STATE v. GIBSON, 49686-7-I (Wash.App. 5-5-2003)

No. 49686-7-IThe Court of Appeals of Washington, Division One.
Filed: May 5, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 01-1-01630-6 Judgment or order under review Date filed: 11/05/2001

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Nancy P Collins, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Jason Brett Saunders, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Robin Elisabeth Sheridan, King County Prosecutor Ofc, W554 King Co Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.

PER CURIAM.

A conviction for second degree assault requires the State to prove that the defendant intentionally assaulted another and thereby recklessly inflicted substantial bodily harm. An “intentional assault” may consist of an intentional act which creates a reasonable apprehension and fear of bodily injury in the victim. Thus, where the evidence and findings, as here, support the court’s conclusion that the defendant acted with intent to create apprehension in the victim, that the victim experienced a reasonable apprehension of harm, and that the injuries inflicted constituted substantial bodily harm, the court properly held that the defendant was guilty of second degree assault.

FACTS
Late in the afternoon of March 1, 2001, Matthew Schneider and his friend Clark Gibson were playing pool and drinking beer at a tavern in Renton. Gibson became obnoxious and belligerent. After an argument ensued in the tavern, Gibson went outside to the parking lot with a pool cue in hand and began arguing with an older gentleman. Neil Romero observed this altercation sitting in his parked car in a lot next to the tavern. He observed Gibson, who appeared to be intoxicated, swinging a pool cue at an elderly man, and Schneider kicking the windows of the tavern. Romero approached to intervene on behalf of the elderly man, but as he approached he saw that the older gentleman was physically overpowering the much younger Gibson. As Romero began to leave, a group of individuals arrived and asked Romeo what was going on. As he was explaining the situation, they began laughing at the sight of the older gentleman turning the tide on the younger man.

When Gibson heard the observers laughing, he began threatening them with the pool cue. One of the individuals in the group retrieved a baseball bat from his car. Once Gibson saw the bat he backed off from the group and attacked Romero, hitting him several times with the pool cue. Romero testified that he hit Gibson in the face with his fist, and in an attempt to rush Gibson to avoid being hit again, Romero stumbled and fell to the ground. He felt something hit his face from behind, stating that he believed he “caught a knife in the face.”[1] Romero testified that he then turned and saw Schneider lunging at his stomach with a knife, and that he raised his leg to protect himself and the knife cut his thigh. Romero stated that either Schneider or Gibson grabbed him by the shirt, and both continued to hit him until he managed to get away. Schneider was charged in an amended information with first degree assault and received a bench trial. Schneider told police officers at the scene that Gibson and he were attacked by individuals outside the bar and that he was unarmed. However, Schneider testified at trial that he took out his knife to dissuade the observers with the baseball bat from becoming involved and yelled at them to stay out of the fight. Schneider asserted that the stabbing was accidental and resulted from his efforts to protect Romero by knocking him away from Gibson. Romero incurred scarring on both his leg and face from the attack. The court was able to observe Romero’s scarring and heard Romero’s testimony that his wounds still bothered him.

In its oral ruling, the court stated there were three means of committing an assault, “common law battery, an attempt to inflict injury, and . . . placing a victim in reasonable apprehension of injury.” The court stated that it believed it was not Schneider’s intent to inflict great bodily harm upon Romero. However the court did believe Schneider intended to place others in reasonable apprehension of injury by brandishing the knife, and did place Romero in fear of injury by rushing at him with the knife.

The court’s written findings of fact and conclusions of law reflected its oral ruling. The court found that Gibson attacked Romero and that other individuals watched the fight but did not intervene. The court found that Schneider then removed his knife and ran towards Gibson and Romero, stabbing Romero in the leg with the knife. The court found that Schneider intended to place others in fear of injury when he brandished the knife and he did place Romero in reasonable fear of injury when Romero saw Schneider running at him with the knife. The court concluded that Schneider intentionally assaulted Romero with a knife.[2]
Regarding Romero’s injuries, the court found that Romero had visible scarring from the stab wound, and sustained serious injuries as a result of being stabbed with the knife. The court concluded that Schneider recklessly inflicted substantial bodily harm to Romero. Schneider was found guilty of second degree assault and the court imposed an exceptional sentence because it found that he was armed with a deadly weapon. Schneider appeals, arguing: (1) that no substantial evidence existed to support the court’s determination that he acted with intent to assault Romero or that Romero suffered substantial bodily harm; (2) that the court improperly rejected his defense of others claim; and (3) the court improperly determined that his testimony was not credible. We apply the usual standard of review for sufficiency of the evidence claims.[3]
Some of the court’s findings of fact were mislabeled as conclusions of law. “[A] finding of fact erroneously described as a conclusion of law is reviewed as a finding of fact[,]” and the appellate court merely determines if the evidence in the record supports the finding.[4]

