IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 76339-3-1 n -- cre --,o Respondent, ) DIVISION ONE 4 g"0
.n..... v. LO ctfur ) 0 re. -L) ) 1rrno -'': MICHAEL WAINAINA KARIUKI, ) UNPUBLISHED OPINION —iv --- r -.so 7 cfb
Appellant. ) FILED: July 30, 2018 tr% .c.i.ta •-•• )
ANDRUS, J. — Evidence is sufficient to support a conviction if, viewing the
evidence in the light most favorable to the State, any rational trier of fact could
have found the offense proved beyond a reasonable doubt. Michael Wainaina
Kariuki challenges the sufficiency of the evidence supporting his conviction for
second degree assault by strangulation. But, viewing the evidence in the light most
favorable to the State, a rational juror could have found beyond a reasonable doubt
that Kariuki assaulted his victim by strangulation. We affirm.
FACTS
S.R., a 13 year-old girl living with her sister, Brittcole Trent, was in a sexual
relationship with Kariuki, a 21 year-old neighbor. On May 11,2015, S.R. and her
friend Tabitha Chamberlain visited Kariuki. When S.R. returned home, she was
distraught. She smelled of alcohol and her cheek was red and swollen. S.R. told
Trent that Kariuki wanted to have sex with her In front of Chamberlain and, when
she said no, he slapped her. No. 76339-3-1/2
S.R., Trent, and other family members went to Kariuki's apartment and
demanded to know what had happened. Kariuki denied slapping S.R. Kariuki's
stepfather told Trent to leave and pushed her. Before Trent could restrain her,
S.R. ran at Kariuki and began hitting him. Kariuki's stepfather called the police
and reported an assault.
When police officers responded, Kariuki was limping. He told the officers
that S.R. had assaulted him and injured his leg. Kariuki declined to give details
about what occurred and later stated that he injured his leg when he tripped over
a table.
After speaking with Kariuki and his stepfather, the officers went to S.R.'s
apartment, where they spoke with S.R., Chamberlain, and Trent on the steps
outside. S.R. was uncooperative. Officer Blackshear observed that her cheek and
eyelid were swollen. S.R. and Chamberlain spoke with the officers briefly then
went into the apartment. The officers remained outside speaking with Trent. After
some time, Chamberlain rushed out of the apartment yelling that S.R. had knives
and was about to kill herself. The police officers and Trent ran inside and found
S.R. in a bathroom. Trent was able to take the knives away from S.R. The officers
took S.R. into custody to prevent her from harming herself. They called for an
ambulance to transport her to the hospital for evaluation by a mental health
professional.
While waiting for the ambulance, Officer Blackshear placed S.R. in the back
of the patrol car. He observed that she smelled of alcohol and appeared
intoxicated. He also observed bruises on S.R.'s neck. Blackshear photographed
the bruises and instructed the medics to evaluate S.R. for strangulation. - 2- No. 76339-3-1/3
Following an investigation,the State charged Kariuki with two counts of rape
of a child in the second degree, assault in the second degree by strangulation,
sexual exploitation of a minor, communication with a minor for immoral purposes,
and child molestation in the second degree. During a three-week trial, Trent,
Chamberlain, and the responding officers testified to the events related above.
Professionals who cared for S.R. at the hospital also testified.
A social worker, JaneIle Heath, stated that S.R. told her that she had been
sexually active with Kariuki on multiple occasions. S.R. told Heath that, on May
11, she and Kariuki had several drinks. Kariuki then wanted to have sex but S.R.
said no. S.R. told Heath that Kariuki slapped her, choked her, and pushed her into
a dresser. The emergency room physician, Dan Himelic, testified that he observed
bruising on the front of S.R.'s neck. S.R. told Himelic that her "significant other
attacked her and choked her. The nurse who conducted the sexual assault exam,
Courtney Walker, testified that she observed a bruise on S.R.'s neck near her
trachea, as well as other scratches and bruises. Walker stated that bruising is one
sign of strangulation.
S.R. did not testify. According to Trent, S.R. was in love with Kariuki and
did not testify because she did not want to get him in trouble.
