                                                                           FILED 

                                                                         SEPT 9,2014 

                                                                Tn the Office of the Clerk of Court 

                                                              W A tate Court of Appeal , Division In 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )        No. 30886-3-111
                      Respondent,             )
                                              )
       v.                                     )
                                              )
CHRISTOPHER L. JONES,                         )        UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -    Christopher Jones appeals his convictions for second degree

assault (domestic violence) and bail jumping, primarily arguing that the court erred in not

returning a bench verdict of third or fourth degree assault. We affmn.

                                          FACTS

       Mr. Jones fought with Tanya Ponce in the bedroom of her apartment. Neighbors

heard her yelling for help and called police around 6:00 a.m. Both Mr. Jones and Ms.

Ponce explained to responding officers what had happened.

      The couple had been out together the night before and returned to Ms. Ponce's

apartment. Both had been drinking, and Ms. Ponce also took a number of prescription

medicines; some of those medications can cause balance problems. An argument ensued

and Mr. Jones left to return to his own residence.
No. 30886-3-II1
State v. Jones


       He returned to Ms. Ponce's apartment early in the morning at her request. The

argument, however, resumed immediately, with Ms. Ponce accusing Mr. Jones of being

interested in other women. Mr. Jones told police that Ms. Ponce came at him with a

pitcher of lemonade and he used his legs to push her away. She hit the nightstand or

dresser before falling to the floor, causing bleeding from the back of her head. A medical

examination also showed that her ulna was broken.

       Charges of second degree assault, failing to register as a sex offender, and bail

jumping were filed. At trial, Mr. Jones waived jury. His attorney apologized for not

notifying the court earlier that jury would be waived. He told the court that he

anticipated his client would be assessed the jury fee if convicted and volunteered to pay

the costs because he did not give his client the timely opportunity to decide whether to

waive Jury.

       At trial the neighbors testified to hearing Ms. Ponce shout that she did not want

Mr. Jones to hit her or hurt her as well as her call for aid. An officer testified that Mr.

Jones told the officer "I did it." Ms. Ponce, however, testified that she could not

remember what happened or how she fell and hit the dresser with her head. Mr. Jones

testified that he did not kick Ms. Ponce, but that she fell after he "flinched." Officers also

testified that Ms. Ponce was unsteady on her feet when they contacted her.




                                              2

No. 30886-3-III
State v. Jones


       A doctor testified that the ulna fracture was commonly referred to as a "night stick

fracture" and was a common defensive injury caused by using the arm to block a blow.

The doctor, however, could not rule out the fall as a cause of that injury.

       The court convicted Mr. Jones of second degree assault and bail jumping; the

court found him not guilty of the failure to register allegation. Findings in support of the

bench verdict also were entered. The court found that the head laceration and the ulna

fracture each amounted to substantial bodily injury. The court also entered findings that

the defendant's testimony was not credible, that Mr. Jones did intentionally assault Ms.

Ponce, and that he thereby recklessly inflicted substantial bodily injury.

       The court imposed a standard range prison sentence for the second degree assault .

conviction and also assessed jury fees against Mr. Jones. Mr. Jones then timely appealed·

to this court.

                                          ANALYSIS

       The appeal challenges the sufficiency of the evidence to support the assault

conviction as well as the court's decision to assess jury fees against Mr. Jones. The two

issues will be addressed in that order.

       Assault Conviction

       The second degree assault charge in this case was filed under a theory of intentional

assault recklessly causing injury. RCW 9A.36.021(l)(a). Mr. Jones contends, primarily,




                                             3

No. 30886-3-III
State v. Jones


that the evidence did not support the finding that he recklessly caused Ms. Ponce's injuries.

He asks that we reduce his conviction to either third or fourth degree assault. 1

       Well settled standards govern review of this argument. The question presented in

a challenge to evidentiary sufficiency is whether there was evidence from which the trier

of fact could find each element of the offense was proven beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);

State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). The reviewing court will

consider the evidence in a light most favorable to the prosecution. Id.

       A court's bench trial findings are reviewed for substantial evidence, which is

defined as "a quantum of evidence sufficient to persuade a rational fair-minded person the

premise is true." Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879,

73 PJd 369 (2003). All evidence is viewed in the light most favorable to the prevailing

party and deference must be given to the fact finder. Freeburg v. City a/Seattle,

71 Wn. App. 367, 371-72, 859 P.2d 610 (1993). An appellate court may not substitute its

view of the evidence for that of the fact finder. Quinn v. Cherry Lane Auto Plaza, Inc.,

153 Wn. App. 710, 717, 225 PJd 266 (2009). A trial court's legal determinations are

reviewed de novo. Sunnyside, 149 Wn.2d at 879-80.




       1 In light of our disposition, we do not analyze the request for a lesser degree
offense verdict.


                                             4

No. 30886-3-111
State v. Jones


       Mr. Jones challenges findings of fact 25,26, and 27, as well as conclusion oflaw 1.

His evidentiary sufficiency challenge is woven into his challenges to finding 27 and

conclusion 1. We address first his challenges to findings 25 and 26.

       Finding 25 states: "The photos of the scene show that the cup of lemonade referred

to by Ms. Ponce was not empty." Mr. Jones argues that this finding is incorrect,

contending that he testified to the contrary and that officers saw lemonade on the wall.

