IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON ,

Respondent ,

v. JUSTIN C. LEWIS , Appellant

. ) ) ) ) ) ) ) ) ) No. 35775

- 9

- III

UNPUBLISHED OPINION

S IDDOWAY , J.

— Justin Lewis challenges the sufficiency of evidence to support his conviction for first degree assault

. It is undisputed that Mr. Lewis was present when his cousin, David Rickman, struck Michael Evans with a table le g repurposed to serve as a bludgeon . V iewed in the light most favorable to the State, the evidence demons trated that Mr. Lewis participated in the assault as an accomplice

. Because the evidence was sufficient and Mr. Lewis raises no viable challenge in a statement of additional grounds, we affirm the conviction. We grant Mr. Lewis’s motion challenging the trial court ’s imposition of criminal filing and DNA 1 collection fees , and remand with directions to strike them

.

1 Deoxyribonucleic acid

. 

### FILED APRIL 11 , 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 35775

- 9

- III

State v. Lewis

2

FACTS AND PROCEDURAL BACKGROUND On a n evening in the spring of 2017, a female acquaintance of Michael Evans expressed interest in buying hydrocodone he had offered to obtain. She said she would send her friend, Justin Lewis, to pick up Mr. Evans at the Albertson ’s store in Clarkston.
Mr. Lewis arrived at the grocery store as arranged , and Mr. Evans told him that they needed to go to an apartment complex in Lewiston Orchards , where he would pick
up the drugs

. Mr. Lewis said he needed to stop at his place quickly first. He drove t o his apartment and went inside while Mr. Evans waited in the truck. While Mr. Evans waited , a man he did not know but who turned out to be Mr. Lewis’s cousin, David Rickman, wa lked out toward the truck and spoke to Mr. Evans

. Mr. Evans’s and Mr. Lewis’s versi ons of what happened next diverge. Mr. Evan’s version of events is that Mr. Rickman noticed he was holding electrical tape and asked for some, which Mr. Evans provided. 2 Mr. Rickman then walked to the back of the truck, where Mr. Evans heard him talking t o someone. He assumed it was Mr. Lewis, who came back out to the truck shortly after Mr. Rickman. Mr. Lewis then walked to the front passenger doo r where Mr. Evans was sitting sideways, with the door open. Mr. Lewis was holding what appeared to Mr. Evan s to be

2 Both counsel asked at trial why Mr. Evans was carrying electrical tape. Mr. Evans had n o explanation other than that it is useful.No. 35775

- 9

- III

State v. Lewis

3 a handgun (it turned out to be a BB gun) and began asking him a ccusatory questions about the night before, when Mr. Evans had shared some heroin with Michelle Curran , Mr. Lewis’s girlfriend. It is not clear what Mr. Lewis ’s questions implied, but Mr. Evans objected, telling him, “You’ve got this wrong. ” R eport of P roceedings (RP) at 167. As Mr. Evans sought to placate Mr. Lewis, Mr. Rickman had walked to and opened the truck’s driver’ s side door . He reached in and stru ck the back of Mr. Evans ’s head with a wooden table leg, to the end of which (using electrical tape) he had attached a large hex nut bolt. After he was struck a couple of times, Mr. Evans believes ( but i s not sure) that Mr. Lewis grabbed him , pulled him o ut of the truck , and threw him to the ground

. He claims M r. Lewis and Mr. Rickman continued to kick and beat him while he was on the ground , telling him to give them his “stuff,” which he as sumed meant his drugs. RP at 169. He was carrying heroin. The two men finally stopped when Ms.
Curra n, who Mr. Evans was unaware had arrived at the scene, said, “ Hey, t hat’s enough.”
RP at 170. Seeing Ms. Curran , Mr. Evans pleaded with her to tell the men he had no t done anything. When it appeared she was not going to say anything to help him, he fled. He first hid in a field and then sought help at a home in the area, whose owners let
him in and called police. Mr. Evans lied to the responding deputy sheriff , Deputy Nathan Conley, telling him he was walking down the street when he was jumped b y twoNo. 35775

- 9

- III

State v. Lewis

4 unknown men. 3 ( He later explained that he lied because he was carrying heroin and did not want to admit the drug involvement

