Opinion
No. 21495-8-III.
Filed: February 19, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 01-1-01108-2. Judgment or order under review. Date filed: 10/16/2002. Judge signing: Hon. Michael E Donohue.
Counsel for Appellant(s), Donald G. Miller, Attorney at Law, 422 W Riverside Ave Ste 518, Spokane, WA 99201-0302.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Preston L. Ashe was found guilty at the conclusion of a jury trial of second degree assault of a child pursuant to RCW 9A.36.130(1). He appeals the trial court's denial of his motion for a new trial, raising several issues — all predicated on insufficient evidence to support the verdict. Because we conclude the evidence supports the jury verdict, the judgment and sentence is affirmed.
FACTS
On April 3, 2001, Mr. Ashe cared for his two young daughters while their mother, Amber Lyman, went to work. After Ms. Lyman returned home for the evening, Mr. Ashe left with friends. As soon as he left, two-year-old Jaidyn came out of her bedroom asking whether her dad was going to live in their home anymore. Ms. Lyman immediately noticed Jaidyn's eyes were red rimmed and that she had a large bump on her head. When asked how she hurt her head, Jaidyn answered "I did it on the TV." Because the bruise had not been there when she left for work that morning, Ms. Lyman immediately contacted Mr. Ashe to ask what happened. Mr. Ashe told her he had no idea what happened to Jaidyn and denied seeing a bruise on her forehead. After checking with the after-hours pediatrician, Ms. Lyman took Jaidyn to the emergency room at Sacred Heart Medical Center, where she was later admitted. Within a few days, the bruising to the forehead resulted in Jaidyn's eyes swelling shut while the skin around her eyes turned black and blue. The bruising around the eyes lasted for several months. Because the hospital personnel suspected child abuse, Child Protective Services and law enforcement officials were called to the hospital.
Report of Proceedings (RP) at 107.
After an investigation, Mr. Ashe was initially charged in the Spokane County Superior Court with two counts of second degree assault of a child pursuant to RCW 9A.36.130(1)(a). Just prior to the first trial, the information was amended to only one count of second degree assault of a child. At the conclusion of a trial held in February 2002, the court declared a mistrial because the jurors could not reach a unanimous verdict.
A second trial was held in August 2002, after which the jury found Mr. Ashe guilty as charged. Based on information revealed by jurors at the conclusion of the trial, Mr. Ashe filed a CrR 7.4 motion for arrest of judgment or, alternatively, for a new trial pursuant to CrR 7.5. The requests were based on statements made by certain jurors that they could not agree about the cause of the victim's head injury so they disregarded that evidence. Mr. Ashe's motions were denied and he received a midrange standard sentence. This timely appeal resulted.
ANALYSIS
The sole issue on appeal is whether the evidence is sufficient to support the jury's determination that Mr. Ashe was guilty of second degree assault of a child pursuant to RCW 9A.36.130. In any challenge to the sufficiency of the evidence, we must view the evidence in the light most favorable to the State in order to determine whether any rational trier of fact could find all the elements of the crime charged beyond a reasonable doubt. State v. Hepton, 113 Wn. App. 673, 681, 54 P.3d 233 (2002), review denied, 149 Wn.2d 1018 (2003). Circumstantial evidence is considered as reliable as direct evidence. State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999). Any questions of conflicting testimony, witness credibility, and persuasiveness of the evidence are left to the trier of fact. State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157 (1996).
The relevant portion of the statute defines second degree assault of a child: `(1) A person eighteen years of age or older is guilty of the crime of assault of a child in the second degree if the child is under the age of thirteen and the person: (a) Commits the crime of assault in the second degree, as defined in RCW 9A.36.021, against a child.' RCW 9A.36.130. Second degree assault is defined in relevant part: `(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm.' RCW 9A.36.021. `Substantial bodily harm' is defined in RCW 9A.04.110(4)(b) as: `bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.'
The elements the State had to prove beyond a reasonable doubt in order to convict Mr. Ashe of the crime of second degree assault of a child were that: (1) Mr. Ashe was 18 years or older at the time of the incident; (2) the victim was under the age of 13; (3) the incident occurred on April 3, 2001, in the state of Washington; (4) Mr. Ashe intentionally assaulted Jaidyn; and (5) the assault resulted in the reckless infliction of substantial bodily harm. Jurors were also given instructions defining the terms intentionally, assault, recklessly, and substantial bodily harm. The parties agree the first three elements were properly proven by the State.
Mr. Ashe claims the evidence does not support the verdict because the jurors did not consider the injury to Jaidyn's forehead when reaching their decision as no consensus could be reached regarding how the bruise was inflicted. As a result, he maintains the only issues left for the jury to decide were whether the bruises on her abdomen and the scratches on her thighs were the result of an intentional assault and whether they constituted substantial bodily harm. Without citation to authority Mr. Ashe argues Jaidyn's injuries did not amount to substantial bodily harm. He also claims the injuries were not the result of an intentional assault by him toward the child. As noted above, the information regarding how the jury reached its verdict was revealed in a postverdict conversation between certain jurors and trial counsel. The State correctly argues that a reviewing court cannot consider this type of evidence, which necessarily inheres in the jury's verdict. State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988).
Reviewing, as we must, the evidence in the light most favorable to the State, we conclude the trial court properly denied Mr. Ashe's motion for arrest of judgment, or, in the alternative, a new trial. We agree with Mr. Ashe that the State's evidence in this case was purely circumstantial. Even the medical experts disagreed about the amount of force necessary to cause the type of bruising Jaidyn exhibited when she arrived at the hospital emergency room on the date in question. The evidence did not conclusively prove Mr. Ashe inflicted the injury or, if he did, that it was intentional. However, the State is also correct that just because the evidence was circumstantial and Mr. Ashe presented contrary testimony, that does not mean the evidence was not sufficient to support the verdict. Credibility decisions are uniquely for the trier of fact to determine and we will not interfere with such determinations. Lubers, 81 Wn. App. at 619.
The jury heard evidence from one medical doctor that the force necessary to cause Jaidyn's injuries was similar to the force sustained in an automobile accident. That same physician testified he had never seen a bruise that large on a child who accidentally ran into a wall. A social worker testified that although Ms. Lyman explained that Jaidyn said she hurt her head on the television, it was her opinion, after seeing the television in Ms. Lyman's apartment, that Jaidyn was not tall enough to hit her head on it. Detective Harlan Harden of the Spokane Police Department testified that he interviewed Mr. Ashe who admitted being frustrated with Jaidyn after she wet her pants on the date in question. Mr. Ashe admitted to picking Jaidyn up and that he may have "grabbed [her] too hard." Deferring, as we must, to the jury's credibility decisions, we are convinced the evidence was sufficient to allow a jury to conclude that Mr. Ashe intentionally assaulted Jaidyn and recklessly inflicted substantial bodily harm. See State v. Ashcraft, 71 Wn. App. 444, 455, 859 P.2d 60 (1993) (assault victim's bruises were temporary but substantial disfigurement sufficient to prove substantial bodily harm element of second degree assault).
RP at 70.
Because the evidence supports the verdict, the judgment and sentence is affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, C.J. and SWEENEY, J., concur.