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State v. Encinas

December 19, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
MILO MONTOYA ENCINAS, APPELLANT.



Appeal from Superior Court of King County. Docket No: 93-1-05122-7. Date filed: 01/28/94. Judge signing: Hon. Joan E. Dubuque.

Authored by Susan R. Agid. Concurring: Mary K. Becker, Ann L. Ellington.

The opinion of the court was delivered by: Agid

AGID, J. -- Milo Montoya Encinas appeals his conviction for assault in the second degree, contending that there was insufficient evidence to support the verdict and that his trial counsel's failure to interview a witness who came forward after the trial was ineffective. We conclude that the evidence presented by the State was sufficient and that Encinas' trial counsel was not ineffective. We therefore affirm.

FACTS

On July 28, 1993, Robert Earl Simpson was watching his neighbors work on his car when a van driven by Milo Montoya Encinas pulled up next to him.

Simpson and Encinas exchanged looks and Simpson asked Encinas if he had "a problem." At that, Encinas got out of the van and spit on Simpson. The two exchanged further words and then began to fight. Simpson testified that, during the fight, Encinas said "I got something for you." Simpson believed that Encinas meant that he had a weapon and began running across the street to his house. Simpson testified that he then heard a gun shot.

He entered his house through a window and called 911 to report the incident. He found a large, heavy flashlight and went outside to check on his car because he believed Encinas wanted to steal it. He later returned to his house, retrieved his .9 Glock handgun, and waited for the police to arrive. Simpson did not see Encinas fire a gun because he was running away at the time the shots were fired.

Harold Reed was watching television that afternoon when he heard the fight between Encinas and Simpson in front of his house. Moments later Reed's son came in the house and told him to call the police because someone had gone after a gun. Reed called 911 and told the operator that he saw a man with something under his shirt. Reed described the man as wearing green sweat pants and matching green shirt. During the conversation, two shots were fired. Reed testified that his view of Encinas was blocked by a house at the time he heard the shots.

Police found Encinas, who fit Reed's description of a male in green sweat pants and shirt, at a nearby corner market. They advised him that he was under arrest and asked for his name. Encinas initially stated that his name was Milo Atler but eventually gave the officers his true name. The officers held him at the corner market until Simpson arrived for a show-up identification. They searched both Encinas' person and the van he had been driving but found no weapon.

Officer Jon Moore, who responded to the 911 call, testified that he found a spent .40 caliber shell in the street near where the fight took place. Detective Steven Wieland testified that the shell casing could not have fit in the weapon that Simpson admitted retrieving from his home. The State argued in closing that the casing established that a weapon had been fired in the area and suggested that, because it did not fit Simpson's gun, it was probably from the shot fired by Encinas.

Witnesses for the defense presented a contradictory story. Reed's son testified that Simpson fired the shot at Encinas. John Miller also testified that he never saw Encinas with a gun. Rather, he saw Simpson with a gun threatening to shoot Encinas. Encinas also argued that he was attempting to call 911 to report the incident when he was in the corner market. In addition, there was some testimony that the shell casing was damaged and may have been left in the street prior to the shooting on July 28.

At the close of the State's case, Encinas brought a motion to dismiss, arguing that the State had not presented sufficient evidence. The court denied the motion. The jury found Encinas guilty of second degree assault with a deadly weapon. Prior to his sentencing, Mrs. Reed, Harold Reed's wife, told Encinas' attorney that she had seen Simpson with a smoking gun in his hand. The police had not interviewed Mrs. Reed. There was, however, no testimony that she had given this information to anyone prior to trial. Encinas brought a motion for a judgment notwithstanding the verdict and a new trial based on this newly discovered evidence. The trial court denied the motion, and this appeal followed.

Discussion

A. Sufficiency of the ...


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