Opinion
No. 41321-3-II
02-07-2012
STATE OF WASHINGTON, Respondent, v. A.M.T., Appellant.
UNPUBLISHED OPINION
Armstrong, J. — A.M.T. challenges the sufficiency of the evidence in her juvenile adjudication of third degree assault of a law enforcement officer performing his official duties. Viewed in the light most favorable to the State, we are satisfied that the evidence was sufficient to prove the assault. We affirm.
FACTS
One day in June 2010, A.M.T. and her mother, J.T., argued after J.T. kicked out A.M.T.'s boyfriend who had lived with them for eight months. A.M.T. was upset and J.T. called police hoping they could calm her down.
This court uses initials when referring to appellant's relatives to protect the appellant's confidentiality.
Pierce County Sheriff's Deputy Brian Heimann responded to J.T.'s call. He arrived at the scene in uniform and attempted to take separate statements from A.M.T. and J.T. The three stood outside near a driveway along with A.M.T.'s boyfriend.
While Deputy Heimann spoke with J.T., A.M.T. repeatedly interrupted, stating that she knew her "rights." Report of Proceedings (RP) (Aug. 31, 2010) at 45. Deputy Heimann then approached A.M.T., who stood less than five feet away. A.M.T. told the deputy to get out of her "space." RP (Aug. 31, 2010) at 15. At that point, A.M.T.'s boyfriend asked Deputy Heimann if he could try to calm A.M.T. down. Deputy Heimann agreed and went back to talking with J.T.
The parties dispute what happened next. Deputy Heimann testified that as he spoke to J.T., he saw A.M.T. clench her fists and tell her boyfriend, "I am going to kick his ass." RP (Aug. 31, 2010) at 16, 19, 25-26. Deputy Heimann stood 15 - 20 feet away and testified that he felt A.M.T. had the ability to harm him. He believed A.M.T.'s comment was directed at him. He walked back toward A.M.T., grabbed her by the right wrist, and started to lead her to his police car. He told her, "Let's go to the car and calm down." RP (Aug. 31, 2010) at 17.
Deputy Heimann testified that A.M.T. screamed and tried to break free. She slapped him on the arm he used to lead her to the car. A.M.T. then swung her left hand back toward Deputy Heimann's head. RP (Aug. 31, 2010) at 17, 28. When A.M.T. swung with an open hand, Deputy Heimann moved his head to the left to avoid being hit. She struck the bill of his hat. The State admitted Deputy Heimann's hat with alleged scratches from A.M.T.'s fingernails into evidence at trial. Deputy Heimann employed a straight arm bar takedown to subdue A.M.T. after she struck his hat.
The trial judge found that A.M.T. swung at Deputy Heimann and knocked off his hat. "She didn't follow directions, and for whatever reason she felt that she could have things done her way," the trial judge said. "I got the sense that she was out of control and just didn't have respect for the officer." RP (Sept. 2, 2010) at 65. The trial judge found A.M.T. guilty "because of just that gesture" of striking Deputy Heimann's hat. RP (Sept. 2, 2010) at 65.
ANALYSIS
I. Standard of Review
In reviewing a challenge to the sufficiency of evidence, we view the evidence in the light most favorable to the State and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We draw all reasonable inferences from the evidence in the State's favor and interpret them most strongly against the defendant. Salinas, 119 Wn.2d at 201. We defer to the trier of fact on issues of conflicting testimony, witnesses'credibility, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
II. Sufficiency of Evidence — Intent
A.M.T argues that the State failed to prove that she had the specific intent required in an attempted battery assault. While A.M.T. asserts that she never threatened Deputy Heimann and any swinging of her arm was in response to the deputy's use of force, the State argues that if A.M.T. was only trying to pull away from Deputy Heimann, she would not have swung with enough force to knock off his hat.
The trial court convicted A.M.T. of third degree assault, a class C felony, under RCW 9A.36.031(1)(g). Because assault is not defined in the statute, we resort to the common law for its definition. State v. Byrd, 125 Wn.2d 707, 712, 887 P.2d 396 (1995) (citing Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 504, 125 P.2d 681 (1942)). Courts recognize three types of assault — actual battery, attempted battery, and putting another in apprehension of harm. Byrd, 125 Wn.2d at 712-13; State v. Frazier, 81 Wn.2d 628, 630-31, 503 P.2d 1073 (1972); State v. Krup, 36 Wn. App. 454, 460, 676 P.2d 507 (1984). The long-standing definition of "attempted battery assault" is "'an attempt, with unlawful force, to inflict bodily injury upon another, accompanied with the apparent present ability to give effect to the attempt if not prevented.'" Byrd, 125 Wn.2d at 712 (quoting Howell v. Winters, 58 Wash. 436, 438, 108 P. 1077 (1910)); 11 Washington Practice: Washington Pattern Jury Instructions: Criminal § 35.50, at 547 (3d ed. 2008).
