STATE v. DRATH, 28395-6-II (Wash.App. 12-6-2002)

No. 28395-6-IIThe Court of Appeals of Washington, Division Two.
Filed: December 6, 2002 UNPUBLISHED OPINION

Appeal from Superior Court of Mason County Docket No: 01-1-00246-5 Judgment or order under review Date filed: 01/24/2002

Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, P.O. Box 510, Hansville, WA 98340-0510.

Counsel for Respondent(s), Carol L. Case, Mason Co Pros Office, P.O. Box 639, Shelton, WA 98584-0639.

BRIDGEWATER, J.

Orson L. Drath appeals his conviction of third degree assault. Finding that the evidence is sufficient to support the conviction, we affirm.

Facts
The State charged Drath with third degree assault for the assault of Shelton Police Officer Scott Brown based on an altercation that occurred on July 6, 2001. Drath pleaded not guilty, and the case went to a jury trial. Officer Brown and Drath were the only witnesses presented at trial.

Officer Brown testified that on July 6, he was working a graveyard shift when he was dispatched to check on the welfare of a man, later identified as Drath, sleeping inside a parked car outside an apartment building. Brown, who was in full uniform, first attempted to wake Drath by calling to him, informing him that he was as police officer, and asking him if he was all right.

His initial attempts to rouse Drath failed, so Brown reached into the vehicle and nudged Drath with his flashlight, again telling him that he was a police officer and asking him if he was all right. Drath still did not respond. As Brown nudged Drath a second time, he “sprang awake” and began flailing his arms and kicking out of the open car door toward Brown. II Report of Proceedings (RP) at 14.

Brown took a step back and attempted to identify himself again. He testified that at this point he believed Drath was “very awake and very agitated[.]” II RP at 15. Drath then exited the car and “pursued” Brown as he was backing away. II RP at 15. At some point, Drath grazed the inside of Brown’s knee.

Brown kept backing away, and Drath continued to approach him. Brown attempted to fend off Drath’s blows with a flashlight, all the while telling Drath to “back off” and identifying himself as a police officer. II RP at 16. When Drath continued to approach him, Brown attempted to use his pepper spray, but it did not work. He then attempted to use his flashlight to defend himself from Drath’s blows, but Drath managed to get a hold of the flashlight, and the two men struggled over it for a brief period until Brown hit Drath somewhere in the face or head and succeeded in breaking away. Brown abraded his arm and broke his wristwatch band during this struggle.

Drath continued to advance, so Brown drew his firearm and ordered him to get back. He then identified himself as a police officer, told Drath that he was under arrest, and ordered Drath to get down on the ground. Drath, who still appeared agitated and hostile, sat or knelt down on the ground, but would not lie down until Brown forced him to the ground with his foot. Once Brown handcuffed Drath and took him into custody, he was generally compliant. Brown testified that Drath later told him that during the altercation he was not aware Brown was a police officer. Brown also testified that during the altercation he repeatedly made eye contact with Drath and that he believed Drath was fully awake.

Drath testified that he had fallen asleep in his car while waiting for a friend. He did not recall the details described by Brown, but he recalled that when he first awoke he felt afraid, there was a bright light, and he “was trapped with a screaming man’s holding up his hand at [him].” II RP at 30. He testified that initially he only had a vague sense of someone threatening him and that he was not fully awake until after he was on the ground. Drath stated that he never intended to strike Brown and that if Brown identified himself as a police officer he was not awake enough to hear him.

The jury convicted Drath as charged. Drath appeals.

Analysis
Drath argues that the State failed to prove that he intentionally assaulted Brown. We disagree.

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 inferences that reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable, and we defer to the trier of fact on issues of conflicting testimony, the credibility of witnesses, and the weight of the evidence. State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157, review denied, 130 Wn.2d 1008
(1996).

Initially, we note that although intent to assault is not an element of third degree assault, see RCW 9A.36.031(1)(g), the to convict instruction in this case clearly included intent to assault as an element of the crime:

To convict the defendant of the crime of assault in the third degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 6th day of July, 2001, the defendant intentionally assaulted Scott Brown; (2) That at the time of the assault Scott Brown was a law enforcement officer or other employee of a law enforcement agency who was performing his official duties; and (3) That the acts occurred in the State of Washington.

Clerk’s Papers (CP) at 32 (emphasis added). Under the law of the case doctrine, `the State assumes the burden of proving otherwise unnecessary elements of the offense when such added elements are included without objection in the `to convict’ instruction.’ State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998); see also State v. Marking, 100 Wn. App. 506, 512, 997 P.2d 461, review denied 141Wn.2d 1026 (2000). The record here reveals no objections to this instruction, thus, this unchallenged instruction became the law of the case, the State was required to establish that Drath intended to assault Brown, and Drath may predicate his insufficient evidence claim on this element. See Hickman, 135 Wn.2d at 102; Marking, 100 Wn. App. at 512.

Under the jury instructions, to prove intent to assault the State had to establish that Drath acted with “the objective or purpose to accomplish” the assault. CP at 30. Drath suggests that the evidence shows only that the two men struggled and that it is impossible to tell from this evidence whether Drath intentionally assaulted Brown or whether he was “merely reacting to the situation[.]” Br. of Appellant at 6. We disagree.

” [T]he specific criminal intent of the accused may be inferred from the conduct where it is plainly indicated as a matter of logical probability.” State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Taking the evidence in the light most favorable to the State, we have no difficulty in concluding that a rational trier of fact could find intent to assault beyond a reasonable doubt based on Drath’s conduct. Brown testified that Drath appeared awake and aware of what he was doing when he came at him swinging and “pursued” him as he was attempting to retreat. Although Drath’s initial response may have been an involuntary response to being abruptly awoken, a jury could reasonably conclude from the fact Drath continued to aggress against Brown for an extended period of time that Drath intended to strike Brown. Additionally, a reasonable jury could have concluded, based on Drath’s own testimony, that at the time of the assault Drath was striking out intentionally out of fear when he hit Brown. Even if the jury believed that Drath was motivated by fear, his motivation for striking Brown does not mean that his actions themselves were not intended.

Further, the fact Drath testified that he was not aware of his actions and did not intend to strike Brown does not require that the jury believe this testimony. The question of whether the jury believed Drath’s version of the events or concluded, based on Brown’s testimony, that Drath was awake and intended to strike him, rests on issues of credibility that are not subject to appellate review. See Lubers, 81 Wn. App. at 619.

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 pursuant to RCW 2.06.040, it is so ordered.

SEINFELD and HUNT, C.J.J., concur.