FILED 


October 17,2013 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DMSION THREE 


STATE OF WASHINGTON, ) 

) No. 30630-5-III 

Respondent, ) (consolidated with 

) No. 31530-4-III) 

v. ) 

) 

DANIEL FARIAS, ) 

) UNPUBLISHED OPINION 

Appellant. ) 

SIDDOWAY, J. - Daniel Farias was convicted of a first degree assault ofhis 

mother. He argues on appeal that he was denied due process and the right to present a 

defense when the trial court refused to instruct the jury on the potential relevance of 

voluntary intoxication to the element ofintent. Mr. Farias has no recollection ofthe 

assault, however, and can offer no direct or medical evidence ofhis level ofintoxication 

or its effect on him at the time the assault occurred. At best, he presented evidence ofthe 

possibility that he consumed enough alcohol to have rendered him too intoxicated to form 

the intent to inflict great bodily harm. 

Where there is no evidence that a defendant was incapable offorming the required 

intent but only the possibility, the proper basis for submitting that possibility to the jury is 
Nos. 30630-5-111; 31530-4-111 

State v. Farias 

with instruction and argument on the State's burden of proof. The burden of proof was 

instructed and argued here. We find no error and affirm. 

FACTS AND PROCEDURAL BACKGROUND 

On the afternoon of January 3, 2011, Daniel Farias, an admitted alcoholic who had 

just completed a year of outpatient treatment for his addiction, started drinking around 

3 p.m. while running errands with his girl friend. He figured he had been doing well and 

could have just one beer. He bought a 40-ounce bottle of beer and drank it fast. He then 

bought another 40-ounce bottle and drank most of that on the way to the home of his 

sister, Cecilia Williams, where he and his girl friend planned to watch movies with Ms. 

Williams and her children. Upon arrival at Ms. Williams's home, he sat in the car to 

finish the beer before going inside. Mr. Farias would later testify to only fuzzy memories 

from that point on. 

He did not stay long at his sister'S; he left, without his girl friend, to run an errand. 

He was later dropped off at the home of his nephew, Martin. He might have arrived at 

Martin's house with beer. He stayed there for a few hours, and then, at about 11 p.m., 

Martin drove him to the grocery store to buy more beer. 

The night manager at the grocery store, concluding that Mr. Farias was drunk, 

refused to sell him alcohol. The manager would later testify that Mr. Farias was being 

obnoxious; he smelled of alcohol and, when told he could not buy beer, he shouted and 

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Nos. 30630-5-III; 3 I530-4-II1 

State v. Farias 

made threats. After he left, the manager called the police to report the incident and Mr. 

Farias's condition. 

Martin then drove Mr. Farias to a gas station where Mr. Farias was able to 

purchase a 12-pack of beer. As Mr. Farias came out ofthe station, he encountered two 

police officers responding to the disturbance call from the grocery manager. They spoke 

to him about the call and satisfied themselves that Mr. Farias was not driving. One of the 

officers would later testify that Mr. Farias was acting "slightly animated," his voice was 

slurred, and he smelled of alcohol, from which the officer concluded that he was 

intoxicated. Report ofProceedings (RP) at 386. Mr. Farias was able to understand and 

answer their questions, though, was not staggering or stumbling, and the officers watched 

him walk to his nephew's vehicle, open the door, and get into the passenger's side 

without assistance. The officer who later testified described Mr. Farias as cooperative 

throughout their interaction. 

Martin evidently dropped Mr. Farias off at Ms. Williams's house, but the family 

had long since finished watching movies. Ms. Williams stopped him as he entered, drunk 

and carrying a 12-pack, and told him he could not stay. She drove him back to the 

mobile home oftheir mother, Maria Farias, with whom Mr. Farias had been living for 

about eight months. 

Mr. Farias later testified that upon arriving home, he went inside and turned on the 

television. According to him, his mother opened her bedroom door and asked ifhe was 

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Nos. 30630-5-III; 31530-4-III 

State v. Farias 

staying the night, which he said he was. She commented on the fact that he was drinking, 

to which he responded, '''Yeah, it's alright. It'll be okay.'" RP at 434. When he awoke 

the following day, about noon, all ofthe beer was gone. 

