### FILED 

### October 17,2013 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DMSIONTHREE STATE OF WASHINGTON, 

### ) ) No. 30630-5-III Respondent, ) (consolidated with ) No. 31530-4-III) v. ) 

### ) DANIEL FARIAS, 

### ) ) UNPUBLISHED OPINION Appellant. ) SIDDOWAY, 

### J.

- DanielFarias was convicted ofa first degree assault ofhis mother. He argues on appeal that he was denied due process andthe rightto present a defense whenthe trial courtrefused to instructthejury onthe potential relevance of voluntary intoxicationto the element ofintent. 

### Mr. Fariashas no recollection ofthe assault, however, and can offerno direct or medical evidence ofhis level ofintoxication

orits effect onhim at thetimethe assault occurred. Atbest, he presented evidence ofthe possibility thathe consumed enough alcohol to have renderedhim too intoxicatedto form the intentto inflictgreatbodily harm. Wherethere is no evidencethat a defendant was incapable offorming therequired intentbutonlythe possibility, the properbasis for submitting thatpossibility to thejuryisNos. 30630-5-111; 31530-4-111 State v. Farias
with instruction and argument on the State's burden ofproof. The burden ofproofwas instructed and argued here. We find no error and affirm. FACTS AND PROCEDURAL BACKGROUND On the afternoon ofJanuary 3, 2011, Daniel Farias, an admitted alcoholic who had justcompleted a year ofoutpatient 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 havejustone beer. He bought a 40-ounce bottle ofbeer and drank it fast. He then bought another 40-ounce bottle and drank most ofthat on the way to the home ofhis 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 thatpoint on. He did not stay long at his sister'S; he left, without his girl friend, to run an errand. He was later dropped offat the home ofhis nephew, Martin. He might have arrived at Martin's house with beer. He stayedthere 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 atthe 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 ofalcohol and, when told he could not buy beer, he shouted and

2Nos. 30630-5-III; 3I530-4-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 ofbeer. 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 aboutthe call and satisfied themselves that Mr. Farias was not driving. One ofthe officers would later testify that Mr. Farias was acting "slightly animated," his voice was slurred, and he smelled ofalcohol, 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 officerwho latertestified described Mr. Farias as cooperative throughout their interaction. Martin evidently dropped Mr. Farias offat Ms. Williams's house, butthe 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 backto the mobile home oftheir mother, MariaFarias, with whom Mr. Farias had been living for about eight months. Mr. Farias latertestified thatupon arriving home, he went inside and turned on the television. Accordingto him, his mother opened herbedroom door and asked ifhewas 3Nos. 30630-5-III; 31530-4-III State 

### v. Farias staying the night, which he said he was. She commented onthe 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, aboutnoon, all ofthe beerwas gone. At about 3 p.m. the following day Ms. Williams arrived atthe mobile home, having learned that Ms. Farias did not report for work at her fruit sortingjobthat morning, which was unusual. Ms. Williams was concerned thatherbrothermight have hurt their mother; he had done it once before. When she told Mr. Farias that she wanted to see hermom, Mr. Farias said that she was sleeping. Ms. Williams demanded thatMr. Farias wake their mother and send her out, or she would call the police. Mr. Farias ignored her and wentback 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 ofblankets. 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 efforthad 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

4Nos. 30630-5-111; 31530-4-111 State v. Farias lI\junes. Due to the extent ofher injuries, Ms. Farias was airlifted to Harborview Medical Center in Seattle. Detective Dave Helvey interviewed Mr. Farias at the sheriffs office. During a break afterthe first oftwo interviews, Mr. Farias told the detective, 

