IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 83376-6-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ERICK LADAL SIMS,
Appellant.
BIRK, J. — Erick Sims appeals a criminal conviction after a bench trial. Sims
asserts the evidence supporting his conviction for assault is not constitutionally
sufficient, and his conviction for assault is inconsistent with his acquittal of rape.
Finding no error, we affirm.
I
The State charged Erick Sims with rape in the second degree and murder
in the second degree of Devan Schmidt. Following a bench trial, the court
acquitted Sims of rape and murder, but convicted him of the lesser included
offence of second degree assault. Among other arguments, Sims challenges
whether the evidence was sufficient to convict him of assault.
Trial evidence showed that in the early hours of May 2, 2015, Schmidt
invited Dominique Dixon and Kevin Turner to her home. Dixon and Turner asked
Sims for a ride. Schmidt did not know Sims. The three arrived at approximately 3
a.m. After some time, Schmidt and Sims left. When they returned, Schmidt’s hair No. 83376-6-I/2
was wet, and she said they had jumped into Lake Washington. Dixon testified she
did not see any injuries on Schmidt. At approximately 6:00 a.m., one of Schmidt’s
roommates observed Schmidt to be uninjured.
The guests departed shortly before 7:00 a.m. Schmidt texted Dixon at 6:53
a.m., “Woman! I couldn’t get u alone but why were you trying to hook me up with
your drug dealer? Lol trust me I have enough on my plate already.” Schmidt tried
to call her boyfriend several times between 6:54 a.m. and 6:58 a.m. At 6:59 a.m.,
Sims texted Schmidt, “Hello.” At 7:00 a.m., Sims texted Schmidt posing a request
Sims testified was for drugs but a police officer testified referred to things of a
sexual nature. Schmidt texted Turner, “Your boy is here what’s the best way to
get rid of him?” Turner responded, “Tell him ur going to sleep have a good night,”
“And you have a bf and u don’t wanna fuck it up,” and, “Do u need us to come
back.” At 7:18 a.m., Turner and Dixon spoke with Schmidt on the phone. During
that conversation, Schmidt said, “[I]t’s okay. I’m a big girl. I can handle myself.”
Sims’s cell phone records show he remained near Schmidt’s home from
5:05 a.m. to at least 8:14 a.m. At 8:39 a.m., Sims’s phone connected to a cell
tower approximately six blocks to the north of the one it connected to while at
Schmidt’s home. Sims consistently admitted he returned after initially departing,
but provided inconsistent accounts of his actions upon returning. At trial, Sims
claimed that when he initially departed he drove two or three blocks, then returned
to Schmidt’s house to ask her about her cocaine connection. Sims claimed he
knocked on the door, waited a few minutes, tapped on the window of her room,
2 No. 83376-6-I/3
then returned to his truck to text and call Schmidt. Sims testified he waited in his
car while he smoked a cigarette, and then got lost and drove in circles in Schmidt’s
neighborhood, near her home, for 15-20 minutes. The trial court found Sims’s
testimony that he got lost trying to leave the neighborhood was not credible.
At approximately 10:50 a.m., a roommate found Schmidt deceased. Brian
Mazrim, MD estimated Schmidt’s time of death at roughly 9:00 a.m., “give or take
a couple hours.” Based on the lividity on Schmidt’s body and the stiffness of her
jaw described by responding fire fighters, Schmidt had been dead for “at least half
an hour, maybe an hour before the medics arrived.”
Dr. Mazrim observed several injuries to Schmidt’s body: a one inch diameter
bruise to the left temple area which occurred within a day or two of death, two small
abrasions to the face, an acute bruise on the inner aspect of the lower lip, which
“would be up against her lower teeth,” acute bruises over both hip bones caused
by pressure strongly applied to those areas externally from a blunt object, a bruise
over the pubic bone, acute bruises to both knees, acute bruises from blunt force
injuries to the tops of both feet consistent with an individual prone on the floor,
scrapes and bruises to the tops of the toes, a small cut on the right pinkie from
within about an hour of death, and “Deep down in the neck at the top of what would
be the Adam’s apple or the voice box there was an area of acute hemorrhage.”
The last injury “can be seen when there is an external force applied to the neck.
Typically a hand because . . . the fingers . . . reach in deep.”
3 No. 83376-6-I/4
The injuries to Schmidt’s face were caused by “something to the effect of a
hand over the mouth and nose . . . [o]r perhaps the face pressed into the floor or
some other material.” The bruising to Schmidt’s hips, knees, and the tops of both
feet suggest they were sustained while lying face down on a hard surface. Dr.
Mazrim deemed the cause of death undetermined after identifying as possible
causes intoxication and asphyxia.