At about 3 p.m. the following day Ms. Williams arrived at the mobile home, 

having learned that Ms. Farias did not report for work at her fruit sorting job that 

morning, which was unusual. Ms. Williams was concerned that her brother might have 

hurt their mother; he had done it once before. When she told Mr. Farias that she wanted 

to see her mom, Mr. Farias said that she was sleeping. Ms. Williams demanded that Mr. 

Farias wake their mother and send her out, or she would call the police. Mr. Farias 

ignored her and went back inside. 

Ms. Farias called the police, who arrived shortly thereafter. They entered the 

mobile home despite Mr. Farias's insistence that Ms. Farias was asleep and discovered 

her in the bedroom ofthe mobile home, lying critically injured under a pile of blankets. 

Later investigation revealed blood spatters on the wall outside the bedroom, bloodstained 

clothing, a bloodied mop and towel, and other items. It was apparent that an effort had 

been made to clean blood from the hallway floor. 

Ms. Farias was transported to the emergency room, unconscious. She was 

admitted in critical condition with multiple organ systems malfunctioning, obvious 

external injuries including bruising and fractured face bones, and possible internal organ 

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Nos. 30630-5-111; 31530-4-111 

State v. Farias 

lI\junes. Due to the extent of her injuries, Ms. Farias was airlifted to Harborview Medical 

Center in Seattle. 

Detective Dave Helvey interviewed Mr. Farias at the sheriffs office. During a 

break after the first of two interviews, Mr. Farias told the detective, "'I think 1did this to 

my mom.'" RP at 109. Detective Helvey noted that Mr. Farias's right hand was red and 

appeared scratched. Mr. Farias acknowledged the only people who had been in the house 

the previous night were him and his mother. Mr. Farias told police he did not hurt his 

mother, but had no explanation for her injuries. 

The State charged Mr. Farias with first degree assault with special allegations of 

aggravating circumstances. 

At trial, Mr. Farias asked that the jury be instructed on voluntary intoxication and 

offered two proposed instructions. The court declined to provide either, explaining, 

The Court is familiar with the elements that are necessary, and primarily 

the third element that affects the ability to acquire the proper mental state. 

There was really only testimony that he'd had two 40-ouncers, seven beers 

in this particular matter. He also testified that he had some alcohol at his 

nephew's, didn't testify as to how much, and the officers, at about 

midnight, although he apparently ran into some trouble at Safeway, the 

officers at midnight testified that, being experienced officers in people with 

intoxication, that he was intoxicated, but he wasn't exhibiting the signs of 

being overly intoxicated .... Defendant himselftestified that he 

remembered all of those contacts. The Defendant testified that he 

remembered going home. The Defendant testified that he remembered his 

mother coming to the door and saying good night to him, and then the 

Defendant testified he went to the couch and fell asleep. 

RP at 537-38. 

5 

Nos. 30630-5-III; 31530-4-III 

State v. Farias 

In closing argument, Mr. Farias's lawyer made the following argument from the 

court's instructions, without objection: 

[I]fyou get to the point where you believe that Daniel did this, ifyou get to 

that point, you have to determine whether or not he committed this offense 

with the intent, a specific intent, a term of art, a legal term, if he intended to 

do great bodily harm. It's not enough for you to go back in there and say, 

"He did it. He's guilty." The State has to prove beyond a reasonable doubt 

to all of you unanimously that Daniel intended to inflict the harm on his 

mother that she suffered. You have to find that he had in his mind that, 

"I'm going to go down that hall, I'm going to bust open my Mom's door, 

and I'm going to almost kill her." The State hasn't proven that. Even if 

you believe the State has proved that she did it (sic), the State has not 

proven to you that he intended the harm that his mom suffered. 

Take into consideration his state of mind. Take into consideration 

what he had been doing for the hours, the day before his mom was 

assaulted. Take all that into account. Take into account the description of 

his demeanor, how he acted. Take into account the witnesses' testimony 

and put the State to its burden of proof on the issue of intent. It's just not 

an automatic foregone conclusion that just because his poor mother 

suffered these injuries that he had any intent, ifyou find, again, if you find 

that he did this, to inflict that type of harm. That's what makes this assault 

in the first degree. The highest level of assault that there is in this country. 

So that's an important issue for all of you to discuss. 

RP at 593-94 (second alteration in original). 

Mr. Farias was found guilty as charged, including all of the aggravating 

circumstances alleged by the State. He appeals. 

ANALYSIS 

Mr. Farias's appellate lawyer's brief raises a single issue: it challenges the trial 

court's refusal to give either ofhis proposed instructions on voluntary intoxication. 

6 

Nos. 30630-5-111; 31530-4-111 

State v. Farias 

RCW 9A.16.090, 1 provides: 

No act committed by a person while in a state of voluntary intoxication 

shall be deemed less criminal by reason of his or her condition, but 

whenever the actual existence of any particular mental state is a necessary 

element to constitute a particular species or degree of crime, the fact of his 

or her intoxication may be taken into consideration in determining such 

mental state. 

"[I]ntoxication is not a 'defense' to a crime." State v. Coates, 107 Wn.2d 882, 891, 735 

P.2d 64 (1987). It may raise a reasonable doubt as to the mental state element ofthe 

offense. Id. Where the evidence raises an issue as to the effect of a defendant's 

intoxication on his ability to formulate the requisite mental state, the statute "describes 

the manner in which [that] type of evidence is to be employed, in much the same way as 

neutral instructions describe the use of inferences or circumstantial evidence." Id. at 890. 

Each side is entitled to have the trial court instruct upon its theory ofthe case if 

there is evidence to support the theory; on the other hand, it is prejudicial error to submit 

an issue to the jury when there is not substantial evidence concerning it. State v. Hughes, 

106 Wn.2d 176, 191, 721 P.2d 902 (1986). Where a defendant seeks an instruction 

explaining how the jury may consider evidence of voluntary intoxication as bearing on 

intent, it is well settled that he or she must show (1) the charged crime has a specific 

mental state, (2) there is substantial evidence the defendant was drinking, and (3) 

1 We quote the current version ofRCW 9A.16.090, which was amended by Laws 

of2011, chapter 336, section 355 to make the language gender neutral. 

7 

Nos. 30630-5-111; 31530-4-111 

State v. Farias 

evidence that the defendant's drinking affected his or her ability to fonn the required 

mental state. State v. Gabryschak, 83 Wn. App. 249, 252, 921 P.2d 549 (1996); State v. 

Everybodytalksabout, 145 Wn.2d 456, 479,39 P.3d 294 (2002); State v. Gallegos, 65 

Wn. App. 230, 238, 828 P.2d 37 (1992). Evidence of drinking alone is insufficient; there 

must be substantial evidence ofthe alcohol's effects on the defendant's mind or body. 

Gabryschak, 83 Wn. App. at 253. "Put another way, the evidence must reasonably and 

logically connect the defendant's intoxication with the asserted inability to fonn the 

required level of culpability to commit the crime charged." Id. at 252-53. 

When considering whether a proposed jury instruction is supported by the 

evidence, the trial court must examine the evidence and draw all reasonable inferences in 

the light most favorable to the requesting party. State v. Hanson, 59 Wn. App. 651, 656­

57, 800 P.2d 1124 (1990). We review a trial court's refusal to give a voluntary 

intoxication instruction for abuse of discretion. State v. Priest, 100 Wn. App. 451, 454, 

997 P.2d 452 (2000). 

One problem with giving the voluntary intoxication instruction in this case is that 

the jury was presented with no evidence as to the level ofMr. Farias's intoxication at the 

time Ms. Farias was assaulted. Fifteen hours passed between the time Ms. Williams 

dropped him off at the mobile home and the time Ms. Farias was discovered injured the 

following day. At the time ofMr. Farias's encounter with police at the gas station late in 

the evening on January 3, he had been able to consummate the purchase of beer, was able 

8 

Nos. 30630-5-III; 31530-4-111 

State v. Farias 

to understand and respond to the officers' questions, and walked without apparent 

impairment to his nephew's car. It is true that he had another 12 cans of beer with him 

when dropped off at his mother's mobile home and there is circumstantial evidence he 

consumed them sometime between midnight and noon the following day. But there is no 

evidence he drank any ofthe 12 beers before assaulting his mother. He might have been 

no more intoxicated at the time of the assault than he was during his encounter with 

police officers at the gas station; he might have been even less intoxicated. 

