Opinion
No. 57667-4-I.
March 19, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-8-01479-4, Harry J. McCarthy, J., entered January 13, 2006.
Counsel for Appellant(s): Washington Appellate Project, Attorney at Law, Seattle, WA, 98101.
Susan F Wilk, Washington Appellate Project, Seattle, WA, 98101-3635.
Counsel for Respondent(s): Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA, 98104.
Joseph P Morris, King County Prosecuting Attorney's Offic, Seattle, WA, 98104-2362.
Affirmed by unpublished per curiam opinion.
B.J.V.M. appeals her juvenile adjudication of guilt for fourth degree assault. Because the factual findings are adequately supported by the record, and the adjudication supported by sufficient evidence, we affirm.
BACKGROUND
Police responding to a 911 call the night of April 6, 2005 arrived at Dove House, a transitional housing facility for at-risk girls, to find 17-year-old B.J.V.M. standing on a porch outside. B.J.V.M. described an altercation with Delores Lane, the staff person on duty that evening. B.J.V.M. admitted to shoving Lane in an attempt to regain possession of a bag belonging to B.J.V.M. which Lane confiscated on suspicion the contents were stolen. B.J.V.M. was charged with fourth degree assault stemming from the event.
B.J.V.M. was 16 on the date of the altercation with Lane, but had turned 17 by the time of her adjudication.
B.J.V.M. had been living at Dove House since June of 2004. She returned home on April 6, 2005 at approximately 10:30 p.m., several hours past her curfew. Lane confronted B.J.V.M. on her arrival.
Dove House has a policy that staff may search residents' property on suspicion of activity such as possession of stolen property or illegal substances. Property is returned to residents once the suspicion is cleared. All residents are made aware of and accept the policy as a condition of residence. Lane testified that the policy is enforced sporadically, depending on the resident. B.J.V.M. acknowledged familiarity with the policy and testified she knew that lawfully owned property would be returned.
When she arrived home on April 6, B.J.V.M. carried with her a small black shopping bag. Inside were several pairs of sunglasses, some shirts, and bottles of perfume. She surrendered the bag for inspection to Lane, who formed a suspicion that the items had been stolen, and informed B.J.V.M. she would confiscate the bag unless and until she could determine B.J.V.M. rightfully possessed them. B.J.V.M. had complied with a similar result in an earlier occasion when her bag was confiscated and searched for cigarettes. That bag was returned when staff did not find any cigarettes in the bag.
On this occasion, however, B.J.V.M. grew angry when told her belongings would not be returned immediately. Lane called 911, and B.J.V.M. was aware that police were en route to the house. Before they arrived, a scuffle ensued in which B.J.V.M. picked the bag up from where Lane had placed it. Lane grabbed the bag back, and B.J.V.M. snatched it out of Lane's grasp, scratching Lane's chest and tearing her shirt in the process. At some point during the struggle, B.J.V.M. held a small knife in her hand. Lane testified that B.J.V.M. threatened her with the knife, while B.J.V.M. testified that the knife fell out of her pocket onto the floor, and that she picked it up and quickly put it into a drawer so that it would be clear she did not intend to use it. Lane called 911 a second time after seeing the knife, and police arrived shortly thereafter.
At the adjudication hearing, Lane testified that B.J.V.M. initiated the physical altercation. Lane could not remember precise details of the attack such as which hand B.J.V.M. attacked with, or what kind of knife B.J.V.M. had held. But Lane testified that B.J.V.M. hit her and scratched her, and photographs introduced by the State depicted injuries consistent with Lane's description.
B.J.V.M. presented a different version of events, testifying that Lane provoked her attack by slapping her and calling her a "nasty little thing." B.J.V.M. described that her jacket had been torn in the fight, and that during the fight, Lane pulled B.J.V.M.'s hair hard enough to pull out a fake ponytail B.J.V.M. wore. Lane testified that she did not pull B.J.V.M.'s hair, but admitted seeing the ponytail on the floor following the struggle.
The responding police officer, Officer Cannon, also testified.
He observed Lane's injuries that evening, but did not notice any injuries to B.J.V.M. or tears in her clothing.
