Appeal from Superior Court of King County. Docket No: 95-8-02433-7. Date filed: 07/21/95. Judge signing: Hon. Charles V. Johnson.
Authored by Ronald E. Cox. Concurring: H. Joseph Coleman, Mary K. Becker.
The opinion of the court was delivered by: Cox
COX, J. -- Robert and Trevor Hutchison challenge the sufficiency of the evidence in their adjudications on the first of two counts of fourth degree assault. Robert also claims that the juvenile court's written findings on counts I and II violated JuCR 7.11(d). Because the written findings on Robert's adjudication on count II were adequate but there was insufficient evidence to find either Trevor or Robert guilty of count I, we affirm in part and reverse in part.
Count I for each juvenile was based on an incident on August 6, 1994. Stanley Steplewski was in his back yard with his son when he saw a rock the size of an egg come sailing over the nearby playhouse. The rock bounced off a wooden gym set and hit him in the leg. Stanley did not see who threw the rock. But through the chain-link fence in the direction from which the rock came, he did see Robert, Trevor, and another boy fleeing toward the other boy's house.
Count II for each juvenile was based on an incident four days later. At approximately 6:00 p.m. that day, Henryka Steplewski, Stanley's wife, was sitting in the gazebo in her back yard. She was alone. Both Hutchisons and two other boys came walking by and began repeatedly calling her a "Polish sausage." All of the boys threw rocks at her. She ducked, and none of the rocks hit her.
The State charged each of the Hutchisons with two counts of fourth degree assault, one for each incident. At the Conclusion of the fact-finding hearing, the juvenile court found both boys guilty on each count. The Hutchisons appeal.
Sufficiency of the Evidence
The Hutchisons challenge the sufficiency of the evidence to support their adjudications on count I, which was based on the August 6 incident. When one challenges the sufficiency of the evidence, our inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" *fn1 A reviewing court "need not itself be convinced beyond a reasonable doubt." *fn2 For purposes of a challenge to the sufficiency of the evidence, the appellant admits the truth of the State's evidence and all inferences that can be reasonably drawn from it. *fn3
RCW 9A.36.041(1) provides, "A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another." We have stated that there are three ways to commit 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." *fn4
Count I was based on the third method. The evidence for that count establishes that the Hutchisons and one other boy were present during the rock throwing on August 6. But Stanley Steplewski testified that he did not see who among the three threw the rock that hit him. All that he saw was the Hutchisons and another boy standing at the point from which the rock must have been thrown and then running away.
This evidence is insufficient to establish the identity of who among the three boys actually threw the rock. The State argues that the boys' flight from the incident is circumstantial evidence of their guilt. *fn5 But the fact that all three boys fled does nothing to establish which of them threw the rock that hit Steplewski. Thus, there is insufficient evidence to establish principal liability for the crime of fourth degree assault.
In the absence of liability as a principal, the question is whether the Hutchisons are liable as accomplices. To prove accomplice liability, the State must demonstrate that "with knowledge that it will promote or facilitate the commission of the crime, [the defendant] (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it." *fn6 Testimony at the fact-finding hearing conclusively establishes that the Hutchisons were present at the crime scene. But mere presence, even when coupled with assent to the crime, is insufficient to establish accomplice liability. *fn7 The State must also show that the defendant was ready to assist in the crime. *fn8 Flight from a crime scene is not probative of readiness to assist.
The State also argues that the Hutchisons' yelling "Polish sausage" at Henryka four days later is probative of their motive, opportunity, intent, and knowledge regarding the assault on Stanley. Subsequent acts can be probative of intent in prior charged conduct. *fn9 But the connection between shouting ethnic epithets and throwing rocks four days earlier is too attenuated to be a sufficient basis for a ...