Swabs were collected from Schmidt’s body and sent to the Washington
State Patrol crime lab. Amylase, which is an enzyme usually associated with
saliva, was found on swabs from Schmidt’s neck, right wrist, left wrist, and vaginal
area. Deoxyribonucleic acid (DNA) profiles from the neck, right fingernails, and
right wrist were consistent with the combined profile from Schmidt and Sims.
When reviewing the sufficiency of the evidence, we ask whether, after
viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found the defendant guilty beyond a reasonable doubt. State v.
Green, 94 Wn.2d 216, 220, 616 P.2d 628 (1980). Relevant here, “[a] person is
guilty of assault in the second degree if he or she, under circumstances not
amounting to assault in the first degree . . . [i]ntentionally assaults another and
thereby recklessly inflicts substantial bodily harm.” RCW 9A.36.021(1)(a).
Washington recognizes an unlawful touching as assault. State v. Elmi, 166 Wn.2d
209, 215, 207 P.3d 439 (2009). “Whether sufficient evidence supports finding a
defendant acted recklessly ‘depends on both what the defendant knew and how a
reasonable person would have acted knowing these facts.’ ” State v. Melland, 9
4 No. 83376-6-I/5
Wn. App. 2d 786, 804, 452 P.3d 562 (2019) (internal quotation marks omitted)
(quoting State v. Graham, 153 Wn.2d 400, 408, 103 P.3d 1238 (2005)). The trier
of fact is “permitted to find actual subjective knowledge if there is sufficient
information which would lead a reasonable person to believe that a fact exists.”
State v. Johnson, 119 Wn.2d 167, 174, 829 P.2d 1082 (1992) (emphasis omitted).
The evidence allowed a rational trier of fact to conclude Sims was present
in Schmidt’s home after others left, and that he had unlawful physical contact with
Schmidt.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 83376-6-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ERICK LADAL SIMS,
Appellant.
BIRK, J. — Erick Sims appeals a criminal conviction after a bench trial. Sims
asserts the evidence supporting his conviction for assault is not constitutionally
sufficient, and his conviction for assault is inconsistent with his acquittal of rape.
Finding no error, we affirm.
I
The State charged Erick Sims with rape in the second degree and murder
in the second degree of Devan Schmidt. Following a bench trial, the court
acquitted Sims of rape and murder, but convicted him of the lesser included
offence of second degree assault. Among other arguments, Sims challenges
whether the evidence was sufficient to convict him of assault.
Trial evidence showed that in the early hours of May 2, 2015, Schmidt
invited Dominique Dixon and Kevin Turner to her home. Dixon and Turner asked
Sims for a ride. Schmidt did not know Sims. The three arrived at approximately 3
a.m. After some time, Schmidt and Sims left. When they returned, Schmidt’s hair No. 83376-6-I/2
was wet, and she said they had jumped into Lake Washington. Dixon testified she
did not see any injuries on Schmidt. At approximately 6:00 a.m., one of Schmidt’s
roommates observed Schmidt to be uninjured.
The guests departed shortly before 7:00 a.m. Schmidt texted Dixon at 6:53
a.m., “Woman! I couldn’t get u alone but why were you trying to hook me up with
your drug dealer? Lol trust me I have enough on my plate already.” Schmidt tried
to call her boyfriend several times between 6:54 a.m. and 6:58 a.m. At 6:59 a.m.,
Sims texted Schmidt, “Hello.” At 7:00 a.m., Sims texted Schmidt posing a request
Sims testified was for drugs but a police officer testified referred to things of a
sexual nature. Schmidt texted Turner, “Your boy is here what’s the best way to
get rid of him?” Turner responded, “Tell him ur going to sleep have a good night,”
“And you have a bf and u don’t wanna fuck it up,” and, “Do u need us to come
back.” At 7:18 a.m., Turner and Dixon spoke with Schmidt on the phone. During
that conversation, Schmidt said, “[I]t’s okay. I’m a big girl. I can handle myself.”
Sims’s cell phone records show he remained near Schmidt’s home from
5:05 a.m. to at least 8:14 a.m. At 8:39 a.m., Sims’s phone connected to a cell
tower approximately six blocks to the north of the one it connected to while at
Schmidt’s home. Sims consistently admitted he returned after initially departing,
but provided inconsistent accounts of his actions upon returning. At trial, Sims
claimed that when he initially departed he drove two or three blocks, then returned
to Schmidt’s house to ask her about her cocaine connection. Sims claimed he
knocked on the door, waited a few minutes, tapped on the window of her room,
2 No. 83376-6-I/3
then returned to his truck to text and call Schmidt. Sims testified he waited in his
car while he smoked a cigarette, and then got lost and drove in circles in Schmidt’s
neighborhood, near her home, for 15-20 minutes. The trial court found Sims’s
testimony that he got lost trying to leave the neighborhood was not credible.
