Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41321-3-II

                             Respondent,
                                                           UNPUBLISHED OPINION
       v.

A.M.T.,1

                             Appellant.

       Armstrong, J.  --  A.M.T. challenges the sufficiency of the evidence in her juvenile 

adjudication of third degree assault of a law enforcement officer performing his official duties. 

Viewed in the light most favorable to the State, we are satisfied that the evidence was sufficient to 

prove the assault.  We affirm.

                                            FACTS

       One day in June 2010, A.M.T. and her mother, J.T.,2 argued after J.T. kicked out 

A.M.T.'s boyfriend who had lived with them for eight months.  A.M.T. was upset and J.T. called 

police hoping they could calm her down.

1 Under RAP 3.4, this court changes the title of the case to the juvenile's initials. This court uses 
initials to protect the juvenile's rights to confidentiality.

2 This court uses initials when referring to appellant's relatives to protect the appellant's 
confidentiality. 

No. 41321-3-II

       Pierce County Sheriff's Deputy Brian Heimann responded to J.T.'s call.  He arrived at the 

scene in uniform and attempted to take separate statements from A.M.T. and J.T.       The three 

stood outside near a driveway along with A.M.T.'s boyfriend.

       While Deputy Heimann spoke with J.T., A.M.T. repeatedly interrupted, stating that she 

knew her "rights."  Report of Proceedings (RP) (Aug. 31, 2010) at 45.  Deputy Heimann then 

approached A.M.T., who stood less than five feet away.  A.M.T. told the deputy to get out of her 

"space." RP (Aug. 31, 2010) at 15.  At that point, A.M.T.'s boyfriend asked Deputy Heimann if 

he could try to calm A.M.T. down.  Deputy Heimann agreed and went back to talking with J.T.

       The parties dispute what happened next.  Deputy Heimann testified that as he spoke to 

J.T., he saw A.M.T. clench her fists and tell her boyfriend, "I am going to kick his ass." RP (Aug. 

31, 2010) at 16, 19, 25-26.  Deputy Heimann stood 15 - 20 feet away and testified that he felt 

A.M.T. had the ability to harm him.  He believed A.M.T.'s comment was directed at him.  He 

walked back toward A.M.T., grabbed her by the right wrist, and started to lead her to his police 

car.  He told her, "Let's go to the car and calm down." RP (Aug. 31, 2010) at 17. 

       Deputy Heimann testified that A.M.T. screamed and tried to break free.  She slapped him 

on the arm he used to lead her to the car.  A.M.T. then swung her left hand back toward Deputy 

Heimann's head. RP (Aug. 31, 2010) at 17, 28.  When A.M.T. swung with an open hand, Deputy 

Heimann moved his head to the left to avoid being hit.  She struck the bill of his hat.  The State 

admitted Deputy Heimann's hat with alleged scratches from A.M.T.'s fingernails into evidence at 

trial.  Deputy Heimann employed a straight arm bar takedown to subdue A.M.T. after she struck 

his hat.

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No. 41321-3-II

       The trial judge found that A.M.T. swung at Deputy Heimann and knocked off his hat.  

"She didn't follow directions, and for whatever reason she felt that she could have things done her 

way," the trial judge said.  "I got the sense that she was out of control and just didn't have respect 

for the officer." RP (Sept. 2, 2010) at 65. The trial judge found A.M.T. guilty "because of just 

that gesture" of striking Deputy Heimann's hat.  RP (Sept. 2, 2010) at 65.

                                          ANALYSIS

                                     I. Standard of Review

       In reviewing a challenge to the sufficiency of evidence, we view the evidence in the light 

most favorable to the State and ask whether any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.  State v. Salinas, 119 Wn.2d 192, 201, 

829 P.2d 1068 (1992).   We draw all reasonable inferences from the evidence in the State's favor 

and interpret them most strongly against the defendant.  Salinas, 119 Wn.2d at 201. We defer to 

the trier of fact on issues of conflicting testimony, witnesses'credibility, and the persuasiveness of 

the evidence.  State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in part 

on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 

(2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).

                              II. Sufficiency of Evidence  --  Intent

       A.M.T argues that the State failed to prove that she had the specific intent required in an 

attempted battery assault.  While A.M.T. asserts that she never threatened Deputy Heimann and 

any swinging of her arm was in response to the deputy's use of force, the State argues that if 

A.M.T. was only trying to pull away from Deputy Heimann, she would not have swung with 

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No. 41321-3-II

enough force to knock off his hat. 

       The trial court convicted A.M.T. of third degree assault, a class C felony, under RCW 

9A.36.031(1)(g).3 Because assault is not defined in the statute, we resort to the common law for 

its definition.  State v. Byrd, 125 Wn.2d 707, 712, 887 P.2d 396 (1995) (citing Peasley v. Puget 

Sound Tug & Barge Co., 13 Wn.2d 485, 504, 125 P.2d 681 (1942)).  Courts recognize three 

types of assault  --  actual battery, attempted battery, and putting another in apprehension of harm.  

Byrd, 125 Wn.2d at 712-13; State v. Frazier, 81 Wn.2d 628, 630-31, 503 P.2d 1073 (1972); 

State v. Krup, 36 Wn. App. 454, 460, 676 P.2d 507 (1984).        The long-standing definition of 

"attempted battery assault" is  "'an attempt, with unlawful force, to inflict bodily injury upon 

another, accompanied with the apparent present ability to give effect to the attempt if not 

prevented.'"  Byrd, 125 Wn.2d at 712 (quoting Howell v. Winters, 58 Wash. 436, 438, 108 P. 

