Opinion
No. 35899-9-II.
April 8, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-8-00789-9, James R. Orlando, J., entered January 23, 2007.
Reversed and remanded by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Penoyar, JJ.
Kuhyar Matthew Sajjadi appeals his juvenile court adjudication for second degree assault, arguing that the evidence was insufficient to support the adjudication. We agree and, therefore, reverse the second degree assault adjudication and remand for entry of a fourth degree assault adjudication, as a lesser included offense, and for resentencing.
FACTS
The State charged Sajjadi with second degree assault for punching Jason Halter another minor, in the face. The incident occurred in an eighth grade classroom at Lakeridge Middle School.
Sajjadi was born on October 7, 1991.
Halter was 14 years old at the time of the incident.
Halter testified that, while watching a movie in his sixth period class, Brad Paasch, another student, threw a penny that hit him in the nose. Halter turned around and Paasch apologized. Halter and Sajjadi, Paasch's friend, began a verbal confrontation after Halter asked Paasch if he intentionally threw the penny at him. Sajjadi then walked over to Halter and "pushed [Halter's] chair over with [Halter] in it." Report of Proceedings (RP) at 65. According to Halter, when he stood up, Sajjadi asked "Did you want some of this." RP at 66. Halter turned and Sajjadi hit him at an angle, on the right side of his face, "just a little bit on [his] nose and like mainly on [his] cheek." RP at 68. Halter then leaned his head over and Sajjadi kept hitting him until he fell over. Sajjadi testified that he hit Halter only once and that he did not make contact with Halter's nose.
Halter testified that his nose and face hurt, and that his nose bled. His nose continued to hurt and was swollen for several days, but his parents thought that, if it were broken, he would be in more pain. Three or four days after the fight, during a previously scheduled doctor's appointment, Halter's physician told him to see a nose specialist. A few weeks later, Halter had surgery to remove his adenoids to resolve his preexisting breathing problems.
The trial court adjudicated Sajjadi as charged and imposed detention within the standard range.
Sajjadi appeals.
ANALYSIS
Sajjadi argues that the State did not produce sufficient evidence to support his second degree assault adjudication, and that the trial court's fifth finding of fact does not support its second conclusion of law that Sajjadi inflicted substantial bodily harm on Halter.
The trial court's finding of fact five states:
The respondent thereby inflicted substantial bodily harm in that he caused bleeding from Halter's nose, caused swelling of Halter's face and nose, caused impairment of Halter's breathing, and caused Halter considerable pain that lasted a substantial period of time. Halter missed some school because of his injuries.
Clerk's Papers (CP) at 8. And conclusion of law two states: "That KUHYAR SAJJADI is guilty beyond a reasonable doubt of the crime of ASSAULT IN THE SECOND DEGREE in that, on 12/15/05 he did intentionally assault Jason Halter and thereby recklessly inflicted substantial bodily harm." CP at 9.
Sajjadi also challenges the trial court's first conclusion of law that it had jurisdiction over the parties and the subject matter. He relies on State v. Ford, arguing that the State did not meet its burden of proof because no witness testified that the crime occurred in Washington. 33 Wn. App. 788, 791, 658 P.2d 36 (1983) (holding that the State did not prove jurisdiction because "the trial judge made no finding of fact that the incident occurred in Washington and there is no evidence in the record from which this court may so conclude").
But here, unlike in Ford, the trial court found, in finding of fact three, that "all relevant events occurred in Pierce County," and it concluded as a matter of law that it had jurisdiction. CP at 8. The trial court heard testimony that the events occurred in Pierce County; Sajjadi specifically testified that he lived on "West Tapps Highway East, Bonney Lake, Washington," and his father testified that he was at work the day of the fight and was able to arrive at the school before it closed to pick up Sajjadi. "[S]ubstantial evidence supports the trial court's finding of fact" three; its first conclusion of law is proper; and, therefore, Sajjadi's jurisdictional claim fails. See State v. B.J.S., 140 Wn. App. 91, 97, 169 P.3d 34 (2007).
In addition, the State, citing Henderson Homes, Inc. v. City of Bothell, 124 Wn.2d 240, 244, 877 P.2d 176 (1994), abrogated on other grounds by James v. County of Kitsap, 154 Wn.2d 574, 587, 115 P.3d 286 (2005), argues that we should treat the trial court's findings of fact three and five as verities on appeal because Sajjadi "fails to provide argument in the brief as to how these findings are unsupported by the evidence." Br. of Resp't at 7. But in Henderson Homes, the appellant only made an assignment of error without argument, citation to the record, or authority. Sajjadi's brief clearly supports his assignments of error with numerous citations to the record and authority, and Sajjadi provides argument about why substantial evidence does not support the trial court's findings. Therefore, we do not consider the State's argument and do not treat findings of fact three and five as verities on appeal.
I. Standard of Review
"Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). A party claiming insufficiency of the evidence "`admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.'" Thomas, 150 Wn.2d at 874 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We view both circumstantial and direct evidence as equally reliable, and we "defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." Thomas, 150 Wn.2d at 874-75. "In determining whether the requisite quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case." State v. Jones, 93 Wn. App. 166, 176, 968 P.2d 888 (1998). "`Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding.'" State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (quoting State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).
We review the juvenile court's findings of fact for substantial evidence. State v. B.J.S., 140 Wn. App. 91, 97, 169 P.3d 34 (2007); State v. Alvarez, 105 Wn. App. 215, 220, 19 P.3d 485 (2001). "Unchallenged findings of fact are verities on appeal." Levy, 156 Wn.2d at 733. The trial court's findings of fact must support its conclusions of law. And we review conclusions of law de novo. B.J.S., 140 Wn. App. at 97.
II. Substantial Bodily Harm
A person commits second degree assault if the person "[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm." Former RCW 9A.36.021(1)(a) (2004). "`Substantial bodily harm' means 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." Former RCW 9A.04.110(4)(b) (2005).
See Laws of 2005, ch. 458, § 3.
See Laws of 2007, ch. 79, § 3.
The State argues that we should hold that the evidence is sufficient to support a finding of substantial bodily harm because Halter testified that he had a broken nose. But the trial court excluded all evidence of Halter's broken nose in adjudicating Sajjadi. The trial court stated that it would decide the matter in "the absence of basically the facts alleged in Exhibit 4, the medical testimony or medical records of the physician's office." RP at 157. Importantly, this is the evidence the State relied on during closing arguments to prove that Halter had a broken nose. And, although Halter attempted to testify that his doctor told him he had a broken nose, Sajjadi objected and the court sustained his objection.
Because this was a bench trial, we assume that the trial court disregarded hearsay, excluded irrelevant testimony, and considered only that evidence properly before the court. In re Welfare of Wilson, 91 Wn.2d 487, 490, 588 P.2d 1161 (1979); State v. Adams, 91 Wn.2d 86, 93, 586 P.2d 1168 (1978). Thus, we may not consider exhibit four or any testimony related to a broken nose because the trial court excluded that evidence. Finally, neither the trial court's oral or written findings state that Halter had a broken nose.
We consider, then, whether the trial testimony of swelling, bleeding, and pain qualifies as substantial bodily harm. The State relies on two cases to support its argument that Halter's injuries constitute substantial disfigurement: State v. Atkinson, 113 Wn. App. 661, 54 P.3d 702 (2002) and State v. Ashcraft, 71 Wn. App. 444, 859 P.2d 60 (1993). In Ashcraft, Division One found substantial bodily harm where evidence showed that the minor victim had bite marks on her body, as well as bruises "consistent with being hit by a shoe that had a rigid sole," "a cord or rope," and "a belt or ruler." Ashcraft, 71 Wn. App. at 449. But in addition, at trial, a witness testified that she had seen the defendant swing a shoe and a stick at the victim, and the victim's day care provider testified that the child once came to day care with bruises on her face. Ashcraft, 71 Wn. App. at 450.
In finding of fact five, the trial court also found that Halter suffered impaired breathing because of the incident. The evidence does not support this finding. Halter testified that his preexisting adenoid problem was the cause of his breathing problems.
In Atkinson, the defendant challenged the court's jury instruction defining "disfigurement." 113 Wn. App. at 666. In that case, William Atkinson struck Marilyn Paul, his live-in girlfriend, "without warning, threw her to the floor, and proceeded to beat and kick her," then "tore her clothes off, dragged her outside in the cold and rain, and locked her out." Atkinson, 113 Wn. App. at 665. When she returned to the house, Atkinson threw her against a window that broke and cut her arm, again tore off her clothes, and locked her outside again. "Ms. Paul was scraped and bruised, her eyes were black and blue, and the white of one eye had blood inside it, or a subconjuctival hemorrhage." Atkinson, 113 Wn. App. at 666. Division Three of this court held the evidence of bruising around Paul's eyes and of subconjuctival hemorrhaging was sufficient to sustain the trial court's jury instruction defining "disfigurement." Atkinson, 113 Wn. App. at 668.
Both cases are distinguishable. Halter's injuries are not comparable to the victims' injuries in Ashcraft and Atkinson and are insufficient to support a finding of substantial bodily harm. While the victims in Ashcraft and Atkinson were bruised, Halter's face was not bruised. Although Halter testified that his face was swollen, his testimony did not establish the extent of swelling. And because the trial court did not consider exhibit four, we have no medical evidence from which to consider Halter's injuries.