### "'Ithink 

### 1 did 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. Attrial, Mr. Farias asked that thejurybe instructed on voluntary intoxication and offered two proposed instructions. The court declined to provide either, explaining, The Court is familiar withthe elements that are necessary, and primarily the third elementthat affects the ability to acquire the proper mental state. There was really only testimony thathe'd had two 40-ouncers, seven beers in this particular matter. He also testified that he had some alcohol at his nephew's, didn'ttestify 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, buthe wasn't exhibiting the signs of being overly intoxicated
.... Defendanthimselftestified that he remembered all ofthose contacts. The Defendant testified that he remembered going home. The Defendant testified that he remembered his mother comingto the door and saying good night to him, and then the Defendanttestified he wentto the couch and fell asleep. RP at 537-38. 5Nos. 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 thatpoint, you have to determine whether or not he committed this offense with the intent, a specific intent, a term ofart, a legal term, ifhe intended to do greatbodily harm. It's not enough for youto go back in there and say, "He did it. He's guilty." The State has to prove beyond a reasonable doubt to all ofyou unanimously thatDaniel intendedto inflictthe harm on his motherthat she suffered. You have to find that he had in his mind that, "I'mgoing 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'tproven that. Even if you believe the State has provedthat she did it (sic), the State has not proven to youthat he intended the harm that his mom suffered. Take into consideration his state ofmind. 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 accountthe witnesses' testimony and put the State to its burden ofproofonthe issue ofintent. It'sjustnot an automatic foregone conclusion thatjustbecausehis poormother suffered these injuries thathe had any intent, ifyou find, again, ifyou find that he did this, to inflict that type ofharm. That's what makes this assault in the first degree. The highest level ofassault that there is in this country. So that's an important issue for all ofyou to discuss. RP at 593-94 (second alteration in original). Mr. Farias was found guilty as charged, including all ofthe aggravating circumstances alleged by the State. He appeals. ANALYSIS Mr. Farias's appellate lawyer's briefraises a single issue: it challenges the trial court's refusal to give either ofhis proposed instructions on voluntary intoxication.



### 6Nos. 30630-5-111; 31530-4-111 State v. Farias
RCW 9A.16.090, 1provides: No act committedby a person while in a state ofvoluntary intoxication shall be deemed less criminal by reason ofhis or her condition, but whenever the actual existence ofany particular mental state is a necessary elementto constitute a particular species or degree ofcrime, the fact ofhis 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 ofa defendant's intoxication on his ability to formulate the requisite mental state, the statute "describes the manner in which [that] type ofevidence is to be employed, in much the same way as neutral instructions describe the use ofinferences 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 supportthe theory; on the other hand, it is prejudicial errorto submit

an issue to thejury 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 thejury may consider evidence ofvoluntary 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)

1We quote the current version ofRCW 9A.16.090, which was amended by Laws of2011, chapter 336, section 355 to make the language gender neutral. 7Nos. 30630-5-111; 31530-4-111 State 

### v. Farias
evidence thatthe 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 ofdrinking 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. "Putanother way, the evidence mustreasonably and logically connectthe defendant's intoxication with the asserted inability to fonn the required level ofculpability to committhe crime charged." 

### Id. at 252-53. When considering whether a proposedjury 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 requestingparty. 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 ofdiscretion. 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 thejurywaspresented with no evidence as to the level ofMr. Farias's intoxication at the time Ms. Farias was assaulted. Fifteen hours passed betweenthe time Ms. Williams dropped him offat the mobile home and the time Ms. Farias was discovered injured the following day. At the time ofMr. Farias's encounter with police atthe gas station late in the evening on January 3, he had been able to consummate the purchase ofbeer, was able 

### 8Nos. 30630-5-III; 31530-4-111 State 

### v. Farias

to understand and respond to the officers' questions, and walked without apparent impairmentto his nephew's car. It is true that he had another 12 cans ofbeerwith him when dropped offat his mother's mobile home and there is circumstantial evidence he consumed them sometime between midnight and noonthe following day. Butthere is no evidence he drank any ofthe 12 beers before assaulting his mother. He mighthave been

no more intoxicated at the time ofthe assaultthanhe was during his encounterwith police officers at the gas station; he might have been even less intoxicated. Anotherproblem is that giventhe unknown time ofthe assault, the unknown level ofMr. Farias's intoxication atthat time, and the fact that neither Mr. Farias nor his mother couldrecall howthe assault happened, there is no evidence bearing on whether or how Mr. Farias's drinking affected his ability to form the intentto inflict greatbodily 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 courtproperly excluded experttestimony that defendant had experienced an alcoholic blackout leaving herwith no recollection ofan 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 thejury that to convictMr. Farias offirst 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." 9Nos. 30630-5-III; 3 1 530-4-III State v. Farias
Clerk's Papers (CP) at 126. Mr. Farias's lawyerwas able to argue, and did argue, thatthe jury should find reasonable doubt as to the element ofintent. Forthe court to have given

