Opinion
No. 64999-0-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-8-01095-3, Michael J. Trickey, J., entered January 27, 2010.
Affirmed by unpublished opinion per Lau, J., concurred in by Leach, A.C.J., and Ellington, J.
Gilford Smith appeals his juvenile adjudication for one count of third degree assault, arguing that the trial court entered unsupported findings of fact, that there was insufficient evidence to support the conviction, and that the court should have found him guilty of only a lesser included offense. The challenged findings are either supported by the evidence or are immaterial, and any error is harmless. Substantial evidence supports every element of the charged offense. The court accordingly did not err in failing to find Smith guilty of only the lesser offense. We affirm.
FACTS
On the morning of October 15, 2008, Dyan Fix, a bus driver for King County Metro Transit, was driving a route in Seattle. Because of heavy traffic, other buses driving the same route were close behind her. As the buses approached a particular bus stop, Fix noticed two male juveniles waiting for the bus. In accordance with Metro policy, she passed without stopping because her bus was full and she knew one of the buses behind her would pick them up.
At her next stop on the route, one of the buses that had been behind her also stopped. Fix then saw who she thought were the same two juveniles standing outside her bus, next to the open front door. One of them yelled, "Bitch, you passed me up," and threw a bottle cap and cigarette at her, hitting her in the face with each. Record of Proceedings (RP) (July 31, 2009) at 11. One of the items hit her on the lip, causing the inside of her lip to bleed. She later described the person as a black male teenager wearing a black hooded sweatshirt and black backpack.
Fix stopped the bus and attempted to give chase, but the juvenile fled on foot. Fix continued driving for a short period, then contacted her supervisor. Because she was still upset by the incident, she was given the rest of the day off.
Seattle Police Officer Harold Dentinger responded to a dispatch that included a detailed description of the two juveniles, which was provided by Metro. Officer Dentinger saw two possible suspects at a convenience store near the bus stop where the incident occurred. Another Seattle officer also observed the suspects at approximately the same time, and both contacted the juveniles. Shortly thereafter, King County Deputy Sheriff Brian Barnes arrived.
Deputy Barnes, who was assigned to the transit police, had also received a dispatch describing the juveniles involved in the incident. He arranged to have Fix transported to the location where the juveniles were detained to see if she could identify one of them as the juvenile who had thrown things at her. Once Fix arrived, she identified Smith and the other juvenile was released.
Deputy Barnes obtained a signed waiver of Smith's Miranda and juvenile rights and took his statement. In his statement, Smith admitted that he had been bypassed on the bus route by Fix, became upset, and threw a lit cigarette at her at the next stop. He maintained that he had not meant to hurt Fix and said that even though he was on juvenile parole, detention would not take him over a little crime like this. He said the charge was a joke, and he would beat it. Smith was released to his mother, who lived a few blocks away.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Smith with one count of third degree assault in juvenile court. At the joint suggestion of counsel, the court tried the case on the merits simultaneously with its consideration of Smith's motion to suppress based on CrR 3.5 and 3.6.
Smith testified in his own defense. He admitted that he had thrown a cigarette at Fix, but denied that it was lit, denied that he was trying to hit her, and denied that he used any inappropriate language when respectfully asking her why she had passed him. He also denied using profanity in his statement to Deputy Barnes. He admitted being angry with Fix because he thought she had passed him because of his race.
In closing argument, Smith's counsel asked the court to consider finding Smith guilty of a lesser included offense of unlawful bus conduct because, counsel contended, the State had failed to prove the necessary element of intent to establish assault. The court denied the motions to suppress and found each element of the charged offense established beyond a reasonable doubt. The court thereafter entered written findings and conclusions that jointly addressed the motions and the substantive issue of guilt.
Smith received a standard range disposition. He now appeals, arguing the trial court erred because insufficient evidence supported the intent element of the offense and the court's findings of fact 4, 9, and 15. Smith also argues the court erred by failing to find him guilty of only unlawful bus conduct.
ANALYSIS
Sufficiency of Evidence of Intent and Finding of Fact 15
Smith's primary challenge is to the sufficiency of the evidence of the necessary element of intent. He accordingly also challenges the trial court's finding of fact 15: "The respondent put an object or objects into motion with the intent of hitting Fix, and those objects did in fact hit Fix. The respondent did not hit her accidentally."