. ) That night, however, h e provide d Deputy Conley with a description of the men and of the brown and black bac kpack he claimed they had taken , which bore the letters “FUL” across the front. He also told the deputy that after being chased and hiding, he observed a white Chevrolet pickup truck going up and down the road that he be lieved was involved. While being interviewed by Deputy Conley, medics evaluated Mr. Evans, and asked to transport him to a hospital. He declined the ambulance transport, later explaining that he could no t afford it.
I nformation provided by Mr . Evans was enough to enable a patrol deputy to locate Mr. Lewis’s truck and pull it over . The patrol deputy observed a backpack in the truck that met Mr. Evan s’s description. W hen aske d about the backpack , Mr. Lewis told the patrol deputy it was his. H e claimed to know nothing about any assault or attempted robbery.
Th e patrol deputy arranged for Deputy Conley to transport Mr. Evans for a field show up. When Mr. Evans identified Mr. Lewis as one of his attackers and identified the backpa ck , the patrol deputy placed Mr. Lewis under arrest. In a search incident to arrest, he recovered drug paraphernalia that proved to contain residue. He did not find Mr. Lewis to be carrying any cash.

3 In a conversation with the deputy sheriff the next day, Mr. Evans admitted lying, that a planned drug exchange had led to the assault , and that he knew Mr. Lewis

.No. 35775

- 9

- III

State v. Lewis

5 Mr. Lewis cons ented to Deputy Conley’s search of his truck, during which the deputy located Mr. Evans’s wallet and cell phone. In a search of the bed of the truck, the deputy found the modified table leg and showed it to Mr. Evans. Mr. Evans expressed his belief that it was the weapon used in the assault. The deputy sh eriff also noticed blood on Mr. Lewis’s shirt and arranged for it to be taken into evidence once Mr. Lewis arrived at the jail. DNA in the blood stain on the shirt later proved to be a match for Mr.
Evans. A BB pistol was later found in the passenger com partment of the truck

. The deputy sheriff read Mr. Lewis Miranda 4 warnings and Mr. Lewis agreed to speak. When asked generally about his activities that evening, he described taking friends to Walmart and going to his mother’s house , but made no mention of any assault or robbery. When asked more pointed ly about a robbery or assault , Mr. Lewis said he saw two men assaulting another man, but he was not involved. A sked why , if he was not involved, he had the victim’s back pack and property, Mr. L ewis said he did not know. The deputy sheriff later described Mr. Lewis as appearing to b e “under some sort of
influence ” during the questioning

. RP at 66

.

4 Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 35775

- 9

- III

State v. Lewis

6 Later in the evening, on the advice of the deputy sheriff, Mr. Evans went to the
emergency room. He had a wound on the back of his head tha t was open and bleeding, a hematoma on his side, a fractured hip, and a broken pelvis. Mr. Lewis was charged with first degree assault, first degree robbery, possession of a controlled substance, and possession o f drug paraphernalia. Deadly weapon enhancements were charged in connection with the first two counts. At trial, the State presented evidence of all of the foregoing matters. Mr. Lewis testified in his own defense. His version of events was largely con sistent with Mr. Evans’s up to the point where Mr. Lewis returned to the truck from his apartment and began questioning Mr. Evans. Mr. Lewis said he merely asked Mr. Evans “what might have happened that night before

. . . just to get clarification.” RP a t 243. He testified that he never pulled Mr. Evans out of the truck, and that Mr. Evans got out on his own after being struck two times by Mr. Rickman. He testified that Mr. Evans was “actually knocked out” by Mr. Rickman’s blows, and that it was he who stopped Mr. Rickman ’s attack by telling him, “T hat’s enough.” RP at 245. He denied ever striking or kicking Mr. Evans and testified that he tried to hel p him. According to him, when Mr. Evans regained consciousness he started “swinging everywhere” and hit Ms. Curra n, who had approached the truck. RP at 244. Mr. Lewis testified he took nothing from Mr. Evans that night . Instead, when Mr.
Evans fled, he left his belongings behind

. He claimed the assault on Mr. Evans wasNo. 35775

- 9

- III

State v. Lewis

7 committed by Mr. Rickman alone. The only explanation he offered for Mr. Rickman’s actions was that his cousin “has a very

— tempe r when he

—

when he’s high.” RP at 261. The jury found Mr. Lewis guilty of all counts and returned special verdicts that Mr. Lewis or an accomplice was armed w ith a deadly weapon during the assault and the robbery. Mr. Lewis appeals.
ANALYSIS Mr. Lewis makes one assignment of error to the sufficiency of the evidence to prove he was guilty of first degree assault as a principal, and another to whether the eviden ce was sufficient to prove him guilty of first degree assault as an accomplice. The jury was instructed on accomplice accountability and could have found Mr. Lewis guilty as a principal or accomplice. W e need not examine whether the evidence was sufficie nt to prove both. First degree assault was charged under RCW 9A.36.011(1)(a). The to

