Opinion
No. 27059-9-III.
April 9, 2009.
Appeal from a judgment of the Superior Court for Spo-kane County, No. 07-1-03067-1, Ellen K. Clark, J., entered April 24, 2008.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Brown and Kulik, JJ.
Roseman Lexing appeals his first degree assault conviction, contending the State failed to prove the charge beyond a reasonable doubt. We conclude sufficient evidence supports the conviction and affirm.
FACTS
Around 11:00 p.m. on July 30, 2007, Maria Martinez saw someone repeatedly kicking a person on the ground under a freeway overpass. She called 911 and police officers were dispatched to the scene. When officers arrived, Donald Capparelli was lying unresponsive on the ground and bleeding profusely from his head.
Mr. Lexing was standing with a group of seven or eight people about 40 yards from Mr. Capparelli. Mr. Lexing was agitated and talking loudly. Officers noticed that he had fresh blood spatter on his shorts, lower legs, and shoes. Mr. Lexing explained that he walked in Mr. Capparelli's blood when he went over to check on him. Mr. Lexing was arrested and charged with first degree assault and first degree robbery.
A jury acquitted him of the first degree robbery charge.
At trial, police officer Kurt Vigesaa testified that he was dispatched to the reported assault at about 11:05 p.m. The group of bystanders denied witnessing the incident, but Mr. Lexing's wife, who was standing next to Mr. Capparelli, identified Jason Wilson as the assailant. When questioned by Officer Vigesaa, Mr. Wilson told him that Mr. Lexing was the assailant. Officer Vigesaa described the blood on the top of Mr. Lexing's shoes, lower legs, and shorts as "consistent with him kicking a bloodied subject, back splash of blood getting on his legs." Report of Proceedings (RP) at 276.
No witness identified Mr. Lexing as Mr. Capparelli's assailant. At trial, contrary to his earlier statement, Mr. Wilson denied witnessing the assault or telling officers that he saw Mr. Lexing kicking Mr. Capparelli. Ms. Martinez could not positively identify Mr. Lexing, but agreed that he was "similar" to the person she saw kicking Mr. Capparelli. RP at 298. Mr. Capparelli could not recall the events before the assault and could not identify his assailant. However, DNA (deoxyribonucleic acid) testing revealed that the blood on Mr. Lexing's shoes and shorts matched Mr. Capparelli's.
The defense stipulated that Mr. Capparelli's injuries constituted great bodily harm as required by the first degree assault statute. A jury convicted Mr. Lexing of first degree assault. This appeal followed.
ANALYSIS
The only issue on appeal is whether sufficient evidence establishes that Mr. Lexing assaulted Mr. Capparelli. Mr. Lexing does not dispute that Mr. Capparelli's injuries constitute great bodily harm for purposes of the first degree assault statute. His sole contention is that the evidence is insufficient to establish that he was the assailant.
Evidence is sufficient to support a conviction if it permits a rational trier of fact to find the essential elements of the crime when viewed in the light most favorable to the prosecution. 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 a rational trier of fact could reasonably draw from the evidence. Id. We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
As charged in this case, to convict of first degree assault, the jury had to find that Mr. Lexing, with intent to inflict great bodily harm, assaulted Mr. Capparelli by any force or means likely to produce great bodily harm or death. RCW 9A.36.011(1)(a). Properly viewed, the evidence here was sufficient to permit the jury to make that determination.
Officer Vigesaa testified that on the night of the incident, Mr. Wilson told him that he witnessed Mr. Lexing repeatedly kicking Mr. Capparelli. Although Mr. Wilson later denied making that statement, the jury could properly determine that Mr. Wilson was not credible at trial. Additionally, the blood spatter on Mr. Lexing's shoes, clothing, and legs was consistent with kicking a bloodied person, and DNA testing established that the blood on Mr. Lexing's shoes and shorts was Mr. Capparelli's.
CONCLUSION
The evidence is sufficient to establish that Mr. Lexing committed first degree assault. Accordingly, we affirm the conviction.
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, J. and KULIK, J., Concur.