1077 (1910)); 11 Washington Practice: Washington Pattern Jury Instructions: Criminal § 35.50, 

at 547 (3d ed. 2008).

       Specific intent is an essential element to all forms of assault.  State v. Eastmond, 129 

Wn.2d 497, 500, 504, 919 P.2d 577 (1996), overruled on other grounds by State v. Brown, 147 

Wn.2d 330, 340, 58 P.3d 889 (2002).  To commit assault, a person must have intended to cause 

bodily harm or to create an apprehension of bodily harm.  State v. Williams, 159 Wn. App. 298, 

307, 244 P.3d 1018 (2011) (citing Byrd, 125 Wn.2d at 713, 887 P.2d 396).  We can infer the 

3 RCW 9A.36.031(1)(g) provides:
(1) A person is guilty of assault in the third degree if he or she, under circumstances not 
amounting to assault in the first or second degree:
       . . . .
       (g) Assaults a law enforcement officer or other employee of a law enforcement 
       agency who was performing his or her official duties at the time of the assault. . . . 

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No. 41321-3-II

specific criminal intent of the accused from her conduct.  State v. Delmarter, 94 Wn.2d 634, 638, 

618 P.2d 99 (1980).  

       The trial judge convicted A.M.T. because she struck Deputy Heimann's hat with the intent 

to inflict bodily harm. We previously affirmed the third degree assault conviction of a defendant 

who repeatedly tapped the arresting officer on the head as he drove the defendant to jail.  State v. 

Johnson, 29 Wn. App. 307, 308, 311, 628 P.2d 479 (1981).  The defendant testified that he was 

not trying to be threatening but merely insulting. Johnson, 29 Wn. App. at 309.  And the officer 

was not physically harmed by the assault.  Johnson, 29 Wn. App. at 309.  We reasoned that 

although Johnson asserted his actions were meant to be insulting, his conduct hindered his 

"peaceful and orderly" custody and amounted to unlawful behavior.     Johnson, 29 Wn. App. at 

311 (citing State v. Jury, 19 Wn. App. 256, 269, 576 P.2d 1302 (1978)).  Here, A.M.T.'s conduct 

was similar. 

       Moreover, we can infer A.M.T.'s specific intent by considering the events before and after 

the alleged assault.  Recently, Division One affirmed the conviction of a defendant who stabbed an 

officer with a pair of medical scissors and challenged the sufficiency of the evidence for his third 

degree assault conviction.  Williams, 159 Wn. App. 298.  The court held that it could infer the 

defendant's intent from the circumstances.    Two officers testified that the defendant looked 

toward them as they approached from behind and held the scissors in his fist with the point aimed 

downward.  Williams, 159 Wn. App. at 307.  The defendant repeatedly stabbed one officer, 

attempted to conceal the weapon after the attack, and continued to be aggressive toward the 

officers after being arrested.  Williams, 159 Wn. App. at 307-08.  The court held that a jury could 

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No. 41321-3-II

reasonably infer from the evidence that Williams was aware that two men were approaching him, 

that he was holding the scissors as a weapon, and that the stabbings were intentional. Williams, 

159 Wn. App. at 308.

       Similarly, we can infer from the surrounding circumstances that A.M.T. intended to harm 

Deputy Heimann.  A.M.T. was confrontational throughout her exchanges with Deputy Heimann.  

RP (Aug. 31, 2010) at 30.  She told Deputy Heimann, "Don't talk to me. You don't have the 

right to talk to me," and also challenged him to "[j]ust f[******] arrest me!  Take me to jail 

then!" Clerk's Papers (CP) at 6.  She was yelling and pulling away as Deputy Heimann led her to 

his police car to cool down.  And she slapped Deputy Heimann once on the arm before swinging 

her arm backward toward his head.  The trial judge found Deputy  Heimann credible and 

characterized A.M.T.'s behavior as "aggressive."    CP at 7.  This evidence supports the trial 

court's conclusion that A.M.T. intended to strike Deputy Heimann when she swung her arm 

toward his head.  Accordingly, the State presented sufficient evidence that A.M.T. intended to 

harm Deputy Heimann - a necessary element of the assault for which she was convicted.

                       III. Sufficiency of the Evidence  --  Present Ability

       A.M.T. argues that the State failed to prove that she had the present ability to inflict 

bodily injury on Deputy Heimann.    We agree with A.M.T. that the State had to prove "present 

ability" as an element of the assault charge. Byrd, 125 Wn.2d at 712 (citing Howell, 58 Wash. at 

438).   

       Washington courts have not defined "present ability,"         but they   have described 

circumstances sufficient to establish "present ability." These include "raising of the hand in anger, 

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No. 41321-3-II

with an apparent purpose to strike, and sufficiently near to enable the purpose to be carried into 

effect . . . ."  Peasley, 13 Wn.2d at 505.    

       Deputy Heimann testified that he felt A.M.T. had the ability to harm him.  When asked to 

explain he answered, "She is a capable person that can swing or hit me."  RP (Aug. 31, 2010) at 

29. He testified that she raised her hand and swung at him and that he had to move his head to 

avoid the blow. Finally, he had to execute a take-down move on A.M.T. before handcuffing her 

and putting her in the car. Viewed in the light most favorable to the State, this evidence was 

sufficient to prove that A.M.T. had the present ability to injure Deputy Heimann. 

       Affirmed.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                 Armstrong, J.
We concur:

Quinn-Brintnall, J.

Penoyar, C.J.

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