The jury convicted Kariuki of one count of rape of a child and assault in the
second degree by strangulation.1
I The jury acquitted Kariuki on the second count of rape of a child and the child molestation charge. The Jury was unable to reach a verdict on the remaining charges and a mistrial was declared as to those charges.
- 3- No. 76339-3-1/4
ANALYSIS
Kariuki challenges the sufficiency of the evidence supporting his conviction
for second degree assault by strangulation. Sufficiency of the evidence is a
question of law that we review de novo. State v. Rich, 184 Wn.2d 897, 903, 365
P.3d 746 (2016). The test is whether, viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found guilt 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. Id.
To convict of assault by strangulation, the State must prove that the
defendant compressed the victim's neck and thereby either (1) obstructed the
person's blood flow or ability to breathe or (2) intended to obstruct the person's
blood flow or ability to breathe. RCW 9A.36.021(1)(g); RCW 9A.04.110(26).
Kariuki argues that the evidence at trial was insufficient for a reasonable person to
conclude that he obstructed S.R.'s blood flow or her ability to breathe or acted with
the specific intent to cause that result.
We disagree. Officer Blackshear saw bruising on S.R.'s neck. He
documented her bruises by photographing them. These photos were admitted at
trial. Blackshear described what he'd seen as a long red mark" in the center of
her throat. He also testified he found vomit in the backseat of his patrol car after
transporting S.R. to the hospital. Medical personnel testified that vomit is a
symptom of strangulation. The nurse who attended to S.R. testified that she saw
and photographed a 1.5 cm by 1 cm bruise on the anterior medial portion of S.R.'s
-4 - No. 76339-3-1/5
neck, near her trachea. The social worker and the emergency room doctor both
testified that S.R. reported she had been choked.
Proof of intent can be made through circumstantial evidence. State v.
Hagler, 74 Wn. App. 232, 236, 872 P.2d 85(1994). Intent to commit a crime may
be inferred from a defendant's conduct where it is plainly indicated as a matter of
logical probability. In re Personal Restraint Petition of Fuamaila 131 Wn. App.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 76339-3-1 n -- cre --,o Respondent, ) DIVISION ONE 4 g"0
.n..... v. LO ctfur ) 0 re. -L) ) 1rrno -'': MICHAEL WAINAINA KARIUKI, ) UNPUBLISHED OPINION —iv --- r -.so 7 cfb
Appellant. ) FILED: July 30, 2018 tr% .c.i.ta •-•• )
ANDRUS, J. — Evidence is sufficient to support a conviction if, viewing the
evidence in the light most favorable to the State, any rational trier of fact could
have found the offense proved beyond a reasonable doubt. Michael Wainaina
Kariuki challenges the sufficiency of the evidence supporting his conviction for
second degree assault by strangulation. But, viewing the evidence in the light most
favorable to the State, a rational juror could have found beyond a reasonable doubt
that Kariuki assaulted his victim by strangulation. We affirm.
FACTS
S.R., a 13 year-old girl living with her sister, Brittcole Trent, was in a sexual
relationship with Kariuki, a 21 year-old neighbor. On May 11,2015, S.R. and her
friend Tabitha Chamberlain visited Kariuki. When S.R. returned home, she was
distraught. She smelled of alcohol and her cheek was red and swollen. S.R. told
Trent that Kariuki wanted to have sex with her In front of Chamberlain and, when
she said no, he slapped her. No. 76339-3-1/2
S.R., Trent, and other family members went to Kariuki's apartment and
demanded to know what had happened. Kariuki denied slapping S.R. Kariuki's
stepfather told Trent to leave and pushed her. Before Trent could restrain her,
S.R. ran at Kariuki and began hitting him. Kariuki's stepfather called the police
and reported an assault.
When police officers responded, Kariuki was limping. He told the officers
that S.R. had assaulted him and injured his leg. Kariuki declined to give details
about what occurred and later stated that he injured his leg when he tripped over
a table.