The State also argues that Sajjadi inflicted substantial bodily harm because Halter had a bloody nose and "really bad" pain after Sajjadi hit him. RP at 74. But the State had to prove substantial disfigurement or a fractured body part. Former RCW 9A.04.110(4)(b). The State does not cite, nor could we find, any case holding that minor swelling, pain, and blood constitute substantial bodily harm sufficient to support a conviction for second degree assault. Thus, while we do not doubt that Halter endured pain, we find that the State failed to prove that he suffered substantial bodily harm, a necessary element of second degree assault.
We hold that the evidence is insufficient to show that Halter suffered substantial bodily harm and the trial court's finding of fact five does not support its second conclusion of law, that Sajjadi committed second degree assault. See State v. Grewe, 117 Wn.2d 211, 218, 813 P.2d 1238 (1991) (factual findings are erroneous if not supported by substantial evidence).
Sajjadi also argues that the State did not produce sufficient evidence to prove that he behaved recklessly and that the trial court erred in so concluding. Because we find the evidence was insufficient to support a finding of substantial bodily injury, we do not reach these issues.
III. Fourth Degree Assault
We "may reverse, affirm, or modify the decision being reviewed and take any other action as the merits of the case and the interest of justice may require." RAP 12.2. "When the evidence is insufficient to convict of the crime charged, but sufficient to support conviction of a lesser degree crime, an appellate court may remand for entry of judgment and sentence on the lesser degree." State v. Atterton, 81 Wn. App. 470, 473, 915 P.2d 535 (1996); see also RCW 10.61.006, .010. "[T]he proper inquiry in such a case is `whether the jury necessarily found each element of the lesser included offense beyond a reasonable doubt in reaching its verdict on the crime charged.'" State v. Hughes, 118 Wn. App. 713, 731, 77 P.3d 681 (2003) (alteration in original) (quoting State v. Gamble, 118 Wn. App. 332, 336, 72 P.3d 1139 (2003), aff'd in part and rev'd in part, 154 Wn.2d 457, 470, 114 P.3d 646 (2005)); see also State v. DeRosia, 124 Wn. App. 138, 152 n. 22, 100 P.3d 331 (2004); Atterton, 81 Wn. App. at 473; State v. Gilbert, 68 Wn. App. 379, 384-85, 842 P.2d 1029 (1993).
RCW 10.61.006 provides that "the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information. And RCW 10.61.010 provides:
Upon the trial of an indictment or information, the defendant may be convicted of the crime charged therein, or of a lesser degree of the same crime. . . . Whenever the jury shall find a verdict of guilty against a person so charged, they shall in their verdict specify the degree . . . of which the accused is guilty.
Here, the trial court also was the trier of fact and necessarily found that Sajjadi committed fourth degree assault, a lesser included offense of second degree assault. We apply a two-part test to determine whether an offense is a lesser included offense of the greater offense. "First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed." State v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997).
We cannot determine here, whether the trial court necessarily found each element of third degree assault, a possible lesser included offense of second degree assault. A person commits third degree assault if he, "under circumstances not amounting to assault in the first or second degree . . . [w]ith criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering." RCW 9A.36.031(1)(f). The trial court made no factual findings about Sajjadi's state of mind when he committed the assault. Sajjadi did not concede that he acted with criminal negligence and neither party briefed the issue. The trial record does not support that the trier of fact, here the trial court, necessarily found that Sajjadi acted with criminal negligence, a necessary element of third degree assault. See Hughes, 118 Wn. App. at 731.
The State charged Sajjadi with second degree assault under former RCW 9A.36.021(1)(a), alleging that he "intentionally assault[ed] Jason Halter, and thereby recklessly inflict[ed] substantial bodily harm." A person may commit fourth degree assault by intentionally touching or striking another person in a way "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). Each of the fourth degree assault elements are necessary elements of second degree assault, the offense charged here. Therefore, the first, or legal prong, of the Berlin test is met.
Next, we must determine if the evidence in the case supports an inference that Sajjadi committed the lesser crime. The trial court found that Sajjadi "intentionally assault[ed] Jason Halter by hitting him repeatedly in the head." CP at 8. In addition, Sajjadi admitted that he hit Halter. Furthermore, Sajjadi's appellate counsel conceded that this court could remand for entry of adjudication on fourth degree assault. Here, it is undisputed that Sajjadi intentionally struck Page 10 Halter and, therefore, the evidence supports that he committed fourth degree assault, a lesser included offense of second degree assault.
We vacate Sajjadi's second degree assault adjudication. We remand to the trial court for entry of adjudication on fourth degree assault and for resentencing.
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.
BRIDGEWATER, J. and PENOYAR, J., concur