- convict instruction set forth the essential elements the State was required to prove:

To convict the Defendant of the crime of Assault in the First Degree as charged in Count 1, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 4th day of April 2017, the Defendant or an accomplice assaulted Michael Evans; (2) That the assault was committed with a deadly weapon or by a force or means likely to produce great bodily harm or death; (3) That the Defendant or the accomplice acted with intent to inflict great bodily harm; andNo. 35775

- 9

- III

State v. Lewis

8

(4) That the acts occurred in Asotin County, the State of Washington. C lerk’s Papers (C P ) at 2 7. Mr. Lewis argues that the evidence was ins ufficient to prove the second and third elements of the instruction beyond a reasonable doubt. The standard of review for a defendant’s challenge to the sufficiency of the evidence requires us to view the evi dence in the light most favorable to the State and determine “whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt.” State v. Brown , 162 Wn.2d 422, 428, 173 P.3d 245 (2007). “A claim of insuffici ency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” State v. Salinas , 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “I n determining the sufficiency of the evidence, circumstantial evidence is not to be co nsidered any less reliable than direct evidence.” State v. Delmarter , 94 Wn.2d 634, 638, 618 P.2d 99 (1980). This court defers to the fact finder on issues of witness credibility and persuasiveness of the evidence. State v. Thoma s , 150 Wn.2d 821, 874

- 75 , 83 P.3d 970 (2004) , aff’d , 166 Wn.2d 380, 208 P.3d 1107 (2009)

. I

. T HE EVID ENCE WAS SUFFICIENT TO PROVE USE OF A DEADLY WEAP ON In connection with the second element

— that the assault was committed with a deadly weapon or by a force or means likely to pro d uce great bodily harm or death

— theNo. 35775

- 9

- III

State v. Lewis

9 State’s theory was that the repurposed tabl e leg wielded by Mr. Rickman was a deadly
weapon. Jurors were instructed that “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. CP at 31 (Instruction 9). The circumstances of a weapon’ s use include the intent and present ability of the use, the degree of force, the part of the body to which it was applied, and the physical injuries inflicted. State v. Winings , 126 Wn. App. 75, 88, 107 P.3d 141 (2005). The table leg was used by Mr. Rickman to strike Mr. Evans in the head. Even Mr. Lewis admitted that it was a “serious weapon” with “a lot of heft.” RP at 251

- 52. The leg was admitted into evidence, and in closing argument, the State encouraged jurors to examine it: [L]adies and gentlemen of the jury, pick th is thing up. You’ll go back

— y ou’ll get

— get to take this back with you. Pick it up. Feel the heft. Feel the weight on the end. Think about the damage that could be done to a person’s skull, striking them with this

— this

— this implement. RP at 316. In its own closing argument, the def ense did not contest the characterization of the table leg as a deadly weapon. It admitted that evidence Mr. Evans was struck twice in the back of the head with the table leg “is consistent with what you saw in the pictures.No. 35775

- 9

- III

State v. Lewis

10 Clearly he was struck.” RP a t 330. The defense told jurors that “Mr. Rickman did indeed attack Mr. Evans.” RP at 331. The defense challenged only whether the State had proved that Mr. Lewis participated in the assault as a principal or as Mr. Rickman’s accomplice. The State’s evi d ence was sufficient to prove use of a deadly weapon.
II. T HE EVIDENCE WAS SUFF ICIENT TO ESTABLISH THAT M R
. L EWIS AND M R
. R ICKMAN ACTED IN CONC ERT AND THAT ONE OR BOTH OF THEM ACTED WITH INTENT TO INFLICT GR EAT BODILY HARM Mr. Lewis makes a multifaceted challenge to the sufficiency of the State’ s evidence to prove that acting as a principal or accomplice, he intended , in assaulting Mr. Evans, to inflict great bodily harm. First degree assault requires proof of specific intent, which is intent to produce a specific result: in the case of first degree assault, to inflict great bodily harm. State v. Elmi , 166 Wn.2d 209, 215, 207 P.3d 439 (2009). In determining intent, the “jury may consider the manner in which the defendant exerted the force and the nature of the victim’s injuries to the extent that it reflects the amount or degree of force necessary to cause the injury.” State v. Pierre , 108 Wn. App. 378, 385, 31 P.3d 1207 (2001). While specific intent may not be presumed, the jury may infer it “as a logi cal probability from all the facts and circumstances.” State v. Wilson , 125 Wn.2d 212, 217, 883 P.2d 320 (1994). Mr. Lewis first argues the State failed to prove that Mr. Evans sustained great bodily harm, which w as defined for jurors as bodily injury “th at creates a probability ofNo. 35775

