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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. JOSE JAIME ROSALES-CONTRERAS, Appellant. No. 72911-0-1 DIVISION ONE UNPUBLISHED OPINION FILED: April 18, 2016 

### Appelwick, J. — Rosales-Contreras appeals his conviction for firstdegree assault. He argues that the State failed to prove that he intended to inflict great 

### bodily harm. In a statement of additional grounds, Rosales-Contreras contends that he received ineffective assistance of counsel and asserts that the trial court 

### abused its discretion by denying his challenge to remove a juror for cause. We affirm. FACTS Jose Rosales-Contreras and Maria Dimas were married in 2003. Shortly 

### aftertheywere married, thetwobegan arguingfrequently. Theyargued mostoften aboutfinances and disciplining the children. Dimas had two sons from a previous relationship, Emilio and Jacob. And, Rosales-Contreras and Dimas had two sons together, Andrew and Giovanni.No. 72911-0-1/2
Rosales-Contrerastreated Emilioand Jacob differentlythanAndrewand Giovanni. Emilio and Jacob both had long lists ofchoresthattheywere expectedto complete before Rosales-Contreras came home each night. On April 2, 2008, Rosales-Contreras came home to find that thirteen year old Emilio had not finished his chores. He was furious, yelling at Emilio in the kitchen. He was just inches away from Emilio. From the bedroom Dimas heard Rosales-Contreras yelling, and she went into the kitchen to protect her son. She inserted herselfin between Rosales-Contreras and Emilio. Rosales-Contreras told Dimas to move, but she refused, telling him," Tm not moving. You're not going to 

### hit my son.' " Rosales-Contreras again told Dimas, " 'Move or I'm going to hit you.'" Dimas stood her ground, and told Rosales-Contreras, " 'You're not going to hurt my son. You're not going to touch my son.'" Dimas then saw Rosales-Contreras lift up his arm, and his fist came at her. 

### Dimas sawa flash of bright light. Shefeltsomething dripping from hereye. Dimas
was in unbearable pain, and she was afraid. 

### The next thing Dimas remembered, she was inthe bathroom. She could tell that her eye was bleeding, and she could not open up her eyelid because it 

### hurt too much. Afterlying in bed in pain forseveral hours, Dimas realized she had to see a doctor about her eye. She asked Rosales-Contreras to take her to the 

### hospital, but he was too afraidthathe would be arrested. So, Dimas drove herself to the urgentcarethatwas 10 minutes away from her home.No. 72911-0-1/3


### Dimas had surgery, but she ultimately lost her vision inthat eye. Her eye had shrunk, and she had to have a plastic sphere implanted to maintain the shape ofhereye. Dimas did not immediately reportwhat Rosales-Contreras had doneto her. Rosales-Contreras left the family and went to Mexico in December 2008. Once she knewthat Rosales-Contreras was not coming back, Dimasfiled for dissolution 

### and soughta protection orderagainsthim. InMarch 2009, shewenttothe Federal Way Police Departmentto reveal what Rosales-Contreras had done to her. Rosales-Contreras was first charged with assault in the second degree

- domesticviolence on March 24, 2009. But, he did not appearat arraignment. The State amended the information on February 3, 2011 to charge Rosales-Contreras 

### withassault inthe firstdegree

- domestic violence, with an aggravating factor for 

### committing the crimewithinthe sight orsoundof a minor child. Rosales-Contreras
was apprehended inJanuary 2014. 

### The case proceeded to trial, and thejury convicted Rosales-Contreras as charged. He appeals. DISCUSSION 

### Rosales-Contreras argues that the sufficiency of the evidence does not support his conviction, because the State did not prove that he intended to inflict 

### great bodily harm. In a statement of additional grounds, Rosales-Contreras asserts that he received ineffective assistance of counsel, because his trial 

### attorney did not present an involuntary intoxication defense, request a lesser included offense instruction, argue that ER 404(b) evidence should be excluded,No. 72911-0-1/4

or obtain evidence to support his theory ofthe case. And, he argues thatthe trial court abused its discretion by denying his challenge to remove ajurorfor cause. I. Intent to Inflict Great Bodily Harm Rosales-Contreras arguesthatthe Statedid notprove beyond a reasonable doubt that he acted with specific intent to inflictgreat bodily harm on Dimas. He contends that because he struck Dimas only a single time with his fist, and her
severe injury was unexpected, the evidence was insufficient to support his conviction. When faced with a challenge to the sufficiency of the evidence, this court asks whether any rational trier offact could have found the essential elements of 

### the crime beyond a reasonable doubt. Statev. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012). Indoing so, we view the evidence inthe lightmost favorable to the State, jd. All reasonable inferences are drawn in favor of the State and interpreted most strongly againstthe defendant. State v. Salinas. 119Wn.2d 192, 

### 201, 829 P.2d 1068 (1992). Credibilitydeterminations are forthe trier of fact, and we do not reviewthem on appeal. Statev. Camarillo, 115Wn.2d 60, 71, 794 P.2d 850(1990). A person commits assault inthe first degree when he or she "withintentto 

### inflictgreatbodily harm .
.. assaults anotherand inflicts greatbodily harm." RCW 9A.36.011. Great bodily harm is defined as "bodily injury which creates a probability ofdeath, or which causes significant serious permanentdisfigurement, or which causes a significant permanent loss or impairment ofthe function ofany 

### bodily part or organ." RCW 9A.04.110. The fact ofgreat bodily harm standingNo. 72911-0-1/5
alone is notsufficientto prove assault inthefirst degree. See Statev. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994) (noting that assault in the first degree requires a specific intent to inflictgreat bodily harm). The State must also prove intent, which is established when a person acts with the objective or purpose to accomplish a resultwhich constitutes a crime. RCW 9A.36.011; RCW 9A.08.010. Generally, intent to commit a crime may be inferred when the defendant's conduct and the surrounding circumstances indicate such an intent as a matterof logical probability. State v. Vasquez, 178 Wn.2d 1, 8, 309 P.3d 318 (2013). The
same istruewith the intentto inflictgreatbodily harm—all ofthe details ofthe case may indicate intent, including the manner and act of inflicting the wound, and also the nature ofthe relationship and any prior threats. State v. Ferreira, 69Wn. App. 465, 468-69, 850 P.2d 541 (1993). 

### Rosales-Contreras argues that the evidence here did not establish intent, because he struck Dimas only once. He points to two Washington cases where the evidence indicated intentto inflictgreat bodily harm. See State v. Pierre, 108 Wn. App. 378, 385-86, 31 P.3d 1207 (2001) (defendant was part of a group that kicked and stomped on the victim's head relentlessly, causing permanent brain 

### damage); State v. Alcantar-Maldonado, 184 Wn. App. 215, 220, 340 P.3d 859 (2014) (defendant hitthe victim in the face with a gun, pushed him into a door, kicked him, and struck him in the face). Rosales-Contreras suggests that these 

### cases—and cases from otherjurisdictions—demonstrate that when a defendant did not use a weapon to effect the assault, intent was established by repeated 

### blows against an unresisting victim. The inference from the argument is that aNo. 72911-0-1/6 single blow is necessarily insufficientproofofintentto inflictgreatbodily harm. We disagree. Neither Alcantar-Maldanado nor Pierre announced a bright line rule requiring the defendant to strike multiple blows. Instead, the court in both cases analyzed the specific facts of the case to conclude that there was sufficient evidence ofintent. Alcantar-Maldonado, 184Wn. App. at 225-26; Pierre, 108Wn. App. at 385-86. And, most ofthe out-of-state cases that Rosales-Contreras cites involved crimes requiring a differentspecific intentthan the one here: eithermalice
or intentto kill. See, e.g.. People v. Spring, 153 Cal. App. 3d 1199,1204, 200 Cal. Rptr. 849 (1984) (malice); McAndrews v. People. 71 Colo. 542, 548-49, 208 P. 486 (1922) (malice); Peoplev. Mighell, 254 III. 53, 59, 98 N.E. 236 (1912) (intentto kill); Nunn v. State. 601 N.E.2d 334, 339 (1992) (intentto kill); State v. Lang, 309 N.C. 