At approximately 10:50 a.m., a roommate found Schmidt deceased. Brian
Mazrim, MD estimated Schmidt’s time of death at roughly 9:00 a.m., “give or take
a couple hours.” Based on the lividity on Schmidt’s body and the stiffness of her
jaw described by responding fire fighters, Schmidt had been dead for “at least half
an hour, maybe an hour before the medics arrived.”
Dr. Mazrim observed several injuries to Schmidt’s body: a one inch diameter
bruise to the left temple area which occurred within a day or two of death, two small
abrasions to the face, an acute bruise on the inner aspect of the lower lip, which
“would be up against her lower teeth,” acute bruises over both hip bones caused
by pressure strongly applied to those areas externally from a blunt object, a bruise
over the pubic bone, acute bruises to both knees, acute bruises from blunt force
injuries to the tops of both feet consistent with an individual prone on the floor,
scrapes and bruises to the tops of the toes, a small cut on the right pinkie from
within about an hour of death, and “Deep down in the neck at the top of what would
be the Adam’s apple or the voice box there was an area of acute hemorrhage.”
The last injury “can be seen when there is an external force applied to the neck.
Typically a hand because . . . the fingers . . . reach in deep.”
3 No. 83376-6-I/4
The injuries to Schmidt’s face were caused by “something to the effect of a
hand over the mouth and nose . . . [o]r perhaps the face pressed into the floor or
some other material.” The bruising to Schmidt’s hips, knees, and the tops of both
feet suggest they were sustained while lying face down on a hard surface. Dr.
Mazrim deemed the cause of death undetermined after identifying as possible
causes intoxication and asphyxia.
Swabs were collected from Schmidt’s body and sent to the Washington
State Patrol crime lab. Amylase, which is an enzyme usually associated with
saliva, was found on swabs from Schmidt’s neck, right wrist, left wrist, and vaginal
area. Deoxyribonucleic acid (DNA) profiles from the neck, right fingernails, and
right wrist were consistent with the combined profile from Schmidt and Sims.
When reviewing the sufficiency of the evidence, we ask whether, after
viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found the defendant guilty beyond a reasonable doubt. State v.
Green, 94 Wn.2d 216, 220, 616 P.2d 628 (1980). Relevant here, “[a] person is
guilty of assault in the second degree if he or she, under circumstances not
amounting to assault in the first degree . . . [i]ntentionally assaults another and
thereby recklessly inflicts substantial bodily harm.” RCW 9A.36.021(1)(a).
Washington recognizes an unlawful touching as assault. State v. Elmi, 166 Wn.2d
209, 215, 207 P.3d 439 (2009). “Whether sufficient evidence supports finding a
defendant acted recklessly ‘depends on both what the defendant knew and how a
reasonable person would have acted knowing these facts.’ ” State v. Melland, 9
4 No. 83376-6-I/5
Wn. App. 2d 786, 804, 452 P.3d 562 (2019) (internal quotation marks omitted)
(quoting State v. Graham, 153 Wn.2d 400, 408, 103 P.3d 1238 (2005)). The trier
of fact is “permitted to find actual subjective knowledge if there is sufficient
information which would lead a reasonable person to believe that a fact exists.”
State v. Johnson, 119 Wn.2d 167, 174, 829 P.2d 1082 (1992) (emphasis omitted).
The evidence allowed a rational trier of fact to conclude Sims was present
in Schmidt’s home after others left, and that he had unlawful physical contact with
Schmidt. This includes Sims’s admission that he returned, text messages from
Schmidt’s phone, Sims’s cell phone records placing him in the vicinity of Schmidt’s
home, and the presence of Sims’s DNA on Schmidt’s body. In addition, the last
people to see Schmidt alive, other than Sims, did not observe any injuries on
Schmidt.
The evidence also allowed a rational trier of fact to find Sims acted
recklessly. Dr. Mazrim described the injuries to Schmidt’s face as consistent with
a hand being held over her mouth and nose. Dr. Mazrim described the acute
hemorrhaging in Schmidt’s neck as consistent with external force being applied to
her neck. Dr. Mazrim described the constellation of bruises to Schmidt’s hips,
knees, and feet as consistent with her being held to the ground with some force.
A rational trier of fact could conclude that these actions will cause injury and are a
gross deviation from conduct that a reasonable person would exercise in the same
situation.