After speaking with Kariuki and his stepfather, the officers went to S.R.'s
apartment, where they spoke with S.R., Chamberlain, and Trent on the steps
outside. S.R. was uncooperative. Officer Blackshear observed that her cheek and
eyelid were swollen. S.R. and Chamberlain spoke with the officers briefly then
went into the apartment. The officers remained outside speaking with Trent. After
some time, Chamberlain rushed out of the apartment yelling that S.R. had knives
and was about to kill herself. The police officers and Trent ran inside and found
S.R. in a bathroom. Trent was able to take the knives away from S.R. The officers
took S.R. into custody to prevent her from harming herself. They called for an
ambulance to transport her to the hospital for evaluation by a mental health
professional.
While waiting for the ambulance, Officer Blackshear placed S.R. in the back
of the patrol car. He observed that she smelled of alcohol and appeared
intoxicated. He also observed bruises on S.R.'s neck. Blackshear photographed
the bruises and instructed the medics to evaluate S.R. for strangulation. - 2- No. 76339-3-1/3
Following an investigation,the State charged Kariuki with two counts of rape
of a child in the second degree, assault in the second degree by strangulation,
sexual exploitation of a minor, communication with a minor for immoral purposes,
and child molestation in the second degree. During a three-week trial, Trent,
Chamberlain, and the responding officers testified to the events related above.
Professionals who cared for S.R. at the hospital also testified.
A social worker, JaneIle Heath, stated that S.R. told her that she had been
sexually active with Kariuki on multiple occasions. S.R. told Heath that, on May
11, she and Kariuki had several drinks. Kariuki then wanted to have sex but S.R.
said no. S.R. told Heath that Kariuki slapped her, choked her, and pushed her into
a dresser. The emergency room physician, Dan Himelic, testified that he observed
bruising on the front of S.R.'s neck. S.R. told Himelic that her "significant other
attacked her and choked her. The nurse who conducted the sexual assault exam,
Courtney Walker, testified that she observed a bruise on S.R.'s neck near her
trachea, as well as other scratches and bruises. Walker stated that bruising is one
sign of strangulation.
S.R. did not testify. According to Trent, S.R. was in love with Kariuki and
did not testify because she did not want to get him in trouble.
The jury convicted Kariuki of one count of rape of a child and assault in the
second degree by strangulation.1
I The jury acquitted Kariuki on the second count of rape of a child and the child molestation charge. The Jury was unable to reach a verdict on the remaining charges and a mistrial was declared as to those charges.
- 3- No. 76339-3-1/4
ANALYSIS
Kariuki challenges the sufficiency of the evidence supporting his conviction
for second degree assault by strangulation. Sufficiency of the evidence is a
question of law that we review de novo. State v. Rich, 184 Wn.2d 897, 903, 365
P.3d 746 (2016). The test is whether, viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found guilt 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. Id.
To convict of assault by strangulation, the State must prove that the
defendant compressed the victim's neck and thereby either (1) obstructed the
person's blood flow or ability to breathe or (2) intended to obstruct the person's
blood flow or ability to breathe. RCW 9A.36.021(1)(g); RCW 9A.04.110(26).
Kariuki argues that the evidence at trial was insufficient for a reasonable person to
conclude that he obstructed S.R.'s blood flow or her ability to breathe or acted with
the specific intent to cause that result.
We disagree. Officer Blackshear saw bruising on S.R.'s neck. He
documented her bruises by photographing them. These photos were admitted at
trial. Blackshear described what he'd seen as a long red mark" in the center of
her throat. He also testified he found vomit in the backseat of his patrol car after
transporting S.R. to the hospital. Medical personnel testified that vomit is a
symptom of strangulation. The nurse who attended to S.R. testified that she saw
and photographed a 1.5 cm by 1 cm bruise on the anterior medial portion of S.R.'s
-4 - No. 76339-3-1/5
neck, near her trachea. The social worker and the emergency room doctor both
testified that S.R. reported she had been choked.
Proof of intent can be made through circumstantial evidence. State v.