### 512, 524-25, 308 S.E.2d 317 (1983) (malice); Commonwealth v. Thomas, 527 Pa. 511,513, 594 A.2d 300 (1991) (malice). Thus, they offerlittleguidance as to what evidence is sufficient to prove intent to inflictgreat bodily harm. The remaining
cases he relies upon recognize that whether intent to inflictgreat bodily harm is 

### established depends on the facts ofeach case. See, e.g., State v. Gardner, 522 S.W.2d 323, 324 (Mo. Ct. App. 1975) (looking at the facts ofthe case); Flournov
v. State. 124 Tex. Crim. 395, 396, 63 S.W.2d 558 (1933) (looking at the facts of the case). Instead of supporting an argument that a single blow is insufficient to show intent, these cases demonstrate that intent is a fact specific inquiry. 

### And, the facts of this case allow a jury to conclude that Rosales-Contreras 

### possessed the requisite intent when he struck Dimas. Jacob, who witnessed theNo. 72911-0-1/7
altercation, testified that he saw Rosales-Contreras raise his right hand and strike Dimas inthe head. In the moments leading up to the punch, Rosales-Contreras
was furious. He was yelling, his face was tensed up, his eyebrows were furrowed, and his arms were crossed. He told Dimas to getoutofthewaywhen she stepped between him and Emilio. When Dimas refused to move, Rosales-Contreras again 

### told her to get out ofthe way. He specificallythreatened her," 'Move or I'm going to hityou.'" When Dimas stood her ground, Rosales-Contreras followed through with this threat, punching her inthe eye. The blow was intentional. The force required to inflictthe injury Dimas suffered is indicative of the 

### magnitude ofharm Rosales-Contreras intended. All Dimas can remember ofthe punch was seeing a bright flash of light, feeling something dripping from her eye, 

### and being inunbearable pain. She has a gap in her memory between the time of the punch and looking at herself inthe bathroom mirror—she cannot recall how 

### she got from the kitchen to the bathroom. Dimas eventually lost hervision inthat eye. Dr. Daniel Selove, an expert witness in forensic pathology, testified that moderate to severe force was required to inflictDimas's injury. In differentiating between moderate and severe force, he explained that moderate force would not
cause loss of consciousness, whereas severe force would be akin to a "knock-out 

### punch." The fact that Dimas had no memory of what happened between the flash of light and standing in the bathroom suggests that she momentarily lost consciousness. Viewing this evidence inthe lightmost favorable to the State, a rational trier of fact could have found that Rosales-Contreras intended to inflict great bodily harm on Dimas.No. 72911-0-1/8
We hold that sufficient evidence supports Rosales-Contreras's conviction for firstdegree assault.

II. Ineffective Assistance of Counsel In a statementofadditional grounds, Rosales-Contreras arguesthathis trial attorney provided ineffective assistance on multiple occasions. He claims that his 

### attorney failed to obtain phone and Facebook (social media website) records that would support his theory that Dimas fabricated this assault to get revenge on Rosales-Contreras for having a new girlfriend. And, he claims that his attorney failed to have ER 404(b) evidence pertaining to an incident on December6, 2006 excluded. Rosales-Contreras further asserts that his attorney refused to argue an involuntary intoxication defense. And, he argues that his attorney failed to seek a lesser included offense instruction. To demonstrate ineffective assistance of counsel, a defendant must first show that counsel's representation was deficient, inthat it fell below an objective standard of reasonableness. State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We presumethatcounsel's representation was effective. State
v. Thomas. 109 Wn.2d 222, 226, 743 P.2d 816 (1987). The defendant has the burden to show deficient representation based on the record. McFarland, 127 Wn.2d at 335. A defendant must also show that counsel's deficient performance prejudicedthe defendant, inthatthere is a reasonable probabilitythatthe outcome ofthe proceeding would have been different but for counsel's errors. jd_, at 334- 35.No. 72911-0-1/9
When counsel's actions can be characterized as legitimate trial strategy or tactics, performance is not deficient. Statev. Kvllo, 166Wn.2d 856, 863, 215 P.3d 177 (2009). Whether to present a certain defense or request a lesser included offense instruction aretactical decisions made by counsel. See State v. Grier. 171 Wn.2d 17, 39, 246 P.3d 1260 (2011); In re Pers. Restraint ofWoods, 154 Wn.2d 400, 420-21,114 P.3d 607 (2005). Therefore, whetherto presentthe involuntary 

