Filed Washington State Court of Appeals Division Two
July 25, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 49064-1-II
Respondent,
v.
DAVID ROBERT McBATH, UNPUBLISHED OPINION
Appellant.
JOHANSON, P.J. — David R. McBath appeals his jury trial conviction for second degree
assault. He argues that the evidence is insufficient to support the assault conviction. We affirm.
FACTS
In February 2016, McBath, his father, Harvey McBath, and his stepmother, Sherrill
McBath, were in their home where they lived together. Sherrill1 and McBath began to argue in
the kitchen. The argument escalated, and McBath knocked Sherrill unconscious. Two days later,
Sherrill reported the incident to Bonney Lake Police and provided Pierce County Sheriff’s Deputy
Mark Rickerson with photographs of her injuries. Deputy Rickerson went to the house, spoke with
McBath and Harvey, and arrested McBath. McBath was subsequently charged with second degree
assault.
1 For clarity, we refer to Harvey and Sherrill McBath by their first names. No disrespect is intended. No. 49064-1-II
At trial, Sherrill testified that McBath came at her aggressively and grabbed a glass coffee
pot out of her hand. Sherrill then retreated to the living room where Harvey was watching
television. She told Harvey that McBath was coming after her. That was the last thing she
remembered before she lost consciousness. Sherrill was unconscious for two to three minutes.
When Sherrill woke up, she was covered in blood and surrounded by the shattered remains
of the coffee pot. Sherrill did not seek medical care until the following day. Sherrill was unable
to recall any other details about the incident.
Based on Sherrill’s recollection of events, emergency room physician Dr. Scott Haight
provisionally diagnosed Sherrill with “assault,” “closed head injury,” “concussion,” “laceration,”
and “contusion.” 3 Report of Proceedings at 190. Dr. Haight testified that Sherrill’s difficulty in
recalling details surrounding the incident was consistent with symptoms of a concussion. Sherrill
was treated for a concussion, lacerations, and a contusion. Sherrill’s physical injuries consisted of
a concussion, a laceration to the back of the head, a laceration on the left side of her forehead, two
black eyes, and bruising on her left arm and right wrist. Photographs of her injuries were admitted
into evidence.
Harvey testified that Sherrill fell after she was hit in the head with the coffee pot but that
he did not see McBath throw it. Harvey witnessed Sherrill running into the living room empty-
handed and subsequently falling forward on her face, surrounded by glass. McBath did not testify.
The trial court instructed the jury that to find McBath guilty of second degree assault, the
State had to prove that McBath intentionally assaulted Sherrill and thereby recklessly inflicted
substantial bodily harm. The jury found McBath guilty of second degree assault.
2 No. 49064-1-II
ANALYSIS
McBath argues that the evidence was insufficient to support a conviction for second degree
assault because Sherrill did not recall the actual moment of touching and no witnesses directly
viewed the event. The State argues that the evidence was sufficient. We agree with the State and
affirm.
I. PRINCIPLES OF LAW
When we review sufficiency of the evidence challenges, we determine whether the
evidence, viewed “‘in a light most favorable to the State, [is such that] any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” State v. Sweany,
174 Wn.2d 909, 914, 281 P.3d 305 (2012) (internal quotation marks omitted) (quoting State v.
Randhawa, 133 Wn.2d 67, 73, 941 P.2d 661 (1997)). Sufficiency of the evidence is reviewed de
novo. State v. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014).
Circumstantial and direct evidence are to be considered equally reliable. State v. Thomas,
150 Wn.2d 821, 874, 83 P.3d 970 (2004). “Deference must be given to the trier of fact who
resolves conflicting testimony and evaluates the credibility of witnesses and the persuasiveness of
material evidence.” State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).
II. CIRCUMSTANTIAL EVIDENCE, ALTERNATIVE THEORY, AND VICTIM’S TESTIMONY
McBath argues that because the evidence supporting the State’s theory as to how Sherrill
got hurt was purely circumstantial and there could be an alternative theory as to how Sherrill was
injured, there is insufficient evidence to support the second degree assault conviction. We
disagree.
3 No. 49064-1-II
McBath argues that Sherrill’s testimony is circumstantial evidence and, therefore, fails to
support the State’s theory of how Sherrill was injured. He construes Sherrill’s testimony in a light
most favorable to himself, not the State, and asserts that the evidence presented supports an
alternative theory as to how Sherrill was injured.
But circumstantial evidence and direct evidence are considered equally reliable. Thomas,
150 Wn.2d at 874. And in a sufficiency challenge, the defendant admits the truth of the State’s
evidence. State v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015). All reasonable inferences
“‘must be drawn in favor of the State and interpreted most strongly against the defendant.’” State
v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014) (quoting State v. Salinas, 119 Wn.2d 192,
201, 829 P.2d 1068 (1992)). Also, credibility determinations are made by the trier of fact and are
not subject to review. State v. Miller, 179 Wn. App. 91, 105, 316 P.3d 1143 (2014). Here, when
the evidence, and all reasonable inferences from the evidence, is viewed in a light most favorable
to the State, sufficient evidence supports McBath’s second degree assault conviction.
III. SUFFICIENCY OF THE EVIDENCE
To support a second degree assault conviction, the State had to prove that McBath
intentionally assaulted Sherrill and thereby recklessly inflicted substantial bodily harm. RCW
9A.36.021(1)(a).
A. INTENT
“A person acts with intent or intentionally when [he] acts with the objective or purpose to
accomplish a result which constitutes a crime.” RCW 9A.08.010(1)(a). Intent can be inferred
from all facts and circumstances. State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994).
4 No. 49064-1-II
Here, viewing the evidence in the light most favorable to the State, there is sufficient
evidence to support an inference that McBath intentionally assaulted Sherrill. Sherrill testified
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Filed Washington State Court of Appeals Division Two
July 25, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 49064-1-II
Respondent,
v.
DAVID ROBERT McBATH, UNPUBLISHED OPINION
Appellant.
JOHANSON, P.J. — David R. McBath appeals his jury trial conviction for second degree
assault. He argues that the evidence is insufficient to support the assault conviction. We affirm.
FACTS
In February 2016, McBath, his father, Harvey McBath, and his stepmother, Sherrill
McBath, were in their home where they lived together. Sherrill1 and McBath began to argue in
the kitchen. The argument escalated, and McBath knocked Sherrill unconscious. Two days later,
Sherrill reported the incident to Bonney Lake Police and provided Pierce County Sheriff’s Deputy
Mark Rickerson with photographs of her injuries. Deputy Rickerson went to the house, spoke with
McBath and Harvey, and arrested McBath. McBath was subsequently charged with second degree
assault.
1 For clarity, we refer to Harvey and Sherrill McBath by their first names. No disrespect is intended. No. 49064-1-II
At trial, Sherrill testified that McBath came at her aggressively and grabbed a glass coffee
pot out of her hand. Sherrill then retreated to the living room where Harvey was watching
television. She told Harvey that McBath was coming after her. That was the last thing she
remembered before she lost consciousness. Sherrill was unconscious for two to three minutes.
When Sherrill woke up, she was covered in blood and surrounded by the shattered remains
of the coffee pot. Sherrill did not seek medical care until the following day. Sherrill was unable
to recall any other details about the incident.
Based on Sherrill’s recollection of events, emergency room physician Dr. Scott Haight
provisionally diagnosed Sherrill with “assault,” “closed head injury,” “concussion,” “laceration,”
and “contusion.” 3 Report of Proceedings at 190. Dr. Haight testified that Sherrill’s difficulty in
recalling details surrounding the incident was consistent with symptoms of a concussion. Sherrill
was treated for a concussion, lacerations, and a contusion. Sherrill’s physical injuries consisted of
a concussion, a laceration to the back of the head, a laceration on the left side of her forehead, two
black eyes, and bruising on her left arm and right wrist. Photographs of her injuries were admitted
into evidence.
Harvey testified that Sherrill fell after she was hit in the head with the coffee pot but that
he did not see McBath throw it. Harvey witnessed Sherrill running into the living room empty-
handed and subsequently falling forward on her face, surrounded by glass. McBath did not testify.
The trial court instructed the jury that to find McBath guilty of second degree assault, the
State had to prove that McBath intentionally assaulted Sherrill and thereby recklessly inflicted
substantial bodily harm. The jury found McBath guilty of second degree assault.
2 No. 49064-1-II
ANALYSIS
McBath argues that the evidence was insufficient to support a conviction for second degree
assault because Sherrill did not recall the actual moment of touching and no witnesses directly
viewed the event. The State argues that the evidence was sufficient. We agree with the State and
affirm.
I. PRINCIPLES OF LAW
When we review sufficiency of the evidence challenges, we determine whether the
evidence, viewed “‘in a light most favorable to the State, [is such that] any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” State v. Sweany,
174 Wn.2d 909, 914, 281 P.3d 305 (2012) (internal quotation marks omitted) (quoting State v.
Randhawa, 133 Wn.2d 67, 73, 941 P.2d 661 (1997)). Sufficiency of the evidence is reviewed de
novo. State v. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014).
Circumstantial and direct evidence are to be considered equally reliable. State v. Thomas,
150 Wn.2d 821, 874, 83 P.3d 970 (2004). “Deference must be given to the trier of fact who
resolves conflicting testimony and evaluates the credibility of witnesses and the persuasiveness of
material evidence.” State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).
II. CIRCUMSTANTIAL EVIDENCE, ALTERNATIVE THEORY, AND VICTIM’S TESTIMONY
McBath argues that because the evidence supporting the State’s theory as to how Sherrill
got hurt was purely circumstantial and there could be an alternative theory as to how Sherrill was
injured, there is insufficient evidence to support the second degree assault conviction. We
disagree.
3 No. 49064-1-II
McBath argues that Sherrill’s testimony is circumstantial evidence and, therefore, fails to
support the State’s theory of how Sherrill was injured. He construes Sherrill’s testimony in a light
most favorable to himself, not the State, and asserts that the evidence presented supports an
alternative theory as to how Sherrill was injured.
