Opinion
No. 38991-6-II.
January 12, 2010.
Appeal from a judgment of the Superior Court for Lewis County, No. 09-8-00007-7, Nelson E. Hunt, J., entered March 10, 2009.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Bridge-water, JJ.
M.A-F. appeals his conviction for custodial assault, arguing that insufficient evidence supports his conviction and that the trial court failed to enter a written finding of intent. We affirm.
A commissioner of this court initially considered M.A.-F.'s appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges.
On the morning of November 25, 2008, M.A.-F. entered Tracy Phillips's classroom at Green Hill, a maximum security facility for juvenile offenders, and attacked fellow offender Ricardo Casares. When the attack began, Phillips, a mathematics teacher, called for security and attempted to monitor the other students and prevent the fight from expanding. Phillips's responsibility in such situations is to call security and keep an eye on the other students, rather than attempt to break up a fight. As Phillips moved out from behind his desk and towards the middle of his classroom, M.A.-F. and Casares moved towards him. Casares began shielding himself behind Phillips. M.A.-F. continued to swing at Casares and, in the process, hit or grazed Phillips's shoulder with his hand. Security then entered the room and removed M.A.-F. Although Phillips did not require medical attention and sustained no permanent damage from the incident, he described the contact as unpleasant, unexpected, and offensive.
The State charged M.A.-F. with custodial assault. At trial, Phillips testified as described above. He also testified that, on the day of the incident, the classroom contained nine to twelve students. At trial, four of those students testified that they did not see M.A.-F. hit Phillips, even though they were in a position to view the incident.
The juvenile court found M.A.-F. guilty of custodial assault. The court specifically stated,
There was an intentionally [sic] assault here. I — the respondent intended to assault someone, and he did assault Mr. Phillips. Under the doctrine of transfer intent, that constitutes an intentionally [sic] assault. . . . [T]here's been no reason suggested why [Phillips] would make any of this up, and I can find none, looking at his testimony.
Report of Proceedings (March 3, 2009) at 73. The juvenile court's written findings and conclusions likewise stated, "Respondent's intent to assault another inmate transferred to the victim, Tracy Phillips, under the doctrine of transferred intent." Clerk's Papers (CP) at 2. M.A.-F. appeals.
A person is guilty of custodial assault when he assaults "any educational personnel . . . at any juvenile corrections institution or local juvenile detention facilit[y] who was performing official duties at the time of the assault" and the act does not constitute first or second degree assault. RCW 9A.36.100(1)(a). "Assault is an intentional touching or striking of another person that is harmful or offensive, regardless of whether it results in physical injury." State v. Tyler, 138 Wn. App. 120, 130, 155 P.3d 1002 (2007) (citing State v. Shelley, 85 Wn. App. 24, 28-29, 929 P.2d 489, review denied, 133 Wn.2d 1010 (1997)).
M.A.-F. argues that insufficient evidence in the record supports his conviction because Phillips only testified to his impressions of the incident and M.A.-F.'s actions merely demonstrated a "withdrawn attack." Br. of Appellant at 12. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. 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 reasonable inferences that a trier of fact can draw from that evidence. Salinas, 119 Wn.2d at 201; State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980). Determinations of credibility are for the trier of fact and are not subject to review. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). Because we are unable to assess the witnesses' demeanor, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75 (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)). Under the doctrine of transferred intent, once the intent to inflict harm on one victim is established, the mens rea transfers to any other victim who is actually assaulted. State v. Clinton, 25 Wn. App. 400, 403, 606 P.2d 1240, review denied, 93 Wn.2d 1026 (1980).
M.A.-F. alleges that the contact unintentionally occurred while he was "withdrawing." But he cites to no evidence in the record that supports his contention and, even if such evidence did exist, it would regard issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence, over which we defer to the juvenile court.
Here, Phillips testified that, while teaching at Green Hill, a maximum security facility for juvenile offenders, M.A.-F. entered his classroom and began attacking Casares. As Phillips moved towards the middle of the classroom, M.A.-F. attempted to hit Casares and, in the process, hit Phillips. Phillips testified that he found the contact offensive. Four other witnesses testified that they did not see M.A.-F. hit Phillips, but we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence. Drawing all reasonable inferences from the evidence in favor of the verdict, it is clear that any rational trier of fact could find beyond a reasonable doubt that, while Phillips performed his duties at Green Hill, M.A.-F. intentionally swung at Casares and hit Phillips. Thus, the State presented sufficient evidence to establish that M.A.-F. committed a custodial assault against Phillips.
M.A.-F. also argues that the trial court failed to find intent, an ultimate fact necessary to support his conviction. We disagree. JuCR 7.11(d) requires the juvenile court's findings of fact and conclusions of law to specifically state the ultimate facts necessary to support a conviction. State v. Avila, 102 Wn. App. 882, 896, 10 P.3d 486 (2000) (citing State v. Alvarez, 128 Wn.2d 1, 16, 904 P.2d 754 (1995)), review denied, 143 Wn.2d 1009 (2001). Failure of the juvenile court to specifically state the ultimate facts necessary to support a conviction in its findings and conclusions can be cured by remand for subsequent entry of findings, conclusions, and judgment. Alvarez, 128 Wn.2d at 19; State v. Mercy, 55 Wn.2d 530, 532, 348 P.2d 978 (1960).
The juvenile court entered written findings of fact and conclusions of law. Its conclusion of law 2.2 states, "Respondent's intent to assault another inmate transferred to the victim, Tracy Phillips, under the doctrine of transferred intent." CP at 2 (emphasis added). While this conclusion should have been labeled a finding of fact, it is nonetheless a finding of ultimate fact that is sufficient to satisfy JuCR 7.11. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986) (reviewing courts may review findings of fact erroneously labeled conclusions of law as findings of fact). Thus, the juvenile court's findings of fact and conclusions of law adequately state the ultimate facts.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.