5 No. 83376-6-I/6
A rational trier of fact could find the injuries described by Dr. Mazrim
constitute substantial bodily harm. Bruising can be sufficient to establish
substantial bodily harm. State v. Hovig, 149 Wn. App. 1, 13, 202 P.3d 318 (2009)
(substantial bodily harm found due to injury from a bite when pain would have been
experienced at the time of injury, and bruising would have lasted from 7 to 14
days); State v. Ashcraft, 71 Wn. App 444, 455, 859 P.2d 60 (1993) (substantial
disfigurement found when bruise marks were consistent with being hit with a shoe);
State v. McKague, 172 Wn.2d 802, 806, 262 P.3d 1225 (2011) (substantial bodily
harm when assault resulted in facial bruising and swelling lasting several days with
lacerations to face, back of head, and arm). Schmidt’s injuries included bruises
and contusions consistent with Schmidt having been held down. There was
sufficient evidence of second degree assault.
II
Sims argues the court reached inconsistent conclusions by acquitting him
of rape but convicting him of assault. Generally, Sims argues the court’s
conclusions are inconsistent because, he says, the same circumstances leading
to reasonable doubt about rape logically also lead to reasonable doubt about
assault. We disagree.1
1 We do not understand Sims to assert that there is an inconsistency between the court’s acquittal of murder and conviction for assault. Such a claim could not stand. The court acquitted of murder because it found reasonable doubt existed as to whether Schmidt’s injuries caused her death. This does nothing to insulate anyone from criminal liability for causing Schmidt’s injuries.
6 No. 83376-6-I/7
Sims argues the court recognized an alternate basis for explaining certain
DNA results when finding reasonable doubt as to rape, but then neglected to
acknowledge the same doubt about assault. Sims’s DNA was found on Schmidt’s
body coinciding in certain locations with amylase, an enzyme associated with
saliva. The court explained, “The State asks the Court to conclude that the
presence of Am[y]lase on portions of Ms. Schmidt’s body where Mr. Sims’ DNA
was also found is evidence that the DNA was contained in Mr. Sims’ saliva.” But
the court continued, “This is not the only reasonable inference from this evidence.
The uncontroverted testimony presented at trial, from several experts, was that
Am[y]lase is an enzyme found in the human digestive system, including in saliva.”
There was evidence that Schmidt had vomited, which could explain the presence
of amylase. Likewise, the court noted, “if Ms. Schmidt and Mr. Sims shared
cocaine [by taking ‘bumps’ off each others’ hands], especially once he returned to
her house, this would provide an alternate explanation for Am[y]lase on her hands
and wrist.” But the court went no further than to say the evidence was inconclusive
about whether Sims’s saliva was the source of the amylase found on Schmidt’s
body, which tended to undermine the State’s theory of rape. Contrary to Sims’s
implication, doubt about whether Sims’s saliva was the source of these particular
DNA findings does not mandate a finding of reasonable doubt that Sims could have
assaulted Schmidt.
Sims argues the court found the absence of certain injuries supportive of
reasonable doubt about rape, and he says this compels a like conclusion about
7 No. 83376-6-I/8
assault. This discussion begins with DNA results that, unlike those discussed
above, were not inconclusive. Sims’s DNA was “under Ms. Schmidt’s fingernails
and on her wrist,” as well as “on Ms. Schmidt’s neck.” The court did not view these
findings as proving assault by themselves, but found they were “consistent” with
Sims holding Schmidt down, restraining her by the neck, and Schmidt fighting
defensively. The court further relied on Dr. Mazrim’s testimony that established
“Ms. Schmidt’s injuries were consistent with the perpetrator holding Ms. Schmidt
face-down on the floor with enough strongly applied force to cause bruising along
the surfaces of her body that contacted the floor.” But the court doubted that Sims
inflicted these injuries while committing a sexual assault, stating that if he had done
so he may have inflicted greater injury to other parts of Schmidt’s body: “Ms.
Schmidt had no discernible injuries to the back side of her body. If a perpetrator
was holding her down while thrusting or attempting to thrust into her, one might
expect to see abrasions or other injuries to her back, buttocks or legs. Again, while
the absence of this evidence is not dispositive, it is relevant.”
There is no inconsistency. The court viewed the evidence as indicating
Sims forcibly restrained Schmidt against the floor. That there were potentially
innocent explanations of Sims’s DNA being found on Schmidt’s neck and wrist
does not mandate doubt that he forcibly restrained her. The court did not point to
any DNA findings as conclusive, but described them only as “consistent” with an
assault evidenced independently by other circumstances. The DNA findings were
probative, because they did not rule out an assault causing injuries like those that
8 No. 83376-6-I/9
were found, and because they could reasonably be caused by such an assault.
Similarly, the court’s view that Sims might have caused additional trauma if he had
inflicted Schmidt’s injuries during a sexual assault is not inconsistent with a
conclusion he caused those injuries independent of a sexual assault. And, as
described above, there was sufficient evidence supporting the conclusion that
Sims caused Schmidt’s injuries.
Because the court’s conclusions are not inconsistent, it is not necessary to
analyze the level of scrutiny Washington would apply to inconsistent conclusions
following a bench trial in a criminal case.
Affirmed.
WE CONCUR: