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.  41938-6-II

                             Respondent,                   UNPUBLISHED OPINION

       v.

KENNY W. STEVENS,

                             Appellant.

       Armstrong, J.  --  Kenny Stevens appeals his conviction of third degree assault, arguing 

that his conviction is not supported by sufficient evidence.  He also argues that the trial court 

exceeded its statutory authority when it sentenced him to two years of probation for his 

misdemeanor malicious mischief conviction.  The State concedes error as to his second argument.  

Concluding that the State presented sufficient evidence to convict Stevens of third degree assault, 

we affirm his conviction but remand to the trial court for correction of Stevens's misdemeanor 

judgment and sentence.1

                                            FACTS

       On November 13, 2010, Stevens's girlfriend, Leslie Jo Boedeker, was refinishing an 

apartment in the complex where she and Stevens lived.  Boedeker managed the apartment 

complex.  Stevens entered the apartment where Boedeker was working and asked her to purchase 

cigarettes for him.  Boedeker responded that she was busy, but that she would buy the cigarettes 

"in a minute." Report of Proceedings (RP) at 22.  Stevens left, but returned later and asked for 

1 A commissioner of this court initially considered Stevens's appeal as a motion on the merits 
under RAP 18.14 and then transferred it to a panel of judges. 

No. 41938-6-II

Boedeker's automated teller machine (ATM) card.  Boedeker told him she would not give him 

the ATM card, but again said that she would buy him the cigarettes "in a minute."     RP at 22.  

Stevens then kicked a cabinet and left the apartment, returning to the unit he shared with 

Boedeker.

       Boedeker purchased cigarettes and returned to the apartment where she lived.  When she 

arrived, she heard crashing noises.  Walking in, she saw broken coffee cups and spilled coffee.  

Boedeker also saw a broken vase in the bedroom.  Stevens approached Boedeker and put his 

hands on her neck.  The force caused a necklace Boedeker was wearing to break.  In response, 

Boedeker hit Stevens with a hammer she was holding.  At some point during the scuffle, Stevens 

kicked Boedeker in the hand.  At the time of the incident, Stevens wore Harley Davidson boots.  

A worker performing maintenance on another apartment could hear Boedeker screaming for help.

       After being kicked, Boedeker called 9-1-1.  Boedeker told the operator that Stevens 

"kicked [her] with his foot" and "just broke [her] hand," and that Stevens "hurt [her] hand so 

bad." RP at 39, 41, 46.  She further said, "I just want him out of here.  Oh my God, you have 

hurt my hand.  He comes out here and tries to choke me and threaten me and -- and then he 

kicked me with his combat boots on." RP at 42.

       When police responded to the incident, they noticed that Boedeker was in a great deal of 

pain.  Maneuvering her body to allow the police to take pictures of her injuries caused her to 

grimace.  A responding Vancouver Police Officer, Joann Gibson, noticed that Boedeker's hand 

appeared swollen.

       Four days after the incident, Vancouver Police Officer Michael Day and his supervisor, 

                                               2 

No. 41938-6-II

Sergeant Davis, arrived at Boedeker's apartment to investigate the incident.  When they arrived at 

Boedeker's apartment, she was wearing an Ace bandage on her right wrist.  She told Officer Day 

she wore the bandage because of the injury Stevens inflicted when he kicked her.  Boedeker gave 

a statement to Sergeant Davis but she could not write because her right hand hurt, so Sergeant 

Davis wrote the statement and she signed it with her left hand.

       The State charged Stevens with second degree felony assault (domestic violence), third 

degree  felony assault (domestic violence), and third degree misdemeanor malicious mischief

(domestic violence).  At trial, Boedeker testified that she was in pain following the kick to her 

hand, and that at the time she thought her "thumb had fallen off." RP at 36.  She testified that it 

took "a lot of weeks" for her hand to feel normal again, and that she could not use her hand for 

"quite a while" following the incident.  RP at 37.  After a bench trial, the court convicted Stevens 

of  third degree assault (domestic violence) and third degree malicious mischief (domestic 

violence).  The trial court sentenced him to 51 months of incarceration and 9 months of 

community custody on the conviction for third degree assault.  On the malicious mischief 

conviction, the misdemeanor judgment and sentence stated that the trial court sentenced Stevens 

to 365 days of confinement.  The court also imposed 24 months of probation but failed to check 

either of two boxes, which would have indicated if the term of incarceration was suspended or 

deferred.

                                          ANALYSIS

                            I.  Sufficiency of the Evidence of Assault

       Stevens contends that the State presented insufficient evidence to convict him of third 

                                               3 

No. 41938-6-II

degree assault.  Evidence is sufficient if, when viewed in a light most favorable to the prosecution, 

it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable 

doubt.  State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).  "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.  Circumstantial and direct evidence are equally reliable.  

State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).  Because it is the trier of fact's 

responsibility to resolve credibility issues and determine the weight of the evidence, we defer to it 

on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.  

State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 

415-16, 824 P.2d 533 (1992).

       To convict Stevens of third degree assault, the State had to prove that he, "[w]ith criminal 

negligence, cause[d] bodily harm accompanied by substantial pain that extend[ed] for a period 

sufficient to cause considerable suffering." RCW 9A.36.031(f).  First, Stevens contends that the 

trial court failed to make a written finding that Stevens acted negligently.  However, the court 

made an oral finding at the hearing for sentencing that Stevens intentionally kicked Boedeker's 

hand.  Where no inconsistency exists, an appellate court may use the trial court's oral ruling to 

interpret written findings and conclusions.  State v. Moon, 48 Wn. App. 647, 653, 739 P.2d 1157 

(1987).  "When a statute provides that criminal negligence suffices to establish an element of an 

offense, such element also is established if a person acts intentionally, knowingly, or recklessly."  

RCW 9A.08.010(2).  The trial court's finding that Stevens acted intentionally in kicking Boedeker 

satisfies the requirement that he acted with criminal negligence.

                                               4 

No. 41938-6-II

       Second, Stevens argues that the State put forth insufficient evidence to prove that 

Boedeker experienced substantial pain for a period sufficient to cause considerable suffering.  

Boedeker's statements during the 9-1-1 call demonstrate that she was in considerable pain 

following the kick by Stevens.  When the police officers arrived, her hand was visibly swollen.  

The officers could see that she was in a great deal of pain.  When the officers came to investigate 

the crime four days after the incident, Boedeker's hand was still sufficiently painful to prevent her 

from writing a statement.  The pain took several weeks to subside.  When viewed in the light most 

favorable to the State, the State presented sufficient evidence that Stevens's crime caused bodily 

harm accompanied by substantial pain for a period sufficient to cause considerable suffering.  

Therefore, it presented evidence for the trial court to find Stevens guilty of third degree assault 

under RCW 9A.36.031(1)(f).

                       II.  Probation for Misdemeanor Malicious Mischief

       Stevens next argues that the trial court exceeded its statutory authority when it sentenced 

him to  2 years of probation without having suspended his 365-day jail sentence.  RCW 

9.95.210(1) defines the superior court's authorityto impose probation:

       [i]n granting probation, the superior court may suspend the imposition or the 
       execution of the sentence and may direct that the suspension may continue upon 
       such conditions and for such time as it shall designate, not exceeding the maximum 
       term of sentence or two years, whichever is longer.

If a trial court imposes a maximum jail sentence and suspends none of it, it lacks the authority to 

impose probation.  State v. Gailus, 136 Wn. App. 191, 201, 147 P.3d 1300 (2006), overruled on 

other grounds by State v. Sutherby, 165 Wn.2d 870 (2009).

       The State concedes that if the trial court did not suspend Stevens's jail sentence, it erred in 

                                               5 

No. 41938-6-II

imposing the two-year term of probation.  We cannot determine whether the trial court suspended 

or deferred Stevens's jail sentence because it did not check either box on the judgment and 

sentence.  Accordingly, we remand to the trial court to clarify whether it suspended or deferred 

Stevens's jail sentence and, if it did not, to delete the two-year term of probation.

       We affirm Stevens's felony conviction but remand to the trial court to clarify his sentence 

on the misdemeanor conviction.

       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:

Van Deren, J.

Worswick, A.C.J.

                                               6