### intoxication defense or request a lesser included instruction were both tactical decisions. There is no evidence in the record that Rosales-Contreras went to the 

### dentist and received sedatives on the day of the assault, as he claims would 

### support an involuntary intoxication defense. Norare there any facts surrounding Rosales-Contreras's conversations with his attorney to suggest that she refused 

### to follow his wishes indefending the case or requesting a lesserincluded offense instruction. Without this evidence in the record, Rosales-Contreras has failed to meet his burden ofshowing deficient representation. 

### Rosales-Contreras also argues that his trial attorney's performance was deficientbecause shefailed to have ER 404(b) evidence relating to an incidenton 

### December 6, 2006 excluded. The only ER 404(b) evidence that the trial court 

### allowed was an incident during the spring of 2006. The trial court specifically excluded ER 404(b) evidence about the December 6, 2006 incident. Therefore, Rosales-Contreras hasfailed to showthathis attorney's performancewas deficient 

### in this regard. We conclude that Rosales-Contreras did not receive ineffective assistance ofcounsel on these bases.No. 72911-0-1/10 Lastly, Rosales-Contreras asserts that his trial attorney should have obtained evidence of Dimas's phone records and Facebook communications to support his theory ofthe case. He argues that this evidence would have shown that Dimas fabricated the assault because he refused to leave his girlfriend and reconcile with Dimas. Rosales-Contreras contends that his attorney should have sent a subpoena duces tecum to the phone company and Facebook instead of Dimas herself. He also notes that the subpoena duces tecum counsel did send failed to inform Dimas of her right to object. Rosales-Contreras's trial counsel asked the State to assist in obtaining 

### Dimas's phone records. The State agreed, but its efforts were ultimately unsuccessful. Consequently, Rosales-Contreras's attorney served a subpoena 

### duces tecum on Dimas on August 25, 2014. Itinstructed Dimas to produce all Facebook or other recorded communications with Rubi Cardenas1 and allcopies of her phone records between April 2, 2008 and December 31, 2009. Dimas did not comply. Then, Rosales-Contreras's attorney moved to dismiss the case 

### pursuant to CrR 8.3, arguing that the State committed misconduct by failing to obtain Dimas's phone records. Thetrialcourtdeniedthis motion, becausedefense counsel should have known some time earlier that she needed to obtain the 

### records herself. And, the courtrecognized thatthe subpoenaduces tecum did not complywithcourt rules, because it failed to informDimas ofher rights. 

### Trialcounsel has a duty to investigatethe case. Statev. Jones. 183 Wn.2d 327, 339, 352 P.3d 776 (2015). Rosales-Contreras's attorney did not investigate Cardenas was Rosales-Contreras's new girlfriend.

10No. 72911-0-1/11
the phone and Facebook records when it became clear that the State could not obtain them, even though the State suggested several other avenues counsel could pursue. She also failed to follow court rules by not notifying Dimas of her right to objectto the subpoena duces tecum. See CR45. Becausethe subpoena duces tecum did not advise Dimas that she could object, the court refused to enforce it. Thus, these errors likelyconstituted deficientperformance. However, Rosales-Contreras has not shown that his attorney's deficient 

### performance was prejudicial. The record does not contain the phone and Facebook records in question. Without knowing what, ifanything, these records would have established, it is impossible to conclude that the records would have changed the outcome ofthe case. 

