124 Wn. App. 322, State v. Gray

[No. 22316-7-III. Division Three. November 2, 2004.]

THE STATE OF WASHINGTON , Respondent , v. DARWIN MICHAEL GRAY , Appellant .

[1] Criminal Law - Trial - Taking Case From Jury - Sufficiency of Evidence - Test. The test for determining the sufficiency of the evidence supporting a criminal conviction is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In determining the sufficiency of the evidence, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.

[2] Criminal Law - Trial - Taking Case From Jury - Sufficiency of Evidence - Circumstantial Evidence. The elements of a crime may be established by either direct or circumstantial evidence; one type is no more valuable than the other.

[3] Assault, Criminal - Third Degree Assault - Assaulting Nurse, Physician, or Health Care Provider - Proof - Definitional Instruction - Necessity. In a prosecution for third degree assault under RCW 9A.36.031 (1)(h), it must be proved that the victim was a nurse, physician, or health care provider within the meaning of the statute. In a jury trial on the charge, the jury must be given an explanatory instruction based on the statutory definitions.

[4] Criminal Law - Trial - Instructions - Harmless Error - Elements of Crime - Test. Instructional error in a criminal trial that relieves the State of its burden of proving all of the elements of the crime charged beyond a reasonable doubt is not harmless error if the evidence in the record is insufficient to support the element that the State was relieved from proving.

[5] Criminal Law - Crimes - Elements - Identity of Perpetrator - Proof - Burden and Degree of Proof. The identity of a criminal defendant and the defendant's presence at the scene of the crime must be proved by the State beyond a reasonable doubt.

[6] Criminal Law - Crimes - Elements - Identity of Perpetrator - Proof - Sufficiency. In a criminal trial, the jury may infer the defendant's identity and presence at the scene of the crime from testimony by the arresting officer and the victim in which they identify the defendant from pictures admitted in evidence and from testimony by the victim describing how the defendant looked different in the picture from how the defendant looked at the time the crime was committed. Such evidence is sufficient to establish the defendant's identity beyond a reasonable doubt.[7] Criminal Law - Diminished Capacity - Evidence - Inference of Intent - Effect. When the evidence presented in a

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criminal trial is sufficient to support an inference that the defendant intended to commit the criminal act, the jury is free to disregard the defendant's claim of diminished capacity and find the defendant guilty of the charge.

[8] Criminal Law - Review - Reversal of Conviction - Guilty of Lesser Offense - In General. An appellate court that reverses a criminal conviction based on insufficient evidence in the record may remand the case for entry of a judgment of guilty to a lesser included offense, and for resentencing, if the jury was instructed on the lesser offense and there is sufficient evidence in the record to support a conviction of the lesser offense.

Nature of Action: Prosecution for third degree assault.

Superior Court: The Superior Court for Spokane County, No. 02-1-02914-1, Robert D. Austin, J., on August 15, 2003, entered a judgment on a verdict of guilty.

Court of Appeals: Holding that the State failed to prove that the victim of the assault was a health care provider as required by statute; but that there was sufficient evidence to establish the defendant's identity, presence at the scene of the crime, and intent; and that the record contained sufficient proof to find the defendant guilty of fourth degree assault, the court reverses the judgment and remands the case for entry of a judgment of guilty to fourth degree assault and for resentencing.

Susan M. Gasch , for appellant .

Steven J. Tucker , Prosecuting Attorney, and Kevin M. Korsmo and Andrew J. Metts III , Deputies, for respondent .

[As amended by orders of the Court of Appeals December 14, 2004, and January 18, 2005.]

<</noticeofamendment>¶1 KATO , C.J . - Darwin Gray was convicted of third degree assault for biting the finger of a nurse's assistant. Claiming the evidence was insufficient to support his conviction, Mr. Gray appeals. We agree and reverse.

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¶2 On October 24, 2002, Jennifer Scheel, a nursing assistant at Sacred Heart Medical Center, was working in the intensive care unit where Mr. Gray was a patient. In four-point restraints, he was banging his head against the bed rails swearing and yelling. Ms. Scheel tried to "redirect" Mr. Gray from being disruptive, but was unsuccessful. Report of Proceedings (RP) at 62.

¶3 Ms. Scheel entered Mr. Gray's room in order to put a pillow between his head and the bed rail in an attempt to keep him from hurting himself. Mr. Gray looked up at her and bit her hand.

¶4 Mr. Gray was charged with and convicted of third degree assault. This appeal follows.