Another problem is that given the unknown time ofthe assault, the unknown level 

ofMr. Farias's intoxication at that time, and the fact that neither Mr. Farias nor his 

mother could recall how the assault happened, there is no evidence bearing on whether or 

how Mr. Farias's drinking affected his ability to form the intent to inflict great bodily 

harm, the mental state required for assault in the first degree. The fact that he cannot 

recall the assault is not evidence that he did not intend to inflict great bodily harm. See 

State v. Thomas, 123 Wn. App. 771, 780-81, 98 P.3d 1258 (2004) (trial court properly 

excluded expert testimony that defendant had experienced an alcoholic blackout leaving 

her with no recollection of an assault because the blackout is not evidence that she could 

not form the intent to commit assault in the first degree). 

The court's instructions informed the jury that to convict Mr. Farias of first degree 

assault, one ofthe elements that the State must prove beyond a reasonable doubt was that 

in assaulting Ms. Farias, "the Defendant acted with intent to inflict great bodily harm." 

9 

Nos. 30630-5-III; 3 1 530-4-III 

State v. Farias 

Clerk's Papers (CP) at 126. Mr. Farias's lawyer was able to argue, and did argue, that the 

jury should find reasonable doubt as to the element of intent. For the court to have given 

a voluntary intoxication instruction, though, would have been to invite the jury to 

speculate about Mr. Farias's condition and mental culpability at a time for which the jury 

had no evidence. 

The well settled criteria for giving the voluntary intoxication instruction were not 

demonstrated by Mr. Farias. The trial court properly refused to give it. 

STATEMENT OF ADDITIONAL GROUNDS 

In an untimely pro se notice of appeal, Mr. Farias assigns error to two related 

matters: the trial court's decision to admit evidence ofhis earlier assault of his mother 

and ineffective assistance of appellate counsel in failing to challenge the admission of 

that evidence. Mr. Farias is not entitled to two appeals but he is entitled to file a pro se 

statement of additional grounds (SAG) identifYing matters that he believes were not 

adequately addressed by his lawyer's brief. In order to serve the ends ofjustice, we 

waive the applicable deadline and review his pro se notice of appeal as a SAG. 

Before trial, the State moved for a determination that the court would admit 

evidence that Mr. Farias assaulted his mother in May 2010. It contended that the 

evidence was admissible under ER 404(b) to establish the domestic violence aggravator it 

had charged, citing State v. Baker, 162 Wn. App. 468, 259 P.3d 270 (holding that a prior 

assault of a victim of domestic violence was admissible to prove motive, absence of 

10 

Nos. 30630-5-111; 31530-4-111 

State v. Farias 

mistake, or accident, or to assist the jury in assessing the credibility of the victim), review 

denied, 173 Wn.2d 1004 (2011) and State v. Anderson, 42 Wn. App. 659, 713 P.2d 145 

(1986) (where defendant claimed to be too intoxicated to form the required intent, 

evidence that he had earlier committed an identical crime is admissible to prove intent). 

Mr. Farias contends that admitting evidence of his prior assault substantially and 

unfairly prejudiced him, implying that in weighing prejudice against probative value 

under ER 403 the trial court underestimated the prejudicial impact ofthe evidence. 

Under ER 404(b), "[ e ]vidence of other crimes, wrongs, or acts is not admissible to 

prove the character of a person in order to show action in conformity therewith." Such 

evidence may be admissible "for other purposes, such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 

404(b). '" It is undoubtedly the rule that evidence of quarrels between the victim and the 

defendant preceding a crime, and evidence ofthreats by the defendant, are probative 

upon the question ofthe defendant's intent. '" State v. Powell, 126 Wn.2d 244, 261, 893 

P.2d 615 (1995) (quoting State v. Parr, 93 Wn.2d 95,102,606 P.2d 263 (1980)). 

Before admitting evidence under ER 404(b) a trial court "must (1) find by a 

preponderance ofthe evidence that the misconduct occurred, (2) identify the purpose for 

which the evidence is sought to be introduced, (3) determine whether the evidence is 

relevant to prove an element of the crime charged, and (4) weigh the probative value 

11 

Nos. 30630-5-111; 31530-4-111 

State v. Farias 

against the prejudicial effect." State v. Vy Thang, 145 Wn.2d 630,642,41 P.3d 1159 

(2002).. 

