Appeal from Superior Court of King County. Docket No: 95-8-01443-9. Date filed: 05/26/95. Judge signing: Hon. Marsha J. Pechman.
PER CURIAM -- Floyd Labensky appeals his conviction in juvenile court of assault in the second degree. The sole issue on appeal is whether the evidence was sufficient to establish that Labensky acted intentionally, where there was evidence that he may have been under the influence of drugs at the time of the offense. Because we conclude that the State proved intent beyond a reasonable doubt, the conviction is affirmed.
The incident that resulted in the charge occurred on March 8, 1995. Stacy Weed was in the waiting room of Dr. Steven Smith's office. She looked out the window and observed in the parking lot four young men, including Labensky, surrounding a fifth male, Jason McFarlane. The men were hitting and punching McFarlane. Weed told the office staff to call 911. The fight moved within a few feet of the doctor's office. Michael Labensky, the respondent's brother, approached McFarlane holding a knife. Weed went outside and stepped between Michael and McFarlane. Weed ordered Michael to put the knife away. At that point, Dr. Smith came out and pulled Weed into the office. McFarlane also ran into the office. Floyd Labensky took the knife from Michael and ran to the office door. Holding the knife in his hand, Labensky tried to open the door, but Weed and Dr. Smith held it shut. After 15 to 20 seconds of struggling with the door, Labensky left and went to the parking lot, where he attempted to stab the driver's side tire. He could not penetrate it, so he moved to the passenger side where he successfully stabbed the tire. Labensky then quickly left the area with the other men.
Shortly thereafter, the police found Labensky and the others behind a building a few blocks away. Officer Hans Krenz arrested Labensky after he was identified by a witness to the assault. The knife was never found. Officer Krenz described Labensky as belligerent, hostile and aggressive. Labensky appeared to understand who the officers were and threatened Officer Krenz and his family. Officer Krenz testified that Labensky's threats were made in a sober, cool and deliberative manner. Officer Donald Dotson testified that Labensky told the officer to shoot him because he had no reason to live.
Labensky offered evidence of voluntary intoxication. Labensky testified that he had no memory of the events leading up to his arrest. He testified that on March 5, three days before the incident, he had been at a party where he took four Valium-like pills called Klonopin. Shortly thereafter, he took more of the pills, eventually totaling 17 to 18 of them. He also drank a small amount of alcohol. The next thing he recalled was waking up at a hospital emergency room. After being given a drug to counteract the effect of the Klonopin, he left the hospital a few hours later. He slept for two days, then on March 8th went to his mother's house where he took four or five more pills. The next thing he remembered was talking to Officer Krenz. Labensky testified that he uses Valium and marijuana almost daily.
Dr. Lawrence Halpern, a neuropharmacologist with psychiatric training and experience, testified that Klonopin is an anticonvulsant drug that can exacerbate seizures in some patients and in reasonable doses sometimes produces confusion, depression, forgetfulness, hallucinations, hysteria, insomnia, irritability, belligerence and distractibility. Klonopin is much stronger than Valium. Dr. Halpern reviewed Labensky's hospital records, the Department of Youth Services (DYS) mental health records and the police record. Based on this information, he opined that there were essentially four possible causes for Labensky's assaultive behavior: (1) simply being nasty; (2) depression to the point of belligerence; (3) depression intensified by the drug Klonopin; and (4) a temporal lobe seizure triggered by Klonopin.
Dr. Halpern testified that it would take several days for the effects of 20 or so Klonopin to wear off and that the drug typically produces some sort of amnesia. The effect of the drug would vary somewhat on the individual's use of the drug, so the effect would be blunted for someone who used the drug over a long period of time, but for someone with an occasional or single use, the chances were very good that he would not know what he was doing while he was under the influence of the drug. Dr. Halpern was unable to say with any certainty which of the possible causes of Labensky's behavior was more likely.
Raymond Mason, a drug and alcohol specialist at DYS, met with Labensky on March 10, the day after the assault because DYS staff were concerned that Labensky looked like he was coming off of a drug. Mason described Labensky as lethargic and "out of it." Mason testified that Labensky seemed to be detoxing.
Heidi Wasch, a clinical psychologist who works at DYS, met with Labensky on March 9th and 10th. Wasch testified that based on what she knew about him, Labensky appeared to be suffering from polysubstance abuse and moderate depression.
The trial court believed Labensky's testimony regarding the drugs he ingested and believed that Labensky could not remember the incident. The court found, however, that Labensky formed the requisite mental intent to assault McFarlane with a knife. The court found:
The court finds that Respondent's actions were intentional.
There was much evidence to support this Conclusion. The manner in which Respondent conducted himself in concert with others indicates intentional action, as does Respondent taking the knife from another and pursuing the victim. Additionally attempting to gain entry prying on the door, going back to the car and slashing tires, disposal of the knife, actions in which he secreted himself, recognition of authority figures when they arrived all indicate planning and ability to carry out one's activities. The fact that Respondent does not remember the incident does not mean he lacked ability to form the intent. The court found Labensky guilty as charged of assault in the second degree.
The only issue on appeal is whether the evidence was sufficient to support the trial court's finding that Labensky acted with the requisite intent.
A person is guilty of assault in the second degree if, under circumstances not amounting to assault in the first degree, he assaults another with a deadly weapon. RCW 9A.36.021(1)(c). The "specific intent either to create apprehension of bodily harm or to cause bodily harm is an essential element of assault in the second degree." State v. Byrd, 125 Wash. 2d 707, 713, 887 P.2d 396 (1995). Thus, the State is required to prove intent beyond a reasonable doubt. Evidence of intent is derived from all the circumstances of the case. State v. Woo Won Choi, 55 Wash. App. 895, 906, 781 P.2d 505 (1989), review denied, 114 Wash. 2d 1002 (1990).
Voluntary intoxication is not a defense, but is a factor that the factfinder may consider in determining if the defendant acted with the specific mental intent required for the crime charged. RCW 9 A.16.090. State v. Furman, 122 Wash. 2d 440, 454, 858 P.2d 1092 (1993); State v. Coates, 107 Wash. 2d 882, 889, 735 P.2d 64 (1987). Voluntary intoxication includes intoxication from alcohol or drugs. State v. Hackett, 64 Wash. App. 780, 784-85, 827 P.2d 1013 (1992). Evidence of intoxication is not an ...