State Of Washington v. Kevin James Enebrad

• Court: Court of Appeals of Washington
• Decided: April 27, 2020
• Docket: 79716-6
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 79716-6-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION KEVIN J. ENEBRAD,

Appellant.

APPELWICK, J. — Enebrad appeals his conviction for assault in the second

degree. He argues the State presented insufficient evidence to support his

conviction. We affirm.

FACTS

Kevin Enebrad and Alyssa Nickels are separated and have a parenting plan

for their daughter. On May 7, 2017, Nickels agreed to allow Enebrad to take their

daughter to his birthday party even though it was her day with thier daughter. Their

daughter was about two and a half years old at the time. When told she would be

going to her father’s birthday party, the girl became upset and started screaming

and crying, “No daddy, No daddy.” This behavior continued when Enebrad arrived

at the house to pick up his daughter.

Enebrad arrived at Nickels’s home with his cousin and his cousin’s

girlfriend. Enebrad rang the doorbell while the other two stayed in the car.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 79716-6-I/2

Nickels answered the door and told Enebrad that their daughter was “having

a hard time” and that she did not want to let her leave right away. Enebrad

motioned to grab the child, but Nickels resisted, saying that she wanted “‘a positive

exchange.’” Enebrad then stepped into Nickles’s home, which made her very

nervous. She told Enebrad that he could not be in the house and to step back

outside.

Enebrad then grabbed his daughter with one hand, grabbed Nickels by the

throat, and pushed her to the ground with his other hand. He yelled obscenities at

her and continued choking her for 7 to 10 seconds. Nickels testified that she felt

like she could not breathe while Enebrad choked her. After choking her, Enebrad

got up and tried to leave with their daughter.

Nickels got her phone and chased after Enebrad, saying that he could not

take their daughter. Enebrad’s cousin then approached Nickels and asked her to

“‘[j]ust let us go.’” Nickels interpreted this as a request to allow them to leave

without calling the police. Nickels instead called the police. Enebrad returned their

daughter to Nickels and left with his cousin and his cousin’s girlfriend.

Police arrived at Nickels’ home and took a statement from her regarding the

incident. She told the officers that Enebrad had squeezed her neck and pushed

her to the ground. She complained to the officer about pain in her throat area and

the back of her head. The investigating officer did not note any bruising on her

throat at that time.

Two days later, Nickels sought medical attention because her pain had not

subsided. She was evaluated by a physician’s assistant named Susan Rose. She

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told Rose that she had been assaulted by her ex-boyfriend, relayed details of the

assault, and said she still had pain around her neck. Rose noted tenderness

around Nickels’s neck area and bruising on her upper back.

The State charged Enebrad with assault in the second degree. Nickels

testified to the assault as described above. The responding officer and the

physician’s assistant testified to their reporting as described above.

Enebrad’s cousin and his cousin’s girlfriend both testified that they had seen

the incident and did not see Enebrad enter Nickels’s home. They testified that

Nickels had simply handed their daughter to Enebrad. However, they testified that

Nickels grabbed Enebrad’s arm as he was leaving and at which point Enebrad

shoved Nickels. But, neither testified that Enebrad choked Nickels.

The jury found Enebrad guilty as charged. Enebrad appeals.

DISCUSSION

Enebrad argues that the State presented insufficient evidence to support

his conviction. Specifically, he argues the State did not present sufficient evidence

that Enebrad strangled Nickels.

Sufficiency of the evidence is a question of constitutional law that we review

de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Evidence is

sufficient to support a conviction if, “‘after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” State v. Green, 94 Wn.2d

216, 221, 616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia,

443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)), abrogated on other

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grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed.

2d 466 (2006).

When a defendant challenges the sufficiency of the evidence, they admit

the truth of all of the State’s evidence. State v. Cardenas-Flores, 189 Wn.2d 243,

265, 401 P.3d 19 (2017). All reasonable inferences from the evidence must be

drawn in favor of the State and interpreted most strongly against the defendant.

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We must defer to

the trier of fact on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence. State v. Killingsworth, 166 Wn. App. 283, 287,

269 P.3d 1064 (2012).

A person is guilty of assault in the second degree if they assault another

person by strangulation. RCW 9A.36.021(1)(g). “Strangulation” means to

“compress a person’s neck, thereby obstructing the person’s blood flow or ability

to breathe.” RCW 9A.04.110(26). A person’s blood flow or ability to breathe need

not be completely obstructed under the statute. See State v. Rodriguez, 187 Wn.

App. 922, 935, 352 P.3d 200 (2015). It needs to be hindered or blocked only to

some degree. Id.

Here, Nickels testified to details of the assault, including that Enebrad had

choked her for 7 to 10 seconds. She testified that while he choked her, she felt

like she could not breathe. She reported the incident contemporaneously to a

police officer. She sought medical attention when her pain persisted two days later

and reported details of the incident to the physician’s assistant who examined her.

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During that examination, the physician’s assistant noted tenderness in Nickels’s

neck and bruising on her upper back.

Enebrad’s only challenge is to whether the evidence supported a finding

that he strangled Nickels. Viewing the evidence in the light most favorable to the

State, a rational trier of fact could conclude that Enebrad choked Nickels to the

point where her breathing was obstructed. Accordingly, the evidence is sufficient

to support his conviction for assault based on strangulation.

We affirm.

WE CONCUR: