State of Washington v. Rory Alan Star ( 2018 )

FILED
OCTOBER 16, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35145-9-III
Respondent, )
)
v. )
)
RORY ALAN STAR, ) UNPUBLISHED OPINION
)
Petitioner. )
SIDDOWAY, J. — Rory Alan Star appeals his two convictions for second degree
assault. He contends the evidence was insufficient to support the convictions. We reject
his challenges and affirm.
FACTS
The State charged Mr. Star with two counts of second degree assault, both
stemming from Mr. Star’s interactions with patrons of a Starbucks coffee shop in
Richland, Washington. The facts are related from the trial testimony.
Mr. Star, known to local law enforcement as a homeless man suffering from a
severe alcohol problem, entered the Starbucks on the afternoon of October 19, 2016. He
attempted to converse with Sara Wright, a Starbucks patron who was sitting and working
on her computer. Ms. Wright, unable to understand what Mr. Star was saying, smiled
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State v. Star
and nodded at Mr. Star before turning back to her computer. Mr. Star attempted to talk
with Ms. Wright for several more minutes before exiting the Starbucks, where he stood
and tried to make eye contact with Ms. Wright through the shop window. After these
efforts also proved unsuccessful in obtaining Ms. Wright’s attention, Mr. Star re-entered
the Starbucks with a visibly angry demeanor.
According to Ms. Wright, Mr. Star paced back and forth before pulling up a bar
stool and sitting shoulder-to-shoulder next to her, approximately one foot away. He
directed profanity at her, calling her “[y]ou bitch, F-ing bitch.” Report of Proceedings
(RP) (Dec. 19, 2016) at 104. He asked her if she wanted to see what was in his pocket,
pulled out a knife and “was kind of like shaking it in [Ms. Wright’s] face.” RP at 104.
Mr. Star was holding the knife upright, pointing it directly at Ms. Wright, while he
continued to curse at her. Ms. Wright testified that she was “terrified that I felt
targeted. . . . I was fearful for my life.” RP at 109. She edged herself away from Mr.
Star and approached the customer counter, where she told Starbucks employee Jacob
Isley that Mr. Star had a knife. Ms. Wright then retreated to the employee break room,
where she unsuccessfully tried to lock herself in and decided to arm herself with a fire
extinguisher.
Another Starbucks patron, Robert Schweiger, called 911 on his cell phone after
seeing Mr. Star pull out the knife and point it at Ms. Wright. Once Ms. Wright retreated
to the employee area, Mr. Star turned his attention to Mr. Schweiger, who was still on the
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phone with 911. Mr. Star “aggressively approach[ed]” Mr. Schweiger, continuing to hold
the knife out in front of him, and yelling profanities at Mr. Schweiger, including “fucking
bitch, fucking cunt.” RP at 87. As Mr. Star approached Mr. Schweiger, who was
backing away, Mr. Star punched or knocked over a display sign while continuing to
swear. Mr. Schweiger testified that he was concerned for his safety and that he was
“surprised that nothing happened, no one [was] actually stabbed” because that was “a
definite[ ] threat at that time.” RP at 90.
Mr. Jacob Isley, who witnessed the interaction between Mr. Star and Mr.
Schweiger, was worried that Mr. Star was going to use the knife. He attempted to de-
escalate the situation by asking Mr. Star if he wanted a cup of coffee. The police arrived
soon thereafter, and observed Mr. Star holding a large knife. Mr. Star was taken into
custody after a brief struggle.
The State charged Mr. Star with two counts of second degree assault: one count
for Ms. Wright and one count for Mr. Schweiger. A jury found Mr. Star guilty on both
counts, and the court imposed concurrent sentences of 17 months confinement on each
count. Mr. Star timely appeals.
ANALYSIS
On appeal, Mr. Star claims there was insufficient evidence to convict him of either
count of second degree assault.
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A. STANDARD OF REVIEW FOR SUFFICIENCY CHALLENGES
Evidence is sufficient if, when viewed in the light most favorable to the State, it
permits a rational trier of fact to find the essential elements of the crime beyond a
reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980), overruled on
other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d
466 (2006). Courts must draw all reasonable inferences from the evidence in favor of the
State and interpret the evidence most strongly against the defendant. State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence receives the same
weight as direct evidence. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004),
abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004). Appellate courts defer to the fact finder on the
resolution of conflicting testimony, credibility determinations, and the persuasiveness of
the evidence. Id. at 874-75.
