Here, the defendant assaulted his former girl friend by striking her and pushing her. She struck furniture and was seriously injured. The question before the court is whether the furniture she struck satisfies the statutory requirement of an instrument or thing likely to produce bodily harm. Our Supreme Court has already answered that question in a unanimous opinion in State v. Marohl, 170 Wash.2d 691, 246 P.3d 177 (2010). And, the answer is no.
The State argues that under the circumstances presented here, "a piece of drywall or ceiling in a purposefully flooded home becomes 'an object likely to produce harm . . . [and] fall[s] within the . . . purview' of the third degree assault statute." Br. of Resp't at 2 (second alteration in original) (quoting State v. Marohl, 170 Wn.2d 691, 699, 246 P.3d 177 (2010)). Although the State is no longer arguing, as it did at trial, that the relevant object is the house itself, we conclude that, under the circumstances presented here, neither the house, drywall, nor water was a weapon or other instrument or thing likely to produce bodily harm as those terms are used in the assault in the third degree statute.
Both Sundberg and the State rely on this court's decision in State v. Marohl, 151 Wn. App. 469, 213 P.3d 49 (2009), rev'd, 170 Wn.2d 691, 246 P.3d 177 (2010), in which this court held that a casino floor was an instrument or thing likely to produce harm when the defendant slammed the victim into the floor, dislodging his prosthetic arm and causing significant injuries. Our Supreme Court has subsequently disagreed, holding: "The language of RCW 9A.36.031(1)(d) does not include the casino floor within the meaning of instrument or thing because, under the circumstances of this case, it was not likely to produce harm and it was not used as a weapon."
Therefore, the statute is given its plain and ordinary meaning as defined in the dictionary. State v. Marohl , 170 Wn.2d 691, 699, 246 P.3d 177 (2010). In Marohl , the court applied the dictionary definition to "instrument" and "thing," describing both as:
The statute does not contain a definition of "other instrument or thing likely to produce bodily harm." But our Supreme Court recently undertook a thorough examination of this language and interpreted the provision in question in State v. Marohl, 170 Wn.2d 691, 246 P.3d 177 (2010). In Marohl, two casino patrons became involved in a verbal dispute that quickly turned physical and violent.
¶ 10 Due process requires the State to prove beyond a reasonable doubt every essential element of a crime. State v. Marohl, 170 Wash.2d 691, 698, 246 P.3d 177 (2010). Where there are findings of fact, as in a bench trial, unchallenged findings of fact are verities on appeal. State v. Alvarez, 105 Wash.App. 215, 220, 19 P.3d 485 (2001).
An "instrument or thing likely to produce bodily harm" is one which is "likely to produce harm by its nature or by circumstances." State v. Marohl, 170 Wn.2d 691, 699, 246 P.3d 177 (2010).
The goal when construing a statute is to discover and carry out the legislature's intent. State v. Marohl, 170 Wash.2d 691, 698, 246 P.3d 177 (2010). If the statute's language is plain on its face, we give effect to that language as a statement of the legislative intent.
"To determine whether there is sufficient evidence to support a conviction, we view the evidence in the light most favorable to the prosecution and determine whether any rational fact finder could have found the elements of the crime beyond a reasonable doubt." State v. Marohl, 170 Wn.2d 691, 698, 246 P.3d 177 (2010). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom."
State v. Marohl, 170 Wn.2d 691, 703, 246 P.3d 177 (2010); State v. Donofrio, 141 Wash. 132, 137-38, 250 Pac. 951 (1926).