- 9

- III

State v. Lewis

11 death or which causes significant, serious impairment, disfigurement or that causes a significant permanent loss or impairment of the function of any bodily part or organ.” RP
at 288. But the third element of the to

- convict in struction required only proof that the defendant intended to inflict great bodily harm , not that such harm was inflicted, consistent with RCW 9A.36.01 1(1 )(a)

. Mr. Lewis next argues that the State ’s evidence was insufficient to prove even an intent to inflict great bodily harm . Two of his arguments can be rejected summarily: he contends there was no evidence of any plan to use the table leg as a weapon , and that Mr. Lewis stopped the attack by saying, “ [ T ] hat’ s enough. ” RP at 170. T hose arguments view the evidence in the lig ht most favorable to Mr. Lewis, contrary to the standard of review. Direct evidence from Mr. Evans established that it was Ms. Curran, not Mr.
Lew is, who uttered words that suspended the attack. And the attackers’ opportunity to identify the tab le leg as a weapon, its modification, and Mr. Rickman’s use of it is
sufficient circumstantial evidence of a plan to use it as a weapon. Mr. Lewis also argues there was not enough evidence of blood or physical evidence of a fight at the scene to prove the required intent. He also attaches significance
to the fact that Mr. Evans was well enough to travel to a field show up before going to the hospital. Using a blu dgeon to strike someone’s skull and kicking someone on the grou nd with eno ugh force to fracture a hip, break a pelvis , and cause the discoloration andNo. 35775

- 9

- III

State v. Lewis

12 swelling observed by Deputy Conley, could be found by a reasonable juror as evincing an intent to cau se great bodily injury. And jurors could reasonably infer that Mr. Rickman and Mr. Lewis intended more harm than they inflicted, since Mr. Lewis was able to
escape. The evidence was sufficient to prove the required specific intent. Finally, Mr. Lewis challenges the sufficiency of the evid ence to support his liability as an accomplice. Specifically, he argues that the State was required to prove his knowledge that Mr. Rickman intended to inflict g reat bodily harm. Br. of Appellant a t 13. A person is an accomplice to a crime if “with knowl edge that it will promote or facilitate the commission of the crime, he or she . . . encourages . . . [ another ] person to commit [ the crime ] . . . or . . . [ a ] ids or agrees to aid another person in planning or committing [ the crime ] .” RCW 9A.08.020(3). “ [A] jury is not required to determine which participant acted as a principal and which participant acted as an accomplice.” In

re Pers. Restraint of Hegney , 138 Wn. App. 511, 524, 158 P.3d 1193 (2007). Contrary to Mr. Lewis’s argument, the State was requ ired to present evidence that Mr. Lewis acted

on a plan to assault Mr. Evan s

— not that he foresaw that his and Mr. Rickman’s actions would qualify as first degree assault. It is a longstanding rule that “ an accomplice need not have specific knowledge of ev ery element of the crime committed by the principal, provided that he, the accomplice, has general knowledge of that specific crime .” In reNo. 35775

- 9

- III

State v. Lewis

13 Pers. Restraint of Sarausad , 109 Wn. App. 824, 8 35, 39 P.3d 308 (2001). Where the charge is assault in the first o r second degree, an accused

. . . must have known generally that he was facilitating an assault, eve n if only a simple, misdemeanor level assault, and need not have known that the principal was going to use deadly force or that the principal was armed. Id

. at 836. The evidence was more than sufficient to prove that Mr. Lewis acted as an accomplice. It included Mr. Evans’s testimony that Mr. Lewis was one of his attackers, throwi ng him from the truck onto the ground, and kicking him. Even if jurors believed that only Mr. Rickman had inflicted the physical harm, plenty of circumstantial evidence, viewed in the light most favorable to the State, supported the State’s theory that Mr. Lewi s enlisted his cousin’s help to assault Mr.
Evans a nd take his heroin. There was a detour to Mr. Lewis’s apartment, where Mr. Rickman coincidentally appeared and approached Mr. Evans and the truck. Mr. Evans testified to his belief that Mr. Lewis and Mr. Rickman spoke together quietly before Mr. Rickman’ s attack. While Mr. Lewis distracted Mr. Evans with puzzling questioning, Mr. Rickman reached through the driver’s side door to strike Mr. Lewis from behind with his repurposed weapon

— an action for which the State’s theory appeared to be the only plausibl e explanation. When stopped by police and questioned, Mr. Lewis falsely claimed that Mr. Evans’s backpack was his and made inconsistent statements (althoughNo. 35775

- 9

- III

State v. Lewis

14 continually false statements ) about what he knew about an assault taking place earlier in the even ing. The search incident to arrest revealed that Mr. Lewis was carrying no money, yet his reason for picking up Mr. Evans had ostensibly been to make a drug purchase. Mr. Lewis’s version o f events was full of holes. W e defer to the jurors’
decision not to believe him.
III. W E GRANT M R
. L EWIS ’ S MOTION TO REMAND W ITH DIRECTIONS TO ST RIKE TWO LEGAL FINANCIAL OBLI GATIONS (LFO S ) Relying on State v. Ramirez , 191 Wn.2d 732, 426 P.3d 714 (2018), which was decided after Mr. Lewis filed his opening brief, Mr. Lewi s filed a motion to strike the criminal filing and DNA collection fees imposed in his judgment and sentence. Ramirez holds that amendments made in 2018 to Washington’s legal financial obligation system, which provide relief to offenders in a number of res pects, apply prospectively to cases on direct review. Id. at 749

- 50. The 2018 amendments prohibit imposition of a $200 criminal filing fee on defendants who are indigent at the time of sentencing as defined by RCW 10.101.010(3)(a)

- (c). RCW 36.18.020(2)(h ). Mr. Lewis was found by the trial court to be indigent for purposes of appeal. The amendments prohibit the assessment of a DNA database fee if the State has previously collected the defendant’s DNA as a result of a prior conviction. RCW 43.43.7541. Mr . Lewis’s criminal history reve als several prior felonies, on the basis ofNo. 35775

- 9

- III

State v. Lewis

15 which we will accept his contention that his DNA has been collected before. We grant Mr. Lewis the relief requested by his motion and direct the trial court to strike the $200
fili ng fee and $100 DNA fee from his judgment and sentence.

STATEMENT OF ADDITIO NAL GROUNDS In a pro se statement of additional grounds (SAG) , Mr. Lewis raise s two. He first argues that the “county jail” had him wear an orange jail

- issued shirt at trial. SAG at 1. Several witnesses, when asked to identify Mr. Lewis in the courtroom, described him as wearing an orange shirt. Two of them described him as wearing a blue or green shirt

o ver the orange shirt, however.

“ ‘ The State cannot, consistent with the r ights guaranteed by the Fourteenth Amendment, compel a defendant to stand trial before a jury dressed in jail attire identifiable by a jury as such. ’ ” State v. Sanchez , 122 Wn. App. 579, 587, 94 P.3d 384 (2004) (quoting State v. Stevens , 35 Wn

. App. 68, 70, 665 P.2d 426 (1983) ). Instances arise where a defendant chooses to stand trial in prison garments, however, so “ ‘[ t ] he particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire. ’” Id

. (alteration in original) (quoting Estelle v. Williams , 425 U.S. 501, 508, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976)). Courts require an accused to object to being tried i n jail garments, “‘ just as he must invoke or abandon other rights. ’” Id

. If Mr. Lewis’s orange shirt was jail attire, he did not object that he was being required to wear it. The issue was not preserved.No. 35775-9-111 State v. Lewis

Mr. Lewis's second ground is that his trial lawyer failed to strike a juror despite
Mr. Lewis telling the lawyer that the juror had done work at the county jail and would recognize him as an inmate. Nothing about this appears in the record. Because this court
has no ability to assess this argument without a record, Mr. Lewis's remedy is to seek
relief by personal restraint petition. State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d
1159 (1991 ). To prove ineffective assistance of counsel, he will need to demonstrate that
his trial lawyer's representation was both deficient and prejudicial. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Strickland v. Washington, 466 U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
We affirm the assault conviction and remand with directions to strike the court's imposition of the criminal filing and DNA collection fees.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Siddoway, J.
WE CONCUR: 

# Q_
Pennell, A. C .J.

16