Superior Court of Kitsap County. Superior Court Docket No. 91-1-00531-0. Date Filed In Superior Court: November 19, 1991. Superior Court Judge Signing: Leonard Kruse.
Morgan, J., Seinfeld, C.j., Houghton, A.c.j., concur
MORGAN, J. -- After a bench trial, the trial court found Huddleston guilty of five counts of first degree assault. We remand for further proceedings.
On the night of August 5, 1992, a number of men and women were drinking at the Red Rooster Tavern in Bremerton, Washington. About 1:00 a.m., three of the women, Katie Beinert, Jennifer Chiles and Margaret Dotson, went outside to use the pay phone. While standing on the sidewalk near the pay phone, they noticed three men, later identified as Kevin Huddleston, Darrell Miller, and Norman Gonzales, walking toward them. Miller and Gonzales were wearing baseball hats, while Huddleston
was wearing a blue "Gilligan" hat, so described because of its resemblance to a hat worn on the TV show, Gilligan's Island.
As the three men passed, Miller collided with Beinert. The women swore and yelled racial slurs. Miller yelled obscenities in return. Beinert then went to the door of the tavern and called to her husband for assistance.
Timothy Beinert, William Dulyea, Jonathan Anderson, Robert Mosley, Michael Tears and others came out of the bar. They faced Miller, who had Gonzales and Huddleston behind him. Dulyea and Miller argued, and the situation escalated into a brawl. When the brawl subsided, Beinert had been stabbed in the back and chest; Dulyea in the stomach; Tears in the rib cage and buttocks; and Mosley in the liver. Mosley has had recurrent problems and several surgeries.
According to the State's witnesses, Huddleston wielded the knife. Anderson said Huddleston lunged at him with a knife and hit him in the stomach; Huddleston failed, however, to break the skin. Beinert said Huddleston stabbed him, and Anderson said he saw Huddleston backing away from Beinert with knife in hand. Dulyea, Tears and Mosley were unable to identify the person who had a knife. Gonzalez testified that neither he nor Miller had wielded the knife, leaving an inference that Huddleston had.
The State charged Huddleston with five counts of first degree assault. It alleged assaults on Mosley, Beinert, Dulyea, Tears, and Anderson, respectively. It based each count on RCW 9A.36.011(1)(a), which provides:
A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm . . . assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death.
Before trial, the State served a witness list that did not include Gonzales. On September 17, 1991, two days before trial, the State left an amended witness list in defense
counsel's pick-up box in the prosecutor's office. The amended list included Gonzales, but it was not received by defense counsel before the trial started.
A bench trial commenced on September 19, 1991. Huddleston argued mistaken identity. He did not argue self defense or defense of others.
During trial, the State proposed to call Gonzales. Defense counsel objected on grounds Gonzales had not been timely endorsed as a State's witness. After noting that the defense was not claiming surprise with respect to the substance of Gonzales' testimony,*fn1 the trial court ruled that Gonzales could be called. The defense asked for time to conduct an interview, and the court granted that request.
At the end of the trial, the court rendered an oral opinion in which it rejected Huddleston's identity defense. It also discussed the phrase "great bodily harm," saying:
I'm not going to go into the definition of great bodily harm, it's the same definition that I guess I've dealt with all the time, grievous bodily harm, and it's harm that's seriously painful or hard to bear.*fn2
After trial, the court entered written findings of fact. Finding XXX stated:
Based upon the nature of the injuries suffered and the acts of the defendant, the five assaults were committed with the intent to inflict great bodily harm. Mr. Beinert, Mr. Dulyea, Mr. Tears and Mr. Mosley actually suffered great bodily harm. The assaults were committed with a deadly weapon or by a force or means likely to produce great bodily harm or death.*fn3
At sentencing, the court imposed five consecutive standard
range terms of 108 months each.*fn4 After finding that Huddleston was "indigent and has no ability to pay at anytime,"*fn5 the court ordered that he pay $100 to the crime victims' fund and $5,000 in restitution. The court waived reimbursement of court costs and appointed counsel's fees.
On appeal, Huddleston argues the trial court erred by convicting without sufficient evidence, and by not finding an essential element of each crime charged. He further argues that he received ineffective assistance from his trial attorney. Finally, he argues that the trial court erred by ordering him to pay ...