Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                         )
                                            )      No. 65915-4-I
                      Respondent,           )
                                            )         DIVISION ONE
              v.                            )
                                            )
DAVID JOHN NORDVALL ,                       )
aka JOHN DAVID NORDVALL,                    )         
                                            )       UNPUBLISHED OPINION
                      Appellant.            )         
                                            )       FILED: March 12, 2012
________________________________)

       Becker, J.  --  Officers who were trying to arrest appellant David Nordvall 

could not get him to come out of his house.  Outside the bedroom where 

Nordvall was barricaded, officers heard a shot and one of them felt something hit 

his bicep protector.  When the officers entered the bedroom, Nordvall was the 

only person there, and there was a pellet gun on the floor.  This was sufficient 

evidence of an assault with the specific intent to harm.  We affirm the jury's 

verdict finding Nordvall guilty of third degree assault.

                                        FACTS

       According to testimony at trial from law enforcement officers, King County  

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Sheriff deputies went to Nordvall's home on September 8, 2009, after they were 

notified there was probable cause to arrest him for threats.  The deputies 

knocked on the front door and announced who they were.  Nordvall peeked out 

a window near the door.  The officers asked Nordvall to step outside so they 

could talk to him.  Nordvall told the officers they were trespassing and asked 

them to leave.  The officers left and obtained a warrant.  A special weapons and 

tactics (SWAT) team was dispatched and arrived at Nordvall's residence at 

about 10:15 p.m.  They received information that Nordvall had been trying to get 

a gun from a neighbor and that he possessed edged weapons in his home. 

       The SWAT team set up floodlights and secured the street.  Using a public 

address system in an armored vehicle, a negotiator attempted to talk to Nordvall.  

Nordvall did not respond.  The officers proceeded to break windows in the 

house.  They threw a phone into the house.  Nordvall did not pick it up.  The 

officers shot tear gas and pepper spray into the home.  Nordvall retreated to his 

bedroom.  

       SWAT members entered and secured the house.  In the room adjoining 

Nordvall's bedroom, Deputy Bryan Pacey made a hole in the wall so that they 

could see where Nordvall was, what he was doing, and what kind of barricade he 

had constructed.  As Deputy Pacey was doing this, the officers heard a pop and 

one officer saw a spray of sheetrock.  Deputy Pacey felt something hit him in the

right shoulder, which was covered by a bicep protector.  The officers backed out 

of the room.  Near the hole made by Deputy Pacey, they could see a smaller 

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hole the same diameter as a pistol round. 

       Officers eventually entered Nordvall's bedroom at about 6:00 a.m.  They 

found Nordvall in the closet under a blanket.  They secured him after a brief 

struggle.  Officers found a pellet rifle in the room along with pellets on the floor.  

They did not recover the pellet they thought was fired.

       Nordvall testified that he did not make the threats that he was accused of.  

He said he did not hear the SWAT team arrive and woke up to the sound of 

breaking glass.  He suspected it was an unfriendly neighbor, so he barricaded 

himself in his bedroom.  He claimed he did not learn it was the police until they 

were in his room.  He denied shooting or pointing a pellet gun at police officers.  

       Nordvall contends there was insufficient evidence to convict him of third 

degree assault.  

       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, assaults a 

law enforcement officer who was performing his or her official duties at the time 

of the assault.  RCW 9A.36.031(g).  An essential element of assault is that the 

actor had the specific intent to cause harm or to create an apprehension of 

harm.  State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). The jury was 

so instructed through an instruction defining assault. Nordvall argues there is 

insufficient evidence of the element of specific intent.

       The test for determining the sufficiency of the evidence is whether, after 

viewing the evidence in the light most favorable to the State, any rational trier of 

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fact could have found guilt beyond a reasonable doubt.  State v. Salinas, 119 

Wn.2d 192, 201, 829 P.2d 1068 (1992).  When the sufficiency of the evidence is 

challenged in a criminal case, all reasonable inferences from the evidence must 

be drawn in favor of the State and interpreted most strongly against the 

defendant. Salinas, 119 Wn.2d at 201.  A claim of insufficiency admits the truth 

of the State's evidence and all inferences that reasonably can be drawn 

therefrom.  Salinas, 119 Wn.2d at 201.  Although Nordvall testified that he did 

not fire at the officers and was not trying to harm them, the jury was not required 

to believe his testimony.  Credibility determinations are for the trier of fact and 

cannot be reviewed on appeal.  State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 

850 (1990).

       No one saw Nordvall discharge a weapon at the officers.  The officers did 

not find a discharged pellet.  There was no evidence that the pellet gun was 

operable or capable of penetrating through sheetrock.  Nordvall argues that 

without such evidence, the State failed to prove he fired the gun at the officers

with the specific intent to harm them or create apprehension of harm.

       In support of this argument, Nordvall cites three cases in which this court 

rejected challenges to the sufficiency of the evidence:      State v. Oakley, 158 Wn. 

App. 544, 242 P.3d 886 (2010), review denied, 171 Wn.2d 1021 (2011); State v. 

Mann, 157 Wn. App. 428, 237 P.3d 966 (2010); and State v. Pedro, 148 Wn. 

App. 932, 201 P.3d 398 (2009), review denied, 169 Wn.2d 1007 (2010).

Nordvall points out that in these cases, at least one witness saw the defendant 

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fire or attempt to fire a gun.  These cases are not helpful, however, because 

none of them hold that proving a charge of assault with a gun depends on 

presenting an eyewitness who saw the defendant holding the gun.  

Circumstantial evidence may be sufficient.  

       When viewed in the light most favorable to the State, the evidence was 

sufficient to prove Nordvall fired the gun at the officers with the intent to harm 

them or create apprehension of harm. Nordvall refused to cooperate with 

officers attempting to secure his arrest.  Nordvall was the only person in the 

room with the pellet gun.  The gun and pellets were found in the room with 

Nordvall.  As Deputy Pacey was making a hole in the wall, the officers heard a 

popping sound.  Pacey felt something hit his arm.  Officers saw a small hole 

near the hole Deputy Pacey had been making. Pacey testified the hole was 

consistent with a hole left by a projectile fired from a pellet gun.  Deputy Scott 

Click testified he was familiar with pellet rifles and that a fired projectile can 

penetrate skin and muscle tissue. From this circumstantial evidence, the jury 

could rationally infer that Nordvall purposefully fired at police officers and 

intended to harm them or create apprehension of harm.

       Affirmed.

WE CONCUR:

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