The court considered the State's motions in limine at a pretrial hearing. In support 

of admitting evidence of the prior assault, the State offered the testimony ofMs. Williams 

that some eight months before the assault for which Mr. Farias was being tried, she had 

traveled to her mother's mobile home after repeatedly calling and asking to speak to her 

mother, only to be told by Mr. Farias that their mother was sleeping. Upon arriving at the 

mobile home Ms. Williams observed shattered glass on the dining room floor. Mr. Farias 

was sweeping the floor and claimed that a plate had fallen and broke. 

Ms. Farias was standing outside her bedroom crying, however, and told Ms. 

Williams, '''Daniel tried to kill me.'" CP at 50. Ms. Farias was wearing an apron whose 

buttons were tom off and her glasses were crooked. The mattress in her bedroom was 

flipped and the doorframe to the room was cracked. When Ms. Williams asked her what 

had happened, Ms. Farias said that Mr. Farias had gotten in an argument with his girl 

friend and was upset. Mr. Farias interrupted, telling his mother to shut up, saying that she 

was crazy, and glaring at her in an intimidating manner. Ms. Williams told her mother to 

gather some belongings and took Ms. Farias to stay at the Williams home. 

The trial court ruled that the prior assault was relevant to establish the domestic 

violence aggravating factor and to establish motive and absence of mistake or accident. 

Applying the balancing required by ER 403, the court found the evidence quite probative 

12 

Nos. 30630-5-111; 31530-4-111 

State v. Farias 

in light of Mr. Farias's expected defense that he was intoxicated and acted in an 

uncontrolled and unintentional manner, stating, "I think it is probative as to lack of 

mistake. I think it's probative as to motive, and I think it's more probative than it is 

prejudicial .... So the Court would allow the testimony." RP at 53. 

The decision to admit evidence under ER 404(b) is reviewed for an abuse of 

discretion. State v. De Vincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). A trial court 

abuses its discretion ifit fails to abide by the rule's requirements. State v. Foxhoven, 161 

Wn.2d 168,174,163 P.3d 786 (2007). Discretion is also abused ifit is exercised on 

untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12, 

26,482 P.2d 775 (1971). We review a trial court's balancing of the probative value of 

evidence against its prejudicial effect or potential to mislead under ER 403 "with a great 

deal of deference, using a 'manifest abuse of discretion' standard of review." State v. 

Luvene, 127 Wn.2d 690,706-07,903 P.2d 960 (1995). In reviewing for manifest abuse 

of discretion, we will affirm the trial court's decision unless no reasonable judge would 

have reached the same conclusion. Tatham v. Rogers, 170 Wn. App. 76, 106,283 P.3d 

583 (2012). 

Here, the trial court abided by the requirements of ER 404(b) in deciding whether 

to admit the evidence and came to a reasoned decision. It did not abuse its discretion in 

admitting the prior assault under ER 404(b). 

13 
Nos. 30630-5-III; 3 1 530-4-II1 

State v. Farias 

Mr. Farias makes a related assignment of error to what he claims was the 

ineffective assistance of his counsel in failing to raise this issue in his appeal. To 

establish ineffective assistance of counsel, Mr. Farias must show both that (1) defense 

counsel's representation was "deficient" and (2) the deficient representation prejudiced 

the defendant. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984). The failure to show either element ends our inquiry. State v. Grier, 171 Wn.2d 

17,33,246 PJd 1260 (2011). 

Mr. Farias's trial lawyer zealously resisted admission of evidence ofthe assault. 

He lost the argument after the trial court considered and addressed all ofthe matters 

required before ruling on the admissibility of evidence under ER 404(b). Given the 

applicable standard of review, appellate counsel could reasonably conclude that 

appealing the trial court's decision to admit the evidence was pointless. Appellate 

counsel is not ineffective where, as here, an appeal of the trial court's ruling would fail. 

State v. Nichols, 161 Wn.2d 1, 14-15, 162 P.3d 1122 (2007). 

Affirmed. 


A majority ofthe panel has determined that this opinion will not be printed in the 


14 

Nos. 30630-5-111; 31530-4-111 

State v. Farias 

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040. 

Siddoway, J. 

WE CONCUR: 

orsmo, C.J. 

Kulik, J. 

15