The court found Lane and Cannon's testimony more credible than B.J.V.M.'s. The court found B.J.V.M. guilty of fourth degree assault, and concluded B.J.V.M. was the primary aggressor and thus was not acting in self-defense. B.J.V.M. appeals.
DISCUSSION
When reviewing a challenge to the sufficiency of the evidence, we must determine, considering the evidence in the light most favorable to the prosecution, whether "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Luther, 157 Wn.2d 63, 77, 134 P.3d 205 (2006) (quoting State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002)).
Before evaluating the sufficiency of evidence to convict, we must address B.J.V.M.'s challenges to the court's factual findings. A challenged finding will be upheld if supported by substantial evidence in the record, viewing the evidence and the inferences therefrom most favorably to the State. Id. at 78. The party challenging a finding of fact bears the burden of demonstrating the finding is not supported by substantial evidence. A.S. v. State (In re A.S.), 91 Wn. App. 146, 162, 955 P.2d 836 (1998). In this case, we accept the trial court's conclusion that Lane's description of events is more accurate than B.J.V.M.'s. State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006) (credibility determinations are for the trier of fact and are not subject to review). With one exception, each of the challenged findings here is supported by substantial evidence. The court found Lane's account of events more credible than B.J.V.M.'s, so the fact that B.J.V.M.'s testimony contradicted Lane's does not disturb the findings. Factual findings may be supported by any evidence, including testimony offered by the defendant. The portion of finding of fact 4 describing that B.J.V.M. had hidden items in her pants, though irrelevant to the crime charged, is supported by B.J.V.M.'s own testimony, and no corroboration by Lane is required.
There is no evidence to support the finding that Lane's second call to 911 was motivated by "concern for the safety of other residents." Finding of Fact 13, Clerk's Papers at 11. This finding is irrelevant to the issues here, and thus the error is harmless.
To prove fourth degree assault, the State had to prove B.J.V.M. committed a battery on Lane. Battery is a harmful or offensive touching that was neither legally consented to nor otherwise privileged. State v. Hall, 104 Wn. App. 56, 64, 14 P.3d 884 (2000); State v. Humphries, 21 Wn. App. 405, 408, 586 P.2d 130 (1978). Lane testified, and B.J.V.M. admitted, that B.J.V.M. shoved Lane. Photographs established that Lane sustained injuries, however minor, from the incident. The evidence is sufficient to prove B.J.V.M. committed the assault, and the true issue is whether the court properly concluded that B.J.V.M.'s attack was not privileged, either in self-defense or in defense of property.
Both self-defense and defense of property are defenses to a charge of assault:
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
. . . .
(3) Whenever used by a party about to be injured . . . in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.
RCW 9A.16.020(3). A defense of justifiable force is unavailable to a person who is the first aggressor. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). Because self-defense or defense of property negates the unlawfulness element of an assault, the State bears the burden of disproving the defense beyond a reasonable doubt. State v. McCullum, 98 Wn.2d 484, 490, 656 P.2d 1064 (1983).
B.J.V.M. argues the court erred in concluding she was the first aggressor, contending that Lane initiated the altercation by confiscating B.J.V.M.'s property. But which of the women was the first aggressor is irrelevant because the defense was not available to B.J.V.M. in any case. The evidence demonstrates that B.J.V.M. knew the bag and its contents would be returned to her, and knew Lane did not intend to take the property for herself. Lane's temporary interference with B.J.V.M.'s possession was thus not "malicious," because it was not done with "an evil intent, wish, or design to vex, annoy or injure" B.J.V.M. RCW 9A.04.110(12). Moreover, the evidence demonstrates that B.J.V.M. knew police were on the way to Dove House and anticipated that on arrival they would assist her in reclaiming her possessions: "I told her, yeah, go ahead and call the police, they'll tell you to give me my bag back. . . . I was glad she called the police." Report of Proceedings (Dec. 16, 2005) at 66. This evidence disproves B.J.V.M.'s claim of defense of property. No physical altercation was necessary to regain the bag since the police were en route and could be anticipated to resolve the dispute.
The juvenile court's finding of guilt is supported by sufficient evidence, as are the conclusions that B.J.V.M. was not justified in her physical attack on Lane.
Affirmed.