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State v. W.M.

March 17, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
W.M., B.D. 04-13-79, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-00399-2. Date filed: 12/22/95. Judge signing: Hon. Eric Watness.

PER CURIAM. -- W.M. appeals his conviction in juvenile court of fourth degree assault, arguing that it was not supported by sufficient evidence.

W.M. also argues that the victim's apprehension and fear of bodily injury was unreasonable because no gun was found. Because the evidence was sufficient that the victim's fear of bodily injury was reasonable under the circumstances, we affirm.

On November 24, 1994, at about 8:15 p.m., Ray Akers and Nicolas Sumpter were walking their dog in Seattle. From the corner of Rainier Avenue and Hudson Street, Akers first saw W.M. and Jaren standing on the corner of South 37th Avenue and Hudson. As Akers and Sumpter walked north on Rainier, W.M. and Jaren also walked north on South 37th. After several blocks, Sumpter and Akers stopped at a telephone booth to make a call.

W.M. and Jaren stopped and watched them.

After making the call, Sumpter and Akers headed south. W.M. and Jaren also headed south. Akers momentarily lost sight of the two. When he saw them again at an alley, he told Sumpter, "These kids are following us."

When Akers turned to look at them, W.M. lifted his sweatshirt, reached into his waistband area and held what appeared to be a small gun. He held the gun next to his crotch and crouched with his legs spread open. W.M. was then approximately 40 feet away from Akers and Sumpter.

Akers and Sumpter went into a tavern to call the police. When no officers arrived, they left. Several blocks later they again noticed W.M. and Jaren about 20 feet behind them. W.M. lifted his sweatshirt and pulled out a gun with a rectangular barrel. Sumpter saw the gun and testified he was afraid that W.M. would mug or assault him. Akers and Sumpter ran across the street to get away from W.M., and heard one of them say, "Where are you going? Hey, you wanna do--."

Sumpter went into a private club to call the police for the second time. When the police arrived, they arrested W.M. and Jaren. Neither was carrying a gun at that time. W.M. denied he ever had a gun and testified that he was holding a can.

The State charged W.M. with fourth degree assault. He argues that there was insufficient evidence to prove the charge. In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

State v. Green, 94 Wash. 2d 216, 221-22, 616 P.2d 628 (1980). The defendant admits the truth of the State's evidence, and all inferences from it must be drawn in favor of the State and interpreted against the defendant.

State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).

Washington courts recognize three ways of committing fourth degree assault: (1) intending to inflict bodily injury on another, accompanied with the apparent present ability to do so; (2) intentionally creating in another person reasonable apprehension and fear of bodily injury; and (3) intentionally committing an unlawful touching, regardless whether physical harm results. State v. Davis, 60 Wash. App. 813, 821, 808 P.2d 167 (1991), aff'd, 119 Wash. 2d 657, 835 P.2d 1039 (1992). In this case, the State relied on the intentional creation of fear theory of assault.

The facts set out above, when taken as a whole, are sufficient to establish that Sumpter had a reasonable apprehension of bodily injury.

After following Akers and Sumpter for 20 minutes, W.M. confronted Sumpter and appeared to be displaying a weapon. At 20 feet away, Sumpter was able to identify the gun as having a rectangular barrel. Earlier that evening, Akers also saw W.M. display what appeared to be a weapon. In addition to these two apparent threats, the comment "Where are you going? Hey, you wanna do--" and W.M.'s crouched position are sufficient to establish that a reasonable person would fear bodily injury. The court could properly infer W.M.'s intent from his actions. He twice displayed a weapon and followed Akers and Sumpter for over 20 minutes. Taking all reasonable inferences in the light most favorable to the State, ...


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