RCW 9A.36.031(1)(g) provides:
(1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree:
. . . .
(g) Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault. . . .
Specific intent is an essential element to all forms of assault. State v. Eastmond, 129 Wn.2d 497, 500, 504, 919 P.2d 577 (1996), overruled on other grounds by State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002). To commit assault, a person must have intended to cause bodily harm or to create an apprehension of bodily harm. State v. Williams, 159 Wn. App. 298, 307, 244 P.3d 1018 (2011) (citing Byrd, 125 Wn.2d at 713, 887 P.2d 396). We can infer the specific criminal intent of the accused from her conduct. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
The trial judge convicted A.M.T. because she struck Deputy Heimann's hat with the intent to inflict bodily harm. We previously affirmed the third degree assault conviction of a defendant who repeatedly tapped the arresting officer on the head as he drove the defendant to jail. State v. Johnson, 29 Wn. App. 307, 308, 311, 628 P.2d 479 (1981). The defendant testified that he was not trying to be threatening but merely insulting. Johnson, 29 Wn. App. at 309. And the officer was not physically harmed by the assault. Johnson, 29 Wn. App. at 309. We reasoned that although Johnson asserted his actions were meant to be insulting, his conduct hindered his "peaceful and orderly" custody and amounted to unlawful behavior. Johnson, 29 Wn. App. at 311 (citing State v. Jury, 19 Wn. App. 256, 269, 576 P.2d 1302 (1978)). Here, A.M.T.'s conduct was similar.
Moreover, we can infer A.M.T.'s specific intent by considering the events before and after the alleged assault. Recently, Division One affirmed the conviction of a defendant who stabbed an officer with a pair of medical scissors and challenged the sufficiency of the evidence for his third degree assault conviction. Williams, 159 Wn. App. 298. The court held that it could infer the defendant's intent from the circumstances. Two officers testified that the defendant looked toward them as they approached from behind and held the scissors in his fist with the point aimed downward. Williams, 159 Wn. App. at 307. The defendant repeatedly stabbed one officer, attempted to conceal the weapon after the attack, and continued to be aggressive toward the officers after being arrested. Williams, 159 Wn. App. at 307-08. The court held that a jury could reasonably infer from the evidence that Williams was aware that two men were approaching him, that he was holding the scissors as a weapon, and that the stabbings were intentional. Williams, 159 Wn. App. at 308.
Similarly, we can infer from the surrounding circumstances that A.M.T. intended to harm Deputy Heimann. A.M.T. was confrontational throughout her exchanges with Deputy Heimann. RP (Aug. 31, 2010) at 30. She told Deputy Heimann, "Don't talk to me. You don't have the right to talk to me," and also challenged him to "[j]ust f[******] arrest me! Take me to jail then!" Clerk's Papers (CP) at 6. She was yelling and pulling away as Deputy Heimann led her to his police car to cool down. And she slapped Deputy Heimann once on the arm before swinging her arm backward toward his head. The trial judge found Deputy Heimann credible and characterized A.M.T.'s behavior as "aggressive." CP at 7. This evidence supports the trial court's conclusion that A.M.T. intended to strike Deputy Heimann when she swung her arm toward his head. Accordingly, the State presented sufficient evidence that A.M.T. intended to harm Deputy Heimann - a necessary element of the assault for which she was convicted.
III. Sufficiency of the Evidence — Present Ability
A.M.T. argues that the State failed to prove that she had the present ability to inflict bodily injury on Deputy Heimann. We agree with A.M.T. that the State had to prove "present ability" as an element of the assault charge. Byrd, 125 Wn.2d at 712 (citing Howell, 58 Wash. at 438).
Washington courts have not defined "present ability," but they have described circumstances sufficient to establish "present ability." These include "raising of the hand in anger, with an apparent purpose to strike, and sufficiently near to enable the purpose to be carried into effect . . . ." Peasley, 13 Wn.2d at 505.
Deputy Heimann testified that he felt A.M.T. had the ability to harm him. When asked to explain he answered, "She is a capable person that can swing or hit me." RP (Aug. 31, 2010) at 29. He testified that she raised her hand and swung at him and that he had to move his head to avoid the blow. Finally, he had to execute a take-down move on A.M.T. before handcuffing her and putting her in the car. Viewed in the light most favorable to the State, this evidence was sufficient to prove that A.M.T. had the present ability to injure Deputy Heimann.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
Armstrong, J. We concur:
Quinn-Brintnall, J.
Penoyar, C.J.