### Additionally, Rosales-Contreras's attorney was still able to present this 

### theory of the case. Dimas testified that shefound out that Rosales-Contreras had
a new girlfriend in February 2009. She said that she spoke to this woman on the phone when she called Rosales-Contreras aboutthe divorce papers. During her closing argument, defense counsel relied heavily on this event, stating, 

### [T]heseminal eventthat reallytriggered [Dimas reporting the assault] was when [Rosales-Contreras's] girlfriend picked upthephonewhen she called down to Mexico aboutthe divorce. Before then they had 

### left - [Rosales-Contreras] and her had separated for longperiods of time, for months at a time, and he would always come back. This time, though, she found out that he had a new girlfriend. That was 

### the seminal event that got her to march down to that police station and reportthat a crime had been committed. 

### And, counsel supported this theory by attacking Dimas's credibility, arguing that Dimas said whatever she needed to say to make Rosales-Contreras seem like a

11No. 72911-0-1/12



### monster. She confronted Dimas with her previous statements to the police and the defense, in which she did not include the same details about which she testified. And, she attempted to show that Jacob and Emilio were biased 

### witnesses, whose stories had changed because they were trying to help their mother. Dimas, however, explained that when she discovered that Rosales

### Contreras had a new girlfriend, she was relieved, not jealous. She felt safer knowing that her family would no longer be Rosales-Contreras's focus. She testified that she decided to reportthe assaultinMarch 2009, because shewanted to begin moving on with her life and start healing. Thus, thejury heard both sides ofthis argument. And, the jury found Rosales-Contreras guilty, indicating that it believed Dimas. Therefore, while counsel likely erred by failing to investigate potentially relevant evidence, this errorwas not prejudicial. We hold that she did not provide ineffective assistance ofcounsel.

III. Challenge for Cause In his statementofadditional grounds, Rosales-Contreras also asserts that the trial court erred by denying his challenge to removejuror45 for cause. During voir dire, juror45 indicated that he would lean toward believing that Rosales-Contreras was guilty due to the violence involved, but he would wait until all the facts were presented to make a decision. Rosales-Contreras then asked thatjuror 45 be removed for cause. The court reminded the juror that RosalesContreras was not guilty at that point and would remain not guilty until the State

12No. 72911-0-1/13 proved beyond a reasonable doubt that he is guilty. The court asked ifthejuror could accept this instruction, and the juror replied, "Yes." And, the court asked, "Can you be fair and impartial, wait for the end of the case before you make a decision inthat regard?" Juror45 replied, "Absolutely." As a result, the trial court denied Rosales-Contreras's request to remove the juror for cause. RosalesContreras later used a peremptory challenge to excusejuror45. This courtreviews a trial court's denial of a challengefor causefor manifest abuse ofdiscretion. State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190(1991). A juror's equivocal answers alone do not require the juror to be removed when 

### challenged forcause. Id. at 839. Instead, the relevantquestion iswhethera juror with preconceived ideas can set them aside. Id. The trial court is in the best 

### position to observe a juror's demeanor and determine their ability to be fair and impartial, Jd, 

### Here, while juror 45 at first expressed that he would have difficulty presuming that Rosales-Contreras was innocent, he later stated that he would absolutely be fair and impartial. Becausethetrial court was inthe bestposition to 

### judgewhetherjuror 45 could be impartial, we deferto the trialcourt's judgmenton this issue. Moreover, Rosales-Contreras exercised a peremptory challenge to 

### remove this juror, which cured any error. See Statev. Latham, 100Wn.2d 59, 64, 667 P.2d 56 (1983) (noting that use of a peremptory challenge to remove a juror who should have been removed for cause cures the error). Rosales-Contreras 

### has notdemonstrated prejudicethrough theforced use of a peremptorychallenge. 

### See id\ (where the juror isexcusedthrough a peremptory challenge, the defendant

13No. 72911-0-1/14

mustshowthe use ofthe peremptory challenge was prejudicial). We hold thatthe trial court did not err indenying the requestto removejuror45 for cause. We affirm.

WE CONCUR:



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