B. SECOND DEGREE ASSAULT
Mr. Star claims there is insufficient evidence to support his convictions because
the State failed to prove he had the requisite intent to cause fear and apprehension of
bodily injury where he merely displayed the knife to obtain attention and did not
expressly threaten to harm Ms. Wright or Mr. Schweiger. He contends his conduct may
have constituted unlawful display of a weapon but not second degree assault. We
disagree.
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The State charged Mr. Star under RCW 9A.36.021(1)(c), which provides that a
person is guilty of second degree assault if he or she “[a]ssaults another with a deadly
weapon.” Washington courts recognize three definitions of assault: (i) an unlawful
touching, (ii) an attempt with unlawful force to inflict bodily injury upon another, tending
but failing to accomplish it, and (iii) putting another in apprehension of harm. State v.
Hupe, 50 Wn. App. 277, 282, 748 P.2d 263 (1988), overruled on other grounds by State
v. Smith, 159 Wn. 2d 778, 154 P.3d 873 (2007). Since a knife is not a deadly weapon per
se, there must be some manifestation of willingness to use the knife to harm for it to be
considered a deadly weapon. In re Pers. Restraint of Martinez, 171 Wn.2d 354, 365-66,
256 P.3d 277 (2011); cf. State v. Gotcher, 52 Wn. App. 350, 356-57, 759 P.2d 1216(1988) (sufficient evidence of intent to use knife where knife was located in defendant’s
pocket and defendant was seen reaching for pocket during struggle with law enforcement
officers).
Mr. Star was convicted under the third definition of assault with respect to both
Ms. Wright and Mr. Schweiger. Where, as here, a defendant is charged with assault by
attempting to put another in apprehension of harm, the specific intent to cause reasonable
fear and apprehension of bodily harm is an essential element of second degree assault.
State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995); State v. Abuan, 161 Wn. App.
135, 158, 257 P.3d 1 (2011). “Intent is rarely provable by direct evidence, but may be
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gathered, nevertheless, from all of the circumstances surrounding the event.” State v.
Gallo, 20 Wn. App. 717, 729, 582 P.2d 558 (1978).
A court may infer the requisite intent to cause reasonable fear of harm where a
defendant wields a deadly weapon in a menacing or threatening manner towards a
particular person. See, e.g., State v. Johnson, 29 Wn. App. 807, 816, 631 P.2d 413 (1981)
(it is well-settled law that second degree assault is committed when, within shooting
distance, the defendant points a loaded gun at another); State v. Krup, 36 Wn. App. 454,
676 P.2d 507 (1984) (upholding second degree assault conviction where defendant
pointed knife at victim, threatened to kill her, and stabbed knife into counter top before
exiting victim’s store). However, a court may not infer the necessary intent from mere
display of a weapon. See, e.g., State v. Karp, 69 Wn. App. 369, 374-376, 848 P.2d 1304(1993) (noting that general menacing behavior with a weapon may violate the unlawful
display statute but will not constitute assault unless the menacing behavior is directed at
an individual).
The State’s evidence demonstrates that Mr. Star was visibly angry, yelling
profanities, and pointing the knife at both Ms. Wright and Mr. Schweiger. Ms. Wright
testified that Mr. Star shook the knife in her face when he was within arm’s length (and
striking distance) from her. Mr. Schweiger testified that once Mr. Star realized he was on
the phone with 911, Mr. Star aggressively approached him and punched a store display
while pointing the knife in his direction. Ms. Wright testified that Mr. Star’s actions
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made her fearful for her life, and Mr. Schweiger testified that he was afraid for his safety
and that he believed Mr. Star posed a definite threat.
A rational jury could infer from the combination of the hostile verbal encounters,
Mr. Star's visible agitation, and the wielding of the knife in a threatening manner directed
at Ms. Wright and Mr. Schweiger, that Mr. Star approached both Ms. Wright and Mr.
Schweiger with the intention of putting each of them in reasonable fear and apprehension
of bodily harm.
CONCLUSION
We conclude that sufficient evidence supports both of Mr. Star's convictions for
second degree assault.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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Lawrence-Berrey, C.J.
1 Pennell, J.
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