State v. Fawver, 2015 Wash. App. LEXIS 1208 (Wash. Ct. App. June 9, 2015):

Corey Fawver challenges his convictions for first degree burglary and second degree assault, alleging both that his counsel's performance was flawed and the evidence did not support the assault conviction. We disagree and affirm.

FACTS

The incident in question arose after Mr. Fawver was forcefully thrown out of a New Year's Party at the residence of Christopher Pierce in Deer Park. Pierce punched and pushed Fawver out of the event in the early hours of January 1, 2013. Fawver left on foot and texted a friend that he had been "jumped" at the party.

Three friends arrived in a truck to pick up Fawver; they were followed in another car by two other men. The six men drove in the two vehicles back to Pierce's residence, arriving around 3:00 a.m. Several of the men, armed with baseball bats, [*2]  entered the residence and a melee ensued. Many of the partygoers fought back against the invaders. Two of them identified Fawver as being among the group wielding baseball bats.

Pierce eventually was discovered outside, bleeding from head and face injuries. Among his injuries, he was discovered to have subdural hematomas and star-shaped skull fracture consistent with a blunt force injury. Pierce, who did not want to cooperate with investigators, was found to have a blood alcohol level of .17. Fawver, who was interviewed by police three months after the incident, told them that he also had been very intoxicated that evening.

Mr. Fawver and another man eventually were jointly charged with first degree burglary and second degree assault; each charge also was alleged to have been committed with a deadly weapon other than a firearm. The charging theory on the assault count was that the two men had assaulted Pierce "with a deadly weapon, to-wit: a baseball bat." Clerk's Papers (CP) at 1-2. Mr. Fawver's matter proceeded to a separate jury trial without the co-defendant.

Detective Michael Drapeau testified that he "screen grabbed" images from the Facebook page of Mr. Corey Fawver. One posting, shared with the jury, was [*3]  from January 1, 2013. Mr. Fawver's name and picture accompanied the post. The post was admitted as an exhibit without objection. It read: "Wow What a fun Night ppl [people] in dp [Deer Park] are not bad as they think they are." Exhibit 1, see Report of Proceedings (RP) at 140.

The defense presented evidence that Mr. Fawver had not wanted to return to the scene with his friends and had not wielded a weapon. Mr. Fawver did not testify. Defense counsel argued the case to the jury on a theory that his client reluctantly had been present but had not taken part in the fight. The jury was instructed, in relevant part, that to convict Mr. Fawver of second degree assault, it had to find beyond a reasonable doubt that he "assaulted Christopher Pierce with a deadly weapon." CP at 63. The jury also was instructed on the definition of a "deadly weapon" and on accomplice liability. CP at 67, 69.

The jury convicted Mr. Fawver on both counts and also concluded that the crimes were committed with a deadly weapon. Given Mr. Pierce's active participation in the offense, the court imposed an exceptional sentence below the standard range of 3 months to be served consecutively to the 36 months required by the deadly weapon enhancements. [*4]  Mr. Fawver then timely appealed to this court. The State did not cross appeal the exceptional sentence.

ANALYSIS

Mr. Fawver's appeal challenges both his counsel's performance and the evidence supporting the assault conviction. We address the two issues in the order noted.

Ineffective Assistance of Counsel

Mr. Fawver first alleges that his trial counsel performed ineffectively by not objecting to the Facebook post and by not seeking an