But circumstantial evidence and direct evidence are considered equally reliable. Thomas,
150 Wn.2d at 874. And in a sufficiency challenge, the defendant admits the truth of the State’s
evidence. State v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015). All reasonable inferences
“‘must be drawn in favor of the State and interpreted most strongly against the defendant.’” State
v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014) (quoting State v. Salinas, 119 Wn.2d 192,
201, 829 P.2d 1068 (1992)). Also, credibility determinations are made by the trier of fact and are
not subject to review. State v. Miller, 179 Wn. App. 91, 105, 316 P.3d 1143 (2014). Here, when
the evidence, and all reasonable inferences from the evidence, is viewed in a light most favorable
to the State, sufficient evidence supports McBath’s second degree assault conviction.
III. SUFFICIENCY OF THE EVIDENCE
To support a second degree assault conviction, the State had to prove that McBath
intentionally assaulted Sherrill and thereby recklessly inflicted substantial bodily harm. RCW
9A.36.021(1)(a).
A. INTENT
“A person acts with intent or intentionally when [he] acts with the objective or purpose to
accomplish a result which constitutes a crime.” RCW 9A.08.010(1)(a). Intent can be inferred
from all facts and circumstances. State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994).
4 No. 49064-1-II
Here, viewing the evidence in the light most favorable to the State, there is sufficient
evidence to support an inference that McBath intentionally assaulted Sherrill. Sherrill testified
that McBath came at her aggressively, grabbed the coffee pot out of her hands, and forced her to
retreat. Sherrill told Harvey that McBath was after her. While Sherrill did not recall the blow to
the back of the head itself, she awoke to blood running down her face, surrounded by broken glass
from the coffee pot. Harvey testified that Sherrill came into the living room empty-handed and
was struck by a coffee pot while only Harvey, Sherrill, and McBath were present. Harvey testified
that Sherrill fell forward onto her face. This evidence supports a reasonable inference that McBath
intentionally struck Sherrill in the back of the head with the coffee pot. See Wilson, 125 Wn.2d at
217.
B. RECKLESSNESS
“A person is reckless or acts recklessly when [he] knows of and disregards a substantial
risk that a wrongful act may occur and [his] disregard of such substantial risk is a gross deviation
from conduct that a reasonable person would exercise in the same situation.” RCW
9A.08.010(1)(c). “Whether an act is reckless depends on both what the defendant knew and how
a reasonable person would have acted knowing these facts.” State v. R.H.S., 94 Wn. App. 844,
847, 974 P.2d 1253 (1999). The trier of fact is permitted to find actual subjective knowledge if
there is sufficient information that would lead a reasonable person to believe that a fact exists.
State v. Johnson, 119 Wn.2d 167, 174, 829 P.2d 1082 (1992).
Here, sufficient evidence supports an inference that McBath acted recklessly. McBath
came at Sherrill aggressively and grabbed a glass coffee pot out of her hand. Sherrill was retreating
from McBath when she lost consciousness. When she woke up, she was covered in blood and
5 No. 49064-1-II
surrounded by the shattered remains of the coffee pot. Sherrill and Harvey testified that Sherrill
was hit on the head with a coffee pot. Based on this evidence, a reasonable person would believe
that McBath hit Sherrill on the head, knowing that such an act could cause her substantial injury,
but disregarded the risk. Thus, sufficient evidence supports the jury’s finding that McBath knew
that hitting Sherrill on the head with a glass coffee pot could cause substantial bodily harm but
acted recklessly by disregarding that risk.
C. SUBSTANTIAL BODILY HARM
“‘Substantial bodily harm’” is defined as bodily injury “which involves a temporary but
substantial disfigurement, . . . or loss or impairment of the function of any bodily part or organ, or
which causes a fracture of any bodily part.” RCW 9A.04.110(4)(b). Substantial, as used in RCW
9A.36.021, “signifies a degree of harm that is considerable and necessarily requires a showing
greater than an injury merely having some existence.” State v. McKague, 172 Wn.2d 802, 806,
262 P.3d 1225 (2011) (holding that a concussion was sufficient to allow the jury to find that the
victim had suffered substantial bodily harm for second degree assault).
Here, sufficient evidence supports the substantial bodily harm element of second degree
assault. Photographs depicting Sherrill’s injuries were presented to the jury. Sherrill suffered a
concussion, a laceration to the back of the head, a laceration on the left side of her forehead, two
black eyes, and bruising on her left arm and right wrist. Holding that the injuries Sherrill sustained
to the McKague standard, there is sufficient evidence to demonstrate that Sherrill sustained
substantial bodily harm. See 172 Wn.2d at 806.
Thus, viewing the evidence in the light most favorable to the State, any rational trier of fact
could find that McBath intentionally struck Sherrill in the back of the head with the coffee pot,
6 No. 49064-1-II
recklessly causing her substantial injury. Sufficient supports McBath’s second degree assault
conviction.
We affirm.
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.
JOHANSON, P.J. We concur:
LEE, J.
MELNICK, J.