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State v. Berry

September 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
JASON W. BERRY, DOB: 4-1-81, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-00129-9. Date filed: 04/06/95. Judge signing: Hon. Mary W. Brucker.

PER CURIAM. -- The juvenile court convicted Jason Berry of second degree assault despite his testimony that he was drunk at the time of the incident and had no memory of it. He contends the conviction should be reversed because the evidence established that he was too intoxicated to form the requisite mental state, i.e., intent. Alternatively, he contends his trial counsel was ineffective for failing to present additional evidence of his intoxication.

Because the evidence of intoxication did not show that Berry was unable to form intent, the trial court did not err in rejecting the intoxication defense. Berry's ineffective assistance argument is based on matters outside the record and must therefore be raised in a personal restraint petition.

FACTS

On the morning of October 27, 1994, Clifford Coumley, a Safeway grocery store manager, noticed Berry and several other juveniles hanging out in front of the store and hassling customers. Coumley told the boys to leave.

Coumley subsequently watched Berry run toward Frank Williams, who was putting his groceries in his truck in the parking lot. Berry knocked 69-year-old Williams to the ground. According to Williams, Berry said, "Hey old man," and struck his left shoulder with a closed fist. Williams identified Berry in a show-up at the scene.

Williams suffered a broken left femur and had to have a steel rod inserted in his leg. Berry was eventually charged with assault.

At trial, Williams testified that he had no way of knowing whether Berry was intoxicated at the time of the assault. Officer Chartrand testified that he did not smell intoxicants on Berry and did not notice any signs of intoxication.

Berry testified that he was extremely intoxicated at the time and did not remember attacking Williams. He had consumed a large amount of alcohol at a party the night before, had "blacked out", and woke up in a newspaper bin. He remembered walking to a phone and making a collect call to his grandmother when he woke up. He also testified that he was having trouble walking and blacked out several times on the way to the phone.

Berry remembered hearing his friend David suggest that they "go jack a car" and walking towards the Safeway store, but he did not remember Williams or an assault.

The court found that Berry had not shown his acts were "rendered unintentional because of his intoxication." This appeal followed.

DECISION

Berry first challenges the trial court's Conclusion that the evidence did not show that his intoxication prevented him from forming the requisite intent. He contends his testimony established that he was "fading in and out of consciousness," blacking out, and unable to form the necessary intent. Berry's contention fails for several reasons.

First, there was no evidence that Berry ever lost consciousness, only evidence that he could not remember attacking Williams. Second, contrary to Berry's assertions, the evidence supporting his defense was not compelling. Berry had the burden of presenting evidence "that the drinking affected his...ability to acquire the required mental state." State v. Gallegos, 65 Wash. App. 230, 828 P.2d 37, review denied, 119 Wash. 2d 1024, 838 P.2d 690 (1992). Berry offered no expert testimony concerning the effect of his intoxication on his ability to form intent. His testimony that he had trouble walking and had no memory of the assault showed that he was intoxicated, but it did not compel the Conclusion that his intoxication rendered him unable to form the requisite mental state. *fn1 Significantly, Berry's testimony that he made a collect call to his grandmother immediately prior to the incident supports the opposite Conclusion since it shows that he carried out an intentional act immediately prior to the assault.

Given the evidence before the court, we cannot say it erred in concluding that the evidence did not show impairment of Berry's ability ...


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