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State v. Aparis

September 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
RICHARD LEE APARIS, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-08388-7. Date filed: 05/15/95. Judge signing: Hon. Marilyn R. Sellers.

PER CURIAM. Richard Aparis appeals from his conviction following a bench trial for two counts of second degree assault. A commissioner of this court referred the matter for accelerated review pursuant to RAP 18.12. Concluding the court's findings of fact and Conclusions of law were not deficient, the evidence was sufficient to support a finding of intent, and there is no showing of error in calculating the offender score. We affirm the judgment and sentence.

FACTS

Carlena Jefferies and Danielle Peterson testified that Aparis approached them as they were returning to their house late on December 18, 1994. Ms. Jefferies testified she knew Aparis from previous encounters as "Rick." The women saw Aparis holding a gun in his hand. When Aparis stated he was looking for "Rudy," Ms. Peterson responded that Rudy was not there. Aparis then drew a second gun and stated that he had a "message for Rudy". Standing very close to them and holding a gun in each hand, he held one between the women's heads and one on the other side of Ms. Jefferies' head. Pointing the guns into the air, but close to their heads, he fired 10 or 12 shots. He continued firing into the air as he backed away. Both women were frightened by his actions, and Ms. Peterson testified she was afraid a bullet would strike someone in the house. Aparis then got into a van and drove away, and the women ran into the house.

A short time later, Seattle police, responding to a radio report of the shooting, stopped a gray van fitting the radio description. The police found Aparis in the driver's seat, read him his Miranda *fn1 rights and inquired whether there were any guns in the van. A police officer testified Aparis blurted out, "they're not mine" and "I don't have anything to do with the shooting." When police transported the women to where the van was stopped, they identified Aparis as the man who had done the shooting.

Police recovered two 9 mm guns from the van. A forensic witness testified that several 9 mm shell casings recovered from the scene of the shooting had been fired by the guns found in Aparis' van.

The court found Aparis guilty as charged of the two counts of second degree assault against the women. In its oral decision, the court stated:

The assault consisted of an act using unlawful force. His intention was to create in the two women a sufficient amount of fear so that they would convey that to Rudy. It did, in fact, create in them a fear. They were both scared. I think it is disingenuous to suggest that they weren't scared, having guns going off right near their head. Fear of -- imminent fear of bodily injury, even if he didn't intend to, and actually did not, inflict any bodily injury. He was armed with a deadly weapon and therefore is found guilty on both counts.

The court sentenced Aparis to a standard range sentence of 41 months on each count, to run concurrently.

DECISION

Aparis was charged under RCW 9A.36.021(1)(c) with assaulting the victims with a deadly weapon. The State must prove the defendant intended to create in the victim's mind a reasonable apprehension of harm. State v. Byrd, 125 Wash. 2d 707, 713, 887 P.2d 396 (1995). Aparis argues the trial court's failure to enter a written finding of fact on the essential element of intent is reversible error. This contention is without merit.

The court's failure to enter an express written finding on the element of intent is not reversible error because the oral findings sufficiently address this element. See State v. Bynum, 76 Wash. App. 262, 266 884 P.2d 10 (1994), review denied, 126 Wash. 2d 1012, 892 P.2d 1089 (1995). The court stated that Aparis intended to create in the victims sufficient fear that they would convey the threat to Rudy. In light of the oral decision, any failure to strictly comply with the requirement of written findings does not warrant remand. Next, Aparis argues the evidence was insufficient to support a conviction for assault in the second degree because Aparis made it clear to the women that he did not intend to place them in fear of harm. He contends that his instruction to give the "message to Rudy" conveyed to the women that he was not going to harm them.

This contention is without merit. The test is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980). The evidence in the case meets this test. Aparis held two guns close to the victims' heads and fired approximately ten rounds. A rational trier of fact could find beyond a reasonable doubt from this evidence that Aparis assaulted the victims with a deadly weapon, thereby intending to create in the victims a reasonable apprehension of bodily harm.

Aparis argues in his pro se brief that the trial court failed to "enter written, or oral findings of law as to counsel's request for suppression hearings in accordance with court rule CrR 3.6." This contention is also without merit. In its comprehensive written findings the court included express findings of fact and Conclusions of law regarding the suppression hearing. As Aparis has not assigned error to these findings and Conclusions, they are deemed verities on appeal. State v. Johnson, 75 Wash. App. 692, 695, 879 P.2d 984 (1994), review denied, 126 Wash. 2d 1004 (1995).

Although his brief is not clear, Aparis also appears to challenge the adequacy of the oral findings following the suppression hearing. A party may not assign error to the oral findings of the trial court. El Cerrito ...


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