Appeal from Superior Court of Snohomish County. Docket No: 96-8-00729-3. Date filed: 07/19/96. Judge signing: Hon. James H. Allendoerfer.
PER CURIAM. M.L. challenges his conviction for second degree assault, contending the State failed to present sufficient evidence to support the trial court's finding he was armed with a deadly weapon. The issue is whether the evidence established that M.L. threatened to use a knife under circumstances making it readily capable of causing death or substantial bodily injury. We find that it did and affirm the conviction.
The victim testified he and M.L. were outside during a lunch break at school when M.L. asked him for his soda pop. The victim said no, then M.L. said, "Give me your pop." The victim again said no. M.L. then pulled a knife from his pocket and held it up to the victim from about a foot away. M.L. again said, "give me your pop." M.L. did not say he was just kidding or fooling around. The victim ran as fast as he could to get away from M.L. because he was afraid M.L. might stab him. M.L. ran behind him, holding the knife with the point down near his (M.L.'s) knee. The victim ran into his classroom and sat down. Although his teacher was in the classroom, the victim did not tell him about the incident, explaining, "I didn't feel like I was going to get harmed that much."
M.L. testified he brought the knife to school and showed it to several students to impress them. He said he asked the victim for his pop and the victim said no. He then said, "give me your pop," and pulled out his knife. The victim backed up and commented on the knife, then M.L. told him he was "just playing" and put the knife back in his pocket. He denied the victim ran away and that a chase ensued.
Police Officer Michael Ingram testified he responded to a report of an assault with a weapon at the school. He met with M.L. and the principal. The principal gave Ingram the knife and Ingram arrested M.L. Ingram said the knife, because of its 2.5-inch, serrated-edged blade, was capable of causing serious injury or death. He later spoke with M.L., who admitted to waving the knife toward some other students during the day. M.L. stated repeatedly he had no intent to hurt anyone with the knife.
The trial court found M.L. guilty of assaulting the victim with a deadly weapon based on the incident involving the demand for the victim's pop, not on the alleged chase thereafter. The pertinent finding of fact, to which M.L. assigns error, is as follows:
The knife used at the time of the demand for pop was a deadly weapon. It was used as a deadly weapon in the context of a threat.
[Victim] was asked for a pop. When the demand was refused the knife was brandished. The knife was meant to intimidate and scare [victim].
It was a deadly use of the knife. A knife is a deadly weapon if it is meant to scare someone. There is a second degree assault because [victim] was reasonably scared by the incident.
The court found M.L. guilty of committing second degree assault under RCW 9A.36.021(1)(c), assaulting another with a deadly weapon. On appeal, M.L. concedes the state presented evidence sufficient to prove fourth degree assault, but did not prove the deadly weapon element necessary to elevate the offense to the second degree.
A weapon can be per se deadly (i.e., explosives and firearms), or deadly because it is readily capable of causing death or substantial bodily harm under the circumstances in which is it used, attempted to be used, or threatened to be used. *fn1 "Substantial bodily harm" means bodily injury involving temporary but substantial disfigurement, or causing a temporary but substantial loss or impairment of a bodily or organ function of any bodily part or organ, or causing a fracture of any bodily part. *fn2
M.L. acknowledges the knife was inherently capable of causing the requisite bodily injury. He contends, however, the circumstances in which he used the knife were insufficient to support the court's finding it was a deadly weapon. More specifically, M.L. argues that merely displaying the knife one foot from the victim -- as opposed to actually stabbing the victim, *fn3 holding the knife blade against his throat, *fn4 lunging or swinging at him, or even pointing the knife at him -- is not a circumstance that makes the knife a deadly weapon.
In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. *fn5 The trial court found that M.L. displayed the knife, and held it one foot away from the victim, in order to enforce his demand for the victim's pop. M.L. does not challenge this finding, which is supported by his own testimony. Because M.L. displayed the knife while demanding the pop and only after the victim refused to comply, the same testimony supports the court's challenged finding that the knife "was used as a deadly weapon in the context of a threat."
An item qualifies as a deadly weapon where, under the circumstances in which it is "threatened to be used," it is readily capable of causing substantial bodily injury. *fn6 A defendant must, however, manifest some willingness to use the knife. *fn7 We find Gotcher analogous to the instant facts. The relevant issue was whether there was sufficient evidence to prove he was "armed with a deadly weapon," to elevate second degree burglary to the first degree. *fn8 It was undisputed Gotcher had a switchblade knife in his pocket while he committed the burglary. This court found the knife was a deadly weapon from the following evidence: 1) when apprehended, Gotcher moved his hand toward his right coat pocket; 2) he "fumbled" with something on his right side; 3) he disregarded several commands to place his hands on the wall; 4) the safety was off the switchblade and the knife was partially opened when an officer removed it from Gotcher's pocket. *fn9
In M.L.'s case, there is much more evidence of willingness to use the weapon to threaten the victim in a manner rendering the knife capable of causing substantial bodily injury. Not only did M.L. retrieve the knife and display it only a foot from the victim, he did it while demanding the pop. Although M.L. said he told the victim he was "just playing," the court was not obligated to believe him, especially in light of the victim's testimony that M.L. made no such statement and that he ran because he thought M.L. might stab him. When viewing the evidence in the light most favorable to the state, ...