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 

## DIVISIONONE % oSr. 

# UNPUBLISHEDOPINION ~ 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 thatthe trial court erred by not instructing thejury 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 ofOctober2, 2011, six co-workers, Tim Lankhaar, Brian Skywalker, Nicholas Fritzberg, Patrick Malone, Jordan Slagle, and James Allen
were dining at a Jack inthe Box restaurant in Marysville. Cory Mehler, who was dating Lankhaar's sister, was also dining withthem.No. 68311-0/2 

### At approximately 7:30 p.m., Raymond Atchison, while brandishing a 

### pocketknife, approached Mehler. Mehler recalled he was eating whenAtchison
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 Mehlertried 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 approachedhim with the knife. Lankhaartestified that hefelt threatened by 

### seeing theknife and thelook inAtchison's eyes. Heyelled, "Areyou 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 toMehler and put afoldout knife on Mehler's chest and pointit 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 Atchisonwalking toward Mehlerwith 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 aNo. 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 pointthe knife at Mehler's 

### stomach in a threatening manner, he testified that Atchison pointing a knife at Lankhaarfrom a foot away "wasn'treally threatening, Iguess." 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 thatAtchison "made a movement backtowards" 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 backpassenger seatwhereAtchison was sitting at the time of the arrest. The knife had a blade three and a halfinches in length, halfserrated 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 offourth degree assault and the lesser included offense ofunlawful display of a weapon. The trial court rejected both 

### requests, concluding thattheevidence did not supportaninferencethatonlythe lesser offenses were committed to the exclusion ofsecond degree assault with a

-3-No. 68311-0/4 deadly weapon. The jury found Atchison guilty on both counts, including a special verdictthat 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 ofacceptable choices, given the 

### facts and theapplicable legal standard.3 Acourtbases its decision onuntenable grounds ifthat court applies the wrong legal standard or relies on unsupported facts.4 Analysis Atchison contends that the trial court erred by failing to instruct thejury on the lesser degree offense ofassault inthe 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.



### 1State v. Walker, 136Wn.2d 767, 771-72, 966 P.2d 883 (1998). 2State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). 3Rohrich, 149 Wn.2d at 654. 4Rohrich, 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 inferiorthereto, or ofan attemptto committhe offense." One crime is inferior indegree to anotherwhen 

### (1) the statutes for both the charged offense and the proposed inferior degree offense "proscribe but one offense"; (2) the informationcharges an offense that is divided intodegrees, 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 ofthe test, while the third 

### factor entails a factual inquiry.6 RCW 10.61.003 provides that a defendant may be convicted of a lesserdegree offense, and here, becausefourthdegree assault 

### is aninferiordegreetoseconddegree assault,7thelegalcomponentis satisfied. To satisfy the factual component, "substantial evidence in the record 

### [must] support[] a rational inference that the defendantcommitted onlythe lesser included or inferior degree offense to the exclusion of the greater offense." While the evidence is viewed inthe light most favorable to the defendant, it must

5State 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 at461.No. 68311-0/6 "affirmatively establish the defendant's theory ofthe case—it is not enough that 

### thejurymightdisbelievetheevidencepointingtoguilt."9 As charged and tried, the only difference between second degree assault 

### and fourth degree assault was the use of a knifeas 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 conflictedas 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 fromthreatening 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.

9Fernandez-Medina, 141 Wn.2d at 456 (citingState 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 orsubstantial bodily harm." Herethejury concludedthat theknife 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 recorddoes 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 fourthdegree assaultoccurred. 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 greateroffense (thelegal 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 

## offenseofseconddegree assaultwith adeadlyweapon.11 So, here, again, only thefactual prong is atissue. Thefactual prong ofthis testisthe same asthatfor

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 ofCrace, 157 Wn. App. 81, 107-08, 236 P.3d 914 

### (2010), rev'd on other grounds, In re Pers. Restraint ofCrace, 174Wn.2d 835, 280P.3d 1102(2012).No. 68311-0/8


### inferiordegree instructions,12 thatis, "'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 thatAtchison committed only the lesser crimes of

12 Fernandez-Medina, 141 Wn.2d at455. 

### 13 State v. Porter, 150Wn.2d 732, 737, 82 P.3d 234 (2004) (alteration in original) (quoting Fernandez-Medina, 141 Wn.2d at455). 

### 14 State v. Krup, 36Wn. 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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