a voluntary intoxication instruction, though, would have been to invite thejuryto speculate about Mr. Farias's condition and mental culpability at a time for which thejury had no evidence. The well settled criteria for giving the voluntary intoxication instruction were not demonstrated by Mr. Farias. Thetrial courtproperly refusedto give it. STATEMENT OF ADDITIONAL GROUNDS In an untimely pro se notice ofappeal, Mr. Farias assigns error to two related matters: the trial court's decision to admit evidence ofhis earlier assault ofhis mother and ineffective assistance ofappellate counsel in failing to challengethe admission of that evidence. Mr. Farias is not entitled to two appeals buthe is entitled to file a pro se statement ofadditional grounds (SAG) identifYing matters that he believes were not adequately addressed by his lawyer's brief. In order to serve the ends of justice, we waive the applicable deadline and review his pro se notice ofappeal as a SAG. Beforetrial, the State moved for a determination thatthe court would admit evidence thatMr. Farias assaulted his mother in May 2010. Itcontended thatthe evidence was admissible underER404(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 ofa victim ofdomestic violence was admissible to prove motive, absence of 10Nos. 30630-5-111; 31530-4-111 State v. Farias mistake, or accident, or to assist thejury in assessing the credibility ofthe 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 ofhis prior assault substantially and unfairly prejudiced him, implying that in weighing prejudice against probative value under ER403 the trial court underestimated the prejudicial impact ofthe evidence. Under ER404(b), "[e]vidence ofother crimes, wrongs, or acts is not admissible to prove the character ofa person in order to show action in conformity therewith." Such evidence may be admissible "for other purposes, such as proofofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake or accident." ER 404(b). '" 

### It is undoubtedly the rule that evidence ofquarrels betweenthe victim and the defendantpreceding 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 ER404(b) a trial court "must (1) find by a preponderance ofthe evidence that the misconduct occurred, (2) identify the purpose for whichthe evidence is soughtto be introduced, (3) determine whether the evidence is relevant to prove an element ofthe crime charged, and (4) weigh the probative value

11Nos. 30630-5-111; 31530-4-111 State 

### v. Farias againstthe 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 ofadmitting evidence ofthe prior assault, the State offered the testimony ofMs. Williams that some eight months beforethe assault for which Mr. Farias was being tried, she had traveledto hermother's mobile home afterrepeatedly calling and askingto speakto her mother, only to be toldby Mr. Farias that their mother was sleeping. Upon arriving atthe mobile homeMs. Williams observed shattered glass on the dining room floor. Mr. Farias

was sweepingthe floor and claimedthat a platehad fallen and broke. Ms. Farias was standing outside herbedroom crying, however, and told Ms. Williams, '''Danieltried to kill me.'" CP at 50. Ms. Farias was wearing an apronwhose buttons were tom offand her glasses were crooked. The mattress in herbedroom was flipped andthe 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 motherto shut up, saying that she

was crazy, and glaring at herin an intimidating manner. Ms. Williams told her mother to gather some belongings andtook Ms. Farias to stay at the Williams home. The trial courtruled thattheprior assault was relevantto establish the domestic violence aggravating factor and to establish motive and absence ofmistake oraccident. Applying the balancing required by ER403, the court found the evidence quite probative 12Nos. 30630-5-111; 31530-4-111 State v. Farias
in light ofMr. 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'sprobative 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 ER404(b) is reviewed for an abuse of discretion. State v. DeVincentis, 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 ofthe probative value of evidence against its prejudicial effect orpotential to mislead under ER403 "with a great deal ofdeference, using a 'manifest abuse ofdiscretion' standard ofreview." State v. Luvene, 127 Wn.2d 690,706-07,903 P.2d 960 (1995). In reviewing for manifest abuse ofdiscretion, we will affirm the trial court's decision unless no reasonablejudgewould have reached the same conclusion. Tatham v. Rogers, 170 Wn. App. 76, 106,283 P.3d 583 (2012). Here, the trial court abided bythe requirements ofER404(b) in deciding whether to admit the evidence and came to a reasoned decision. Itdid not abuse its discretion in admitting the prior assault under ER404(b).

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

Mr. Farias makes a related assignment oferrorto whathe claims was the ineffective assistance ofhis counsel in failing to raise this issue in his appeal. To establish ineffective assistance ofcounsel, Mr. Farias must showboththat (1) defense counsel'srepresentationwas "deficient" and (2) the deficient representation prejudiced the defendant. Stricklandv. 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 17,33,246PJd 1260 (2011). Mr. Farias'strial lawyer zealously resisted admission ofevidence ofthe assault. He lostthe argument after the trial court considered and addressed all ofthe matters required before ruling onthe admissibility ofevidence under ER404(b). Given the applicable standard ofreview, appellate counsel couldreasonably conclude that appealingthetrial court's decisionto admitthe evidence was pointless. Appellate counsel is not ineffective where, as here, an appeal ofthe 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 notbe printed in the

14Nos. 30630-5-111; 31530-4-111 State v. Farias Washington Appellate Reports but it will be filed for public record pursuantto RCW 2.06.040.

Siddoway, J. WE CONCUR:

orsmo, C.J.

Kulik, J.

15