Opinion
Nos. 62502-1-I consolidated with 62503-9-I.
September 21, 2009.
Appeals from a judgment of the Superior Court, Snohomish County, No. 08-8-00463-5, Larry E. McKeeman, J., entered September 26, 2008.
Affirmed by unpublished opinion per Ellington, J., concurred in by Schindler, C.J., and Leach, J.
Sergey Chepurko was convicted of second degree assault for his participation in a group fight. He appeals, arguing he did not possess the deadly weapon used in the assault and the State did not prove he acted with the specific intent of creating apprehension of harm in his victim's mind. Chepurko does not, however, challenge the court's findings of fact, which amply support his conviction. Further, the evidence supports the findings. We affirm.
BACKGROUND
On March 22, 2009, Sergey Chepurko and Kayla Harris were at the Alderwood Mall in Lynnwood. There they encountered Rodney Dean. Chepurko had been dating Dean's sister, a relationship her family disapproved. After calling his parents and reporting on his meeting Chepurko, Dean told Chepurko to stay away from his sister and his house or he would "come after [him]" and his parents would call the police. Dean then walked away. Kayla Harris went with him. Chepurko followed.
Report of Proceedings (Aug. 12, 2008) at 94.
Dean and Harris soon encountered three mutual friends, all members of a Lynnwood High School gang called the Juggalos. The Juggalos referred to Chepurko and his friends as the "Russian mob" or the "Russian mafia." The two groups had been involved in several incidents. Chepurko followed Dean and the Juggalos through the mall, repeatedly asking Dean why he could not see his sister. The three Juggalos challenged Chepurko to fight, and he walked away.
Id. at 106.
Id. at 57.
From the mall, Dean and his group went across the street to "the Hill," a wooded area sloping down from a parking lot to the grounds of Lynnwood High School. At the top of the Hill, they encountered two Russian youths. An altercation occurred between one of the Russian youths and one of the Juggalos. The Russian youth was armed with brass knuckles. The Juggalo armed himself with a log and struck the Russian youth with it, bloodying his face. The Russians then walked away. Dean was not involved in this dispute.
Id. at 41.
The Juggalos then called Chepurko's cell phone number and invited him to come to the Hill to smoke marijuana. In fact, they hoped to lure him there for a fight. Dean was not involved in the ruse, although he hoped he would have the opportunity to fight Cherpenko. The Juggalos summoned others, and between 7 and 10 individuals soon arrived. Some armed themselves with sticks and logs.
Meanwhile, Chepurko contacted 10 to 15 of his own friends and headed to the Hill. One of the youths with Cherpenko was still armed with the brass knuckles he had had earlier. Another was carrying an aluminum baseball bat.
Dean and the Juggalos were laying in wait at the base of the Hill. Chepurko and his friends descended the slope with the bat. Outnumbered, the Juggalos fled. Chepurko and company gave chase. Chepurko chased Dean, who ran to a nearby Marine recruiting station and called 911. He told the dispatcher he had been chased with a bat by several members of the Russian mob, and described their clothes. He told the dispatcher he had not been hit with the bat.
Officer Tyler Mellema responded to the area and saw three youths running across a field whose clothes matched Dean's description. The officer detained them. One was Chepurko; another had a pair of brass knuckles. The officer found an aluminum baseball bat along the path on which the three had been running. The officer also detained two other youths found nearby.
Dean identified all five as among those chasing him and the Juggalos. He identified Chepurko as the one who chased him with a baseball bat, and identified the bat found by the officer as the one Chepurko was holding while chasing him.
Chepurko was charged with assault in the second degree and felony riot. After a bench trial, the court rejected Chepurko's claim of self-defense and found him guilty of assault and misdemeanor riot. Chepurko appeals, contending the evidence was insufficient to support the assault conviction.
ANALYSIS
An assault occurs when a person intentionally places another in apprehension of harm "whether or not the actor actually intends to inflict or is capable of inflicting that harm." Assault with a deadly weapon is assault in the second degree. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.
State v. Hupe, 50 Wn. App. 277, 282, 748 P.2d 263 (1988), overruled on other grounds by State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Chepurko contends there is insufficient evidence he had the specific intent to create apprehension of bodily harm. Specific intent can be inferred as a logical possibility from the surrounding facts and circumstances. But Chepurko contends he did not possess a weapon, and in any case, no specific intent may be inferred from the mere display of a baseball bat.
State v. Pierre, 108 Wn. App. 378, 386, 31 P.3d 1207 (2001).
The judge found that Chepurko and his friends arrived at the Hill fully expecting to fight the Juggalos, to which purpose "[s]everal members of Mr. Chepurko's group were armed with weapons" including a baseball bat and brass knuckles, and that "Mr. Chepurko [was] aware of this fact." The judge declined to find that Chepurko personally was armed with the bat, but concluded:
Clerk's Papers at 4.
Mr. Chepurko intended to place Dean and others in his group in apprehension of imminent fear of bodily injury and Mr. Dean reasonably apprehended such.
The baseball bat as it was used and threatened by members of Mr. Chepurko's group was a [d]eadly [w]eapon readily capable of causing substantial bodily injury.
Though it was unclear which specific member of Chepurko's group possessed and threatened Dean and his group with the deadly weapon, that member and Mr. Chepurko acted as knowing accomplices in the threatening use of such, creating in Mr. Dean the reasonable apprehension he would be harmed with such.
Id. at 5.
Chepurko does not challenge these findings. They are therefore verities on appeal.
State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005).
These findings amply support the assault conviction. Further, the record supports the findings. The evidence also supports the finding that Dean was actually placed in apprehension of immediate harm. On the recording of the 911 call, Dean could be heard breathing hard and vomiting. Chepurko emphasizes that Dean and his group orchestrated the confrontation and that Dean testified Chepurko hit him with the bat, despite denying being hit to the 911 dispatcher. But who orchestrated the confrontation is entirely irrelevant, and the court was not required to reject or accept the entirety of Dean's testimony. The court properly focused instead on the elements of the offense, and found that whoever wielded the bat, Chepurko knew it was being used to place the Juggalos in fear of injury and that he specifically intended that result.
Affirmed.
WE CONCUR.