"In reviewing the sufficiency of the evidence in a criminal case, the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Hagler, 74 Wn. App. 232, 234-35, 872 P.2d 85 (1994). We interpret all reasonable inferences from the evidence in favor of the State. 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 inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence is as probative as direct evidence. State v. Moles, 130 Wn. App. 461, 465, 123 P.3d 132 (2005). "This court must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000). Given the fact finder's opportunity to assess witness demeanor and credibility, we will not disturb those findings. See State v. Pierce, 134 Wn. App. 763, 774, 142 P.3d 610 (2006).
To prove third degree assault, the State had to prove the statutory elements that Smith assaulted "a person employed as a transit operator or driver . . . while that person is performing his or her official duties at the time of the assault." RCW 9A.36.031. In addition, the State was required to prove the nonstatutory element of an intentional act. State v. Kruger, 116 Wn. App. 685, 692, 67 P.3d 1147 (2003). Smith relies upon his trial testimony, in which he testified that he intended to hit only the bus and did not mean to strike Fix.
As the finder of fact, however, the trial court was free to discount Smith's testimony in favor of other evidence, and it did so here. We will not disturb the court's credibility determination or its decision to weigh other evidence over that of defense witnesses. See Fiser, 99 Wn. App. at 719 ("Credibility determinations are for the trier of fact and are not subject to review.").
Fix described Smith as flicking objects at her and hitting her in the face immediately following his hostile statement about her failure to stop. The court also heard testimony about where Smith was standing and what activities Fix was engaged in at the time. Moreover, Deputy Barnes's testimony was that Smith said verbatim, "That mother-fucking bitch didn't stop for us so I threw a cigarette at her ass." RP (July 31, 2009) at 77. Specific criminal intent may be inferred from defendant's conduct where it is plainly indicated by a logical probability. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Considered in the light most favorable to the State, the evidence here supported the court's finding that Smith acted intentionally and further supported challenged finding of fact 15.
Finding of Fact 4
Smith also challenges the court's finding of fact 4: "Fix, although she could not recall doing so in court, gave a description to her supervisor of the two young men that was later dispatched to officers in the area."
Smith argues this finding is not supported because Fix did not testify to giving such a description, and no other Metro personnel testified. He also contends no other evidence inferentially supports the finding because there was no evidence about the source of the description received by the police officers. We disagree.
The record shows that the trial court considered this question in resolving the CrR 3.6 suppression issue. For purposes of that issue, the computerized dispatch report was admitted into evidence, which listed Metro as the source of the descriptions. Based on his experience as a transit officer, Deputy Barnes also testified about the chain of command at Metro. It was clear, as the trial court reasoned, that the description was detailed and accurate and had to have come from somewhere. Given the short time between the incident and the Seattle officers' observation of Smith, it was reasonable for the court to infer that Fix was the source of the information and it had been relayed to police by her supervisor, who was the person to whom Fix reported the incident shortly after it happened. Drawing reasonable inferences in support of the challenged finding, as we must, we conclude that the finding was supported by substantial evidence.
Moreover, even if we concluded otherwise, Smith would be entitled to no remedy here. Smith does not challenge the court's CrR 3.6 ruling on appeal. Finding of fact 4 is immaterial, and the error would therefore be harmless even if it was not supported by substantial evidence. State v. Caldera, 66 Wn. App. 548, 551, 832 P.2d 139 (1992).
Finding of Fact 9
Smith next challenges a portion of finding of fact 9, which also went to the CrR 3.6 suppression issue: "Seattle Police Officer Harold Dentinger testified that he arrived and spotted two youths matching the description and turned his car around to make the stop. Before he could do so he watched another officer pull up to the youths and conduct the stop."
As Smith contends, the second sentence is not supported by substantial evidence because Officer Dentinger actually testified he did not recall whether he or the other officer reached Smith and his friend first. But the challenged portion of this finding is also immaterial. The error is harmless. Caldera, 66 Wn. App. at 551.
Lesser Included Offense
Finally, referring to his trial counsel's closing argument, Smith contends that the trial court should have found him guilty only of unlawful bus conduct. RCW 9.91.025(1)(i). Assuming without deciding that unlawful bus conduct could be a lesser included offense of third degree assault as charged here, however, there was no error. As Smith's trial counsel argued, finding only the lesser offense was premised on the theory that evidence of intent to establish assault was lacking. For the reasons stated above, we conclude otherwise.
Affirmed.