DISCUSSION
Second degree assault may be shown by proof that a person “[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm.” RCW 9A.36.021(1)(a). Washington courts generally recognize three definitions of assault. An assault is (1) “an act, with unlawful force, done with intent to inflict bodily injury upon another[,]” (2) “an intentional [touching] [or] [striking] . . . of the person or body of another,” (3) “an intentional act, with unlawful force, which creates in another a reasonable apprehension and fear of bodily injury[.]”[5]

State v. Byrd clarified the third definition of assault and held that the State must prove the defendant “acted with an intent to create in his or her victim’s mind a reasonable apprehension of harm.”[6]

The trial court found Schneider guilty of assault because he intended to create apprehension and fear of bodily injury in others. The court found, and the evidence supported, that Schneider brandished a knife in the presence of many people, including Romero. Based on Schneider’s testimony, the court concluded that he intended to place others in apprehension of harm by brandishing the knife. Thus, the evidence and the court’s findings clearly illustrate that these “others” included Romero.

The court also found that Schneider placed Romero in reasonable fear of injury when Romero saw Schneider running at him with the knife. This finding is supported by the evidence that Schneider removed his knife, ran at Romero, and Romero raised his leg to protect his stomach from the knife.

The court’s findings were supported by the record, and these acts met at least one definition of intentional assault. Thus, there was sufficient evidence for the court to conclude that Schneider intentionally assaulted Romero with the knife. Further, although Schneider argues otherwise, the court’s findings were sufficient for the court to conclude that Schneider recklessly inflicted substantial bodily harm to Romero. Substantial bodily harm is defined as a bodily injury “which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ; or which causes a fracture of any bodily part[.]”[7] The trial court heard testimony, examined evidence, and observed the permanent reminders of Romero’s injuries. The court also found Romero sustained “serious injuries” from the stabbing to the leg and had visible scarring from the stab wound. These findings were supported by the record. As the trial court concluded, viewing the evidence in the light most favorable to the State, any rational trier of fact would find that Romero’s serious scarring constituted a substantial disfigurement. Thus, he suffered substantial bodily harm, whether the scarring was temporary or permanent. Schneider claims that the court erred in finding his testimony was not credible. This contention is without merit. Schneider argues that this finding is not supported by substantial evidence because the court stated in its oral ruling that it did not believe any witness intentionally lied at trial. However, Schneider fails to note that the court also noted in its oral ruling that issues of witness credibility did in fact exist, although they related more to witness perceptions than to intentional lying.

The court’s written ruling determined that Schneider was not credible because his perceptions of the events were not reasonable in light of the facts. “Credibility determinations are for the trier of fact and cannot be reversed on appeal.”[8] Nevertheless, both the oral opinion and the written findings supported the court’s conclusion that Schneider’s perceptions were neither reasonable nor accurate, thus he was not credible. Schneider’s final argument that the trial court improperly rejected his defense of others claim is similarly without merit. In order to raise the claim of self-defense, a defendant bears the initial burden of producing some evidence that tends to prove the assault occurred in circumstances amounting to self-defense.[9] “The question of whether the defendant has produced sufficient evidence to raise a claim of self-defense is a matter of law for the trial court.”[10] The trial court must evaluate the evidence of self-defense from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees.[11] The trial court found that Schneider’s testimony was not credible and his perceptions of the events were not reasonable in light of the facts presented at trial. Although the court concluded that Schneider did not act reasonably in the defense of Gibson in its written ruling, the court also stated in its oral opinion that Schneider was not acting reasonably in defense of another by opening and brandishing the knife; that he knew there was a substantial risk that harm would occur; that he disregarded the risk in gross deviation from conduct that a “reasonable person would exercise in the same situation,” and that his actions resulted in injury. Clearly, the court determined that Schneider’s choices were not what a reasonably prudent person would have chosen to do under the circumstances. Thus, it did not err in rejecting his defense of others claim. .

We hold the evidence clearly supports the court’s findings of fact. Additionally, any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence presented in the light most favorable to the State. Taken as a whole, the court’s findings of fact, conclusions of law, and oral ruling support the court’s final conclusion that Schneider intentionally assaulted Romero and that Romero suffered substantial bodily harm.[12]
Thus, it did not err in finding him guilty of assault in the second degree. Affirmed.

KENNEDY and BAKER, JJ., concur.