner "likely to produce or may easily and readily produce death." 	Therefore,
he claims a jury could find he was guilty only of fourth degree assault. 	We
disagree. 	Several witnesses corroborated the testimony that Atchison held the
knife 	against 	Mehler's 	throat 	and 	stomach. 	Mehler 	also 	heard 	Atchison
threatening to stab him and believed that he was going to get his throat slashed.
Although the testimony conflicted as to exactly where Atchison pointed his knife,
all but one of the witnesses testified to the fact that Atchison held the knife
against Mehler's body in a threatening manner.
Atchison also fails to demonstrate that a jury could rationally decide that
he 	used 	the 	knife only to intimidate Lankhaar. 	All witnesses saw Atchison
approaching Lankhaar with a knife in his hand after Lankhaar intervened to stop
Atchison from threatening Mehler. 	Mehler recalled Atchison threatening to stab
Lankhaar. 	Lankhaar also testified that he felt threatened once Atchison turned
on him and started to approach him with a knife pointed at him.
9 Fernandez-Medina, 141 Wn.2d at 456 (citing State v. Fowler, 114 Wn.2d
59, 67, 785 P.2d 808 (1990), overruled on other grounds by State v. Blair, 117
Wn.2d 479, 816 P.2d 718 (1991)).

No. 68311-0/7
The jury was instructed, 	"Deadly weapon means any weapon, device,
instrument, substance, or article, which under the circumstances in which it is
used, attempted to be used, or threatened to be used, is readily capable of
causing death or substantial bodily harm." 	Here the jury concluded that the knife
was a deadly weapon because Atchison 	used the knife in a manner readily
capable 	of causing 	death or substantial 	bodily 	harm 	against 	Mehler 	and
Lankhaar. The record does not support any rational inference that Atchison only
displayed a knife to intimidate. 	As a result, Atchison fails to demonstrate with
affirmative evidence that only a fourth degree assault occurred.
Atchison 	next 	contends 	that 	the 	trial 	court 	erred 	in 	denying 	a 	jury
instruction on unlawful display of a weapon as 	a lesser included offense to
second degree assault with a deadly weapon. 	A defendant is entitled to an
instruction on a 	lesser included 	offense if (1) all the elements of the lesser
offense are necessary elements of the greater offense (the legal prong) and (2)
the 	evidence 	in 	the 	case 	supports an 	inference that the 	lesser crime was
committed 	(the factual 	prong).10 	Displaying 	a weapon 	is 	a lesser included
offense of second degree assault with a deadly weapon.11 	So, here, again, only
the factual prong is at issue. 	The factual prong of this test is the same as that for
10 State v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997); State v.
Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
^n re Pers. Restraint of Crace, 157 Wn. App. 81, 107-08, 236 P.3d 914
(2010), rev'd on other grounds, In re Pers. Restraint of Crace, 174 Wn.2d 835,
280P.3d 1102(2012).

No. 68311-0/8
inferior degree instructions,12 that is, "'the evidence must raise an inference that
only 	the 	lesser 	included . . . offense 	was 	committed 	to 	the 	exclusion 	of the
charged offense.'"13
Atchison bases his argument for the lesser included instruction on the
conflicting testimony of witnesses as to the manner in which Atchison used the
knife. 	Specifically, Atchison points to the testimony of several witnesses who did
not perceive his 	use of the knife against Lankhaar as truly threatening. 	His
argument fails. 	Here, the evidence shows that Atchison used the knife in a
threatening manner. 	This court has stressed, "[Wjhether there has or has not
been 	an 	assault 	in 	a 	particular 	case 	depends 	more 	upon 	the 	reasonable
apprehension and fear of bodily injury created in the victim's mind by the actor's
apparent present ability to cause bodily harm, than upon the actor's undisclosed
intention."14 	Thus, where, as here, if one menacingly points a knife at another
within stabbing distance, he commits more than an unlawful display of a weapon.
Conclusion
Because the 	record 	does 	not contain 	affirmative evidence that would
permit a jury to rationally find that Atchison committed only the lesser crimes of
12 Fernandez-Medina, 141 Wn.2d at 455.
13 State v. Porter, 150 Wn.2d 732, 737, 82 P.3d 234 (2004) (alteration in
original) (quoting Fernandez-Medina, 141 Wn.2d at 455).
14 State v. Krup, 36 Wn. App. 454, 457-58, 676 P.2d 507 (1984).

No. 68311-0/9
fourth degree assault or unlawful display of a weapon, the trial court did not
abuse its discretion. We affirm.
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WE CONCUR:
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