Opinion
No. 64512-9-I.
January 24, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-1-00573-1, Bruce I. Weiss, J., entered November 17, 2009.
Affirmed by unpublished opinion per Schindler, J., concurred in by Cox and Lau, JJ.
A jury found Edgar Amelco guilty of assault in the third degree. Amelco appeals, arguing he is entitled to reversal because there is insufficient evidence that he intentionally kicked the police officer. We affirm.
FACTS
On February 9, 2009, Edgar Amelco and some other members of his family went to a bar in Marysville. At around 1:00 a.m., Amelco's family got into an argument with another group. At least 20 people were told to leave. When the police arrived they took steps to control the crowd outside. Amelco, who matched the description of one of the people involved in the altercation, was sitting on a bench outside the bar. Officer Joshua Hardy questioned Amelco and asked him for his identification. When Amelco stood up, Officer Hardy told him to sit down. When Amelco did not, Officer Hardy put his hand on Amelco's shoulder and moved him into a sitting position.
Officer Hardy moved a couple of steps away to monitor the crowd of people outside the bar. Amelco stood up again. Officer Molly Ingram told him to sit back down. When Amelco refused, she "pushed him back down onto the bench." At that point, Amelco told Officer Ingram he wanted to fight her, and told her if he did get back up he would hit her.
Amelco's wife came over to try to calm him down. Amelco yelled at her, grabbed her by the arm, and then hit his wife with the back of his hand. The police placed Amelco under arrest for assault in the fourth degree.
Amelco continued being uncooperative while the police attempted to handcuff him. Officers Hardy and Ingram eventually handcuffed Amelco, but they had to bring Amelco down to the ground to search him incident to arrest. After searching Amelco, Officer Hardy tried to help Amelco into a seated position, but Amelco continued to resist. The police left him on the ground, handcuffed.
Amelco then lunged forward towards Officer Ingram. Officer Hardy and another police officer stopped him and placed Amelco in a prone position on the ground. Amelco managed to squirm away and began kicking toward Officer Ingram, striking her twice. The kicks left red marks with distinct lines of shoelaces on Officer Ingram's shin.
The State charged Amelco with assault of a police officer in the third degree. Officer Hardy testified that when trying to arrest Amelco, he "clenched his fists, he straightened up and stiffed up his body, and he was not complying with any of my commands or directives." Officer Hardy also testified that Amelco "shifted his body weight out from underneath kicking out at Officer Ingram, striking her at least twice. . . . I heard the impact, and then I saw two kicks that . . . didn't connect." Officer Ingram testified that she was sure Amelco kicked her because she "watched him two times kick me and connect and then miss two other times with the same leg."
Amelco testified that the police arrested him because he would not stay seated. Amelco testified that he did not know Officer Ingram was present when he was thrown to the ground, and that he did not intend to strike the officer. Amelco also denied threatening Officer Ingram. In rebuttal, Officer Ingram testified that Amelco kicked her, and that he was facing her when he kicked her.
The court instructed the jury on assault, defining it as follows:
An assault is an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive if the touching or striking, [sic] would offend an ordinary person who is not unduly sensitive.
In closing, the defense argued that Amelco did not intend to kick the officer and the kicks were inadvertent. The jury found Amelco guilty. The court imposed a standard range sentence. Amelco appeals.
ANALYSIS
Amelco contends he is entitled to reversal because insufficient evidence of intent supports the conviction. Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found each element of the offense beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that a trier of fact can draw from that evidence. Salinas, 119 Wn.2d at 201. A reviewing court defers to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
To convict Amelco of third degree assault, the State had to prove that he intentionally assaulted Officer Ingram, who was performing her official duties at the time of the assault. RCW 9A.36.031(1)(g). Although RCW 9A.36.031 does not have an express intent element, the common law definition of assault requires the State to prove an intentional act constituting an assault. See State v. Brown, 140 Wn.2d 456, 470, 998 P.2d 321 (2000). "A jury may infer criminal intent from a defendant's conduct where it is plainly indicated as a matter of logical probability." State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
Here, sufficient evidence supports the finding that Amelco intentionally assaulted Officer Ingram. Officer Ingram testified that Amelco threatened to hit her. Both Officer Ingram and Officer Hardy testified that Amelco repeatedly struggled with them and had acted uncooperatively throughout his arrest. Officer Hardy testified that Amelco kicked "out at Officer Ingram, striking her at least twice." Officer Ingram testified that Amelco kicked her and was facing her when he kicked her. The jury could reasonably infer Amelco intended to assault Officer Ingram. While Amelco testified that he did not intend to kick Officer Ingram, the jury was not compelled to believe his testimony.
See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (holding credibility determinations are for the trier of fact and are not subject to review).
Viewing the evidence in the light most favorable to the State, the jury could find each element of the offense beyond a reasonable doubt, and we affirm.