Hagler, 74 Wn. App. 232, 236, 872 P.2d 85(1994). Intent to commit a crime may
be inferred from a defendant's conduct where it is plainly indicated as a matter of
logical probability. In re Personal Restraint Petition of Fuamaila 131 Wn. App.
908, 923 n.23, 924, 131 P.3d 218 (2006)(evidence of intent to murder Inferred
from victim's multiple stab wounds)(quoting State v. Myers, 133 Wn.2d 26, 38,
941 P.2d 1102 (1997)). Evidence of intent is gathered from all of the
circumstances of the case. State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320
(1994). Based on all of the evidence presented to the jury In this case, it could
reasonably conclude that the injury on S.R.'s trachea—caused by a force strong
enough to cause bruising—was indicative of an intent to obstruct S.R.'s ability to
breathe. The jury could reasonably infer that Kariuki injured S.R. with the intent to
obstruct S.R.'s breathing.
Kariuki also challenges the admission of S.R.'s hearsay statements to
Heath, the social worker. He objects to Heath's testimony that S.R. told her that
Kariuki slapped her, choked her, and pushed her Into a dresser. Kariuki contends
this statement was not within the medical hearsay exception because it attributed
fault.
We review the trial court's decision to admit a statement under a hearsay
exception for abuse of discretion. State v. Magers, 164 Wn.2d 174, 187, 189 P.3d
126 (2008). The trial court abuses its discretion if its decision is manifestly
unreasonable or based upon untenable grounds or reasons. Id. at 181. -5- No. 76339-3-1/6
Statements made for the purpose of medical diagnosis or treatment are
admissible as medical hearsay. ER 803(a)(4). Because they are not reasonably
pertinent to diagnosis or treatment, statements attributing fault are not generally
within this exception. State v. Redmond, 150 Wn.2d 489, 496-97, 78 P.3d 1001
(2003). But the admissibility of a statement as medical hearsay depends on the
specific context in which the statement was made. In re Dependency of Penelope
B., 104 Wn.2d 643, 656, 709 P.2d 1185(1985). We have recognized attributions
of fault as medical hearsay in cases of child abuse and domestic violence. State
v. Sims, 77 Wn. App. 236, 239, 890 P.2d 521 (1995). In such cases, statements
attributing fault are pertinent to the treatment of the victim's psychological and
emotional injuries, which may include recommendations on how to prevent a
recurrence of abuse. Id. at 239-40. See also State v. Butler, 53 Wn. App. 214,
222, 766 P.2d 505(1989).
In this case, the trial court heard argument concerning S.R.'s hearsay
statements in pretrial motions. The court considered the specific facts of this case,
particularly the romantic relationship between Kariuki and S.R.; their ages; the
proximity of their homes; and the fact that the alleged violence caused
psychological harm that led S.R. to attempt suicide. Given these facts, the court
ruled that S.R.'s statements attributing fault to Kariuki were reasonably pertinent
to medical diagnosis and treatment.
The trial court did not abuse its discretion. The court properly considered
S.R.'s statements in the specific context of this case. The decision is based on
proper grounds and is not manifestly unreasonable.
-6 - No. 76339-3-1/7
Furthermore, even if the trial court erred, the error was harmless. An
erroneous decision to admit evidence is grounds for reversal only if, within
reasonable probabilities, the error materially affected the outcome of the trial.
State v. Tharp, 96 Wn.2d 591, 599,637 13.2d 961 (1981). In this case, Trent and
Chamberlain testified that S.R. was in a relationship with Kariuki, visited him on
May 11, and was distraught after the visit. The doctor, nurse, and responding
officer each testified that they saw bruises on S.R.'s neck. Photographs of the
bruises were admitted into evidence. The doctor testified that S.R. told him that
her boyfriend choked and attacked her. The nurse testified that bruising is one
sign of strangulation. Given this unchallenged evidence, it is not reasonably
probable that the outcome of the trial would have been different if S.R.'s hearsay
statement to the social worker had not been admitted.
Affirmed.
WE CONCUR: _,'IOluxor-, g 4 te/ 4-C47-
-7-