[1, 2]¶5 He contends the evidence was insufficient to support his conviction. In reviewing a sufficiency of the evidence challenge, the test is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green , 94 Wn.2d 216 , 220-21, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas , 119 Wn.2d 192 , 201, 829 P.2d 1068 (1992). The elements of a crime may be established by either direct or circumstantial evidence, and one type is no more valuable than the other. State v. Thompson , 88 Wn.2d 13 , 16, 558 P.2d 202, appeal dismissed , 434 U.S. 898 (1977).

[3]¶6 Mr. Gray argues the State failed to establish that Ms. Scheel was a health care provider as defined in RCW 9A.36.031 (1)(h). The elements of third degree assault with which he was charged are (a) an assault (b) on a nurse, physician, or health care provider (c) who was performing his or her nursing or health care duties at the time of the assault. RCW 9A.36.031 (1)(h). " '[H]ealth care provider' means a person certified under chapter 18.71 or 18.73 RCW who performs emergency medical services or a person regulated under Title 18 RCW and employed by, or contracting with, a hospital licensed under chapter 70.41

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RCW." RCW 9A.36.031 (1)(h). The State elicited no testimony here that Ms. Scheel was a health care provider as defined in the statute.

¶7 The jury was instructed that, in order to convict Mr. Gray, it had to find Ms. Scheel was a nurse, physician, or health care provider performing her official duties at the time of the assault. The court, however, did not instruct the jury on the definition of a health care provider. The victim's status as a health care provider is an essential element of the crime. Defense counsel excepted to the court's refusal to give an instruction defining health care provider as set out in the statute. Without such an instruction, the State would be relieved of proving Ms. Scheel was a health care provider as defined in RCW 9A.36.031 (1)(h). When a question is presented involving these definitions, an explanatory instruction should be crafted. 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL § 35.23.04 cmt. (1998 Supp.). The court refused to give that instruction.

[4]¶8 Ms. Scheel testified she was certified by the state of Washington. There was no testimony, however, that she was indeed certified under Title 18 RCW. The State also produced no testimony on the statutory scheme under which she was certified. Furthermore, there was no evidence presented that Sacred Heart was licensed under chapter 70.41 RCW, as required by RCW 9A.36.031 (1)(h). In these circumstances, the State failed to establish by any evidence the essential element of the crime charged that the victim was a health care provider under the charging statute. The error was not harmless and requires reversal because the State was relieved of its burden to prove every element of the crime charged.

[5, 6]¶9 Mr. Gray claims the State did not prove that he was the person who bit Ms. Scheel's finger. The identity of a criminal defendant and his presence at the scene of the crime must be proven beyond a reasonable doubt. State v. Thomson , 70 Wn. App. 200 , 211, 852 P.2d 1104 (1993), aff'd , 123 Wn.2d 877 , 872 P.2d 1097 (1994). The defense admitted

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an exhibit that was a forward and side profile of Mr. Gray. The arresting officer testified the picture was Mr. Gray. Ms. Scheel was then shown a picture of Mr. Gray that was previously admitted as an exhibit. She agreed it was the defendant and described how he looked different from how he had in the hospital. From this evidence the jury could infer that Mr. Gray was the individual present at the crime scene. The evidence was sufficient to establish his identity beyond a reasonable doubt.

¶10 Mr. Gray also contends the evidence was insufficient to establish his intent. Mr. Gray claims that the evidence of his diminished capacity was overwhelming and established he lacked the ability to form the requisite intent, especially because he claims the State presented no evidence on intent. This claim is not supported by the record.

[7]¶11 Ms. Scheel testified that Mr. Gray specifically addressed her several times throughout the day when she would enter his room. He yelled at her on several occasions and told her to leave the room. She also testified that when she put the pillow behind his head he looked up at her and bit her. From this evidence the jury could infer the intent. Mr. Gray's defense of diminished capacity was presented to the jury. It chose to disregard it and convicted Mr. Gray. That was within its province to do. See State v. Walton , 64 Wn. App. 410 , 415-16, 824 P.2d 533, review denied , 119 Wn.2d 1011, 833 P.2d 386 (1992). The evidence was sufficient to establish intent.

[8]¶12 However, the jury was instructed on the lesser included offense of fourth degree assault. The evidence was sufficient to support a conviction for fourth degree assault. We reverse the conviction of third degree assault and remand for entry of an amended judgment of guilt of fourth degree assault. Mr. Gray shall be resentenced accordingly.

SCHULTHEIS and KURTZ , JJ ., concur .Reconsideration granted and opinion modified December 14, 2004 and January 18, 2005.

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