No. 24749-6-II.The Court of Appeals of Washington, Division Two.
Filed: November 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Thurston County, No. 98-1-01358-7, Hon. Daniel J. Berschauer, June 4, 1999, Judgment or order under review.
Counsel for Appellant(s), Robert M. Quillian, Attorney At Law, 2633a Parkmont Lane SW, Olympia, WA 98502.
Counsel for Respondent(s), Steven C. Sherman, Thurston Co Dep Pros Atty, 2000 Lakeridge Dr SW, Olympia, WA 98502.
ELAINE M. HOUGHTON, J.
Victor Mario Fernandez appeals from his convictions of second and third degree child assault, arguing that there was insufficient evidence to support the convictions. We affirm.
FACTS[1]
In March 1998, Victor Fernandez moved in with Karen Werner and her two children. RP 21. From time to time, Fernandez assisted in caring for the children. At the time, Werner’s son, J.A.W., was under two years of age.
When caring for the children, Fernandez bathed them alone or watched them while Werner ran errands. After Fernandez moved in with Werner, Werner began to notice injuries on her son. In particular, she noticed bruising along J.A.W.’s jawline. Before Fernandez moved in, Werner had not seen bruising on J.A.W.’s jawline. When Werner asked Fernandez about these injuries, he blamed J.A.W.’s daycare. Werner and the daycare refuted this testimony.
On April 7, 1998, Werner left her son with Fernandez for approximately 45 minutes. When she returned, J.A.W. was lying limp on Fernandez’s lap. J.A.W. did not jump up and run to greet his mother like normal. Werner also noticed bruising on his face. Two days later, Fernandez went alone to J.A.W.’s room to check when he began to cry. Sometime later, J.A.W. began screaming. At some point, Fernandez had taken J.A.W. from his crib into the master bedroom. Werner later entered and noticed that J.A.W.’s arm was swollen and his fingers cold. At this point, J.A.W. was screaming hysterically.
Werner and Fernandez took J.A.W. to the hospital. The doctor determined that J.A.W.’s arm was broken. The nurse and doctor both noticed that in addition to a broken arm, J.A.W. had bruising all over his body, including bruising and an abrasion around his neck. The doctor also noted that the bruising was consistent with finger marks and the shape of a hand.
The State charged Fernandez with one count of second degree assault of a child and three counts of third degree assault of a child. At trial, the emergency room doctor concluded that the injuries were not accidental, but the result of child abuse. In addition, a pediatrician testified that if the broken arm was the result of picking up the child, it was done with an inappropriate degree of force.
Fernandez testified that he did not abuse J.A.W. He testified that J.A.W.’s neck injuries were from the straps of a car seat and his shirt collar. The emergency room doctor refuted this testimony. Fernandez also testified that he had experience caring for children.
The jury found Fernandez guilty of the one count of second degree assault for the fracture to J.A.W.’s arm and of one count of third degree assault for strangling J.A.W. Fernandez appeals.
ANALYSIS
Fernandez contends that there was insufficient evidence to support his conviction. Evidence is sufficient to support a conviction when viewed in the light most favorable to the State, the evidence permits a 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); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980); State v. Delmarter, 94 Wn.2d 634, 637-38, 618 P.2d 99 (1980); State v. Fiser, 99 Wn. App. 714, 718-19, 995 P.2d 107, review denied, 141 Wn.2d 1023
(2000). A defendant challenging sufficiency of the evidence admits the truth of the State’s evidence and all reasonable inferences drawn in favor of the State, with circumstantial and direct evidence being equally reliable. See Salinas, 119 Wn.2d at 201; Delmarter, 94 Wn.2d at 638. In considering the evidence, `[c]redibility determinations are for the trier of fact and cannot be reviewed on appeal.’ State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The elements of second degree assault of a child are (1) a person over 18 years (2) commits second degree assault (3) against a child under 13. RCW 9A.36.130 (1)(a). Second degree assault consists of (1) an intentional assault (2) that recklessly inflicts substantial bodily harm. RCW 9A.36.021(1)(a). An assault is an intentional touching or striking of another person that is harmful or offensive. State v. Wilson, 125 Wn.2d 212, 218 883 P.2d 320 (1994). A person engages in reckless conduct when he or she knows of and disregards a substantial risk that a wrongful act may occur. RCW 9A.08.010(1)(c).
The elements of third degree assault of a child are (1) a person over 18 years (2) commits third degree assault (3) against a child under 13. RCW 9A.36.140. Third degree assault consists of (1) criminal negligence (2) which causes bodily harm accompanied by substantial pain that causes considerable suffering. RCW 9A.36.031(1)(f).
Second Degree Child Assault
Fernandez asserts that there was insufficient evidence to establish that he recklessly inflicted harm on J.A.W. because he did not know his actions would cause harm. Fernandez’s testimony was countered by an emergency room doctor who testified that the injuries sustained by J.A.W. were not accidental, but the result of child abuse. Additionally, a pediatrician testified that picking up a child in such a manner `would have been an extremely vigorous and inappropriate degree of force’ and that if the child were picked up `in any reasonable caretaking way, it [the broken arm] would have been unlikely.’ Report of Proceedings at 262. Moreover, Fernandez testified that he had prior experience working with children. On cross-examination, he admitted that Werner had seen the way he picked up J.A.W. in the past and told him to be careful.
Here there was conflicting evidence. The jury chose not to believe Fernandez. We defer to their finding on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). Given that deference, there was sufficient evidence for the jury to conclude beyond a reasonable doubt that that Fernandez knew of the risk in forcefully picking up J.A.W. by the arm and that he recklessly did so, thereby committing second degree child assault.
Third Degree Child Assault
Fernandez further asserts that there was insufficient evidence to establish that he caused the bruising on J.A.W.’s neck. Werner testified that after moving in with Fernandez, she noticed bruising along J.A.W.’s jaw line. Fernandez spent time alone with J.A.W. Before Fernandez moved in, Werner had not seen bruising on J.A.W.’s jawline. The emergency room doctor testified that `[t]o a reasonable degree of medical certainty, someone grasped this child with force greater than any reasonable amount for a child about his neck.’ Report of Proceedings at 295. The doctor also testified that the bruising looked like finger marks and `was not caused by a brief or accidental contact.’ Report of Proceedings at 295. This was more than sufficient evidence from which the jury could conclude that Fernandez caused the bruising on J.A.W.’s neck, which is consistent with strangulation.
Finally, Fernandez asserts that there was insufficient evidence to establish that the assault caused `bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering’ as required by RCW 9A.36.031(1)(f). As stated, the emergency room doctor testified that an unreasonable amount of force was used to grasp the child around his neck and that it was not `a brief or accidental contact.’ Report of Proceedings at 295. Additionally, a pediatrician testified that a child could `get these injuries [bruising on the neck] from more direct forces to the neck, like a strangulation type of force.’ Report of Proceedings at 264. Drawing all reasonable inferences from the evidence in favor of the State, this evidence is sufficient to support the jury’s conclusion that grasping J.A.W. around the neck caused bodily harm, accompanied by substantial pain that caused considerable suffering.
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.
WE CONCUR: BRIDGEWATER, J., HUNT, A.C.J.