This finding is part of a series of findings relating to the credibility of Mr. Jones and Ms.

Ponce, both of whom testified that she did throw or may have thrown lemonade on Mr.

Jones. See Clerk's Papers (CP) at 51 (Finding of Fact 19-24).

       Conflicting evidence does not mean that ajudge's factual finding is in error. It is,

after all, the purpose of the findings to resolve conflicts in the evidence. There was

testimony that exhibit 21 showed two cups, one of which contained lemonade. The trial

judge was free to credit this evidence rather than the contrary testimony from Mr. Jones.

The finding, thus, is supported by the evidence. 2

       Finding 26 states: "The defendant would have shoved Ms. Ponce with sufficient

force to cause her to have a significant laceration on her head." Mr. Jones argues that

none of the evidence specifically addressed the force used to send Ms. Ponce to the floor


       2 Appellant did not designate the photographs admitted at trial as exhibits for this
appeal. Accordingly, his argument that the "photos of the scene" did not show lemonade
must fail where he did not provide the photos for this court's review. E.g., State v. Rienks,
46 Wn. App. 537, 544-45,731 P.2d 1116 (1987).

                                              5

No. 30886-3-II1
State v. Jones


and emphasizes that she was unsteady on her feet due to the medications. This contention

is without merit. The finding simply states the obvious: Mr. Jones shoved Ms. Ponce and

she hit the floor. Ergo, he used "sufficient force" to do so. Both Mr. Jones and Ms.

Ponce, in their statements to the police, attributed the bleeding cut on Ms. Ponce's head to

the fact that she struck the dresser on her way to the floor. Thus, the finding that the force

used was sufficient to cause the laceration is amply supported by the evidence. Finding 26

is supported by substantial evidence.

       Finding 27 states: "The defendant shoved Ms. Ponce intentionally. That intentional

act recklessly inflicted substantial bodily harm." CP at 51. Conclusion 1 similarly states:

"The defendant intentionally assaulted Tonya Ponce and thereby recklessly caused her

substantial bodily harm." CP at 52. Mr. Jones's specific argument against finding 27 is a

contention that it is a legal conclusion rather than a factual finding.

       While he is correct that finding 27 substantially parallels legal conclusion 1, that

does not mean that finding 27 is not a factual finding. We believe it is. The first

sentence of the finding states that the defendant intentionally shoved Ms. Ponce. That is

a factual finding of intentional conduct-in other words, the contact between the two was

not an accident. The second sentence of the finding then states that the intentional act

resulted in "recklessly inflicted substantial bodily harm." This sentence likewise contains

several factual determinations-the victim suffered substantial bodily harm, the harm




                                               6

No. 30886-3-III
State v. Jones


was caused by the intentional shove, and the consequence of the shove was that injuries

were inflicted "recklessly."

       Although the word "recklessly" has legal connotations in many cases, including

this one, it is also a factual determination. Here, it is a determination that Mr. Jones

recklessly, rather than intentionally, caused the injuries. In other words, he did not intend

to cause the laceration, but his intentional act recklessly caused the injury. This is a

factual determination as well as a legal conclusion.

       It is not surprising that factual determinations can overlap legal conclusions.

Statutes are written in terms of elements that must be established. The facts that prove the

elements of the offense also result in a legal conclusion that the elements were proven.

Finding 27 is an example of a factual determination that also has a legal consequence and,

thus, can also be labeled a conclusion of law. Accordingly, we reject appellant's

argument that finding 27 is solely a legal conclusion. It also is a factual determination.

       We thus turn to the substantive challenge presented by this appeal. Mr. Jones

argues that the evidence does not support the conclusion that he recklessly inflicted injury

on Ms. Ponce. Specifically, he contends that there is no evidence that he was aware of

the risk of substantial bodily injury from shoving Ms. Ponce.

      A person acts recklessly when he "knows of and disregards a substantial risk that ·

a wrongful act may occur and his or her disregard of such substantial risk is a gross

deviation from the conduct that a reasonable person would exercise in the same situation."

                                              7

No. 30886-3-II1
State v. Jones


RCW 9A.08.010(1)(c). Recklessness is also established when the defendant acts

intentionally or knowingly. RCW 9A.08.010(2).

       Mr. Jones's argument is slightly mis-focused. He argues that there is no evidence

that he foresaw the injuries Ms. Ponce suffered. However, the definition of recklessness

focuses not on the outcome of the actions, but on whether there is a "substantial risk that

a wrongful act may occur." RCW 9A.08.010(1)(c) (emphasis added). Here, the

wrongful act was the fact of injury occurring from shoving Ms. Ponce into the furniture

and onto the floor. Shoving someone in such a manner certainly presents a substantial

risk of injury.

       An illustrative case is State v. Keend, 140 Wn. App. 858, 166 P.3d 1268 (2007).

There the defendant also was charged with second degree assault for intentionally

assaulting another and recklessly injuring him. Jd. at 863. He had slugged the victim in

the face, breaking his jaw. Jd. The court analyzed the statute and its application to the

case, noting three ways in which the statute arguably could apply:

       (1) Keendintended to break the victim's jaw, (2) Keend knew that the
       victim was particularly vulnerable to a broken jaw if punched in the face,
       or (3) Keend knew and disregarded the risk of breaking the victim's jaw.

Jd. at 867.

       With respect to the third prong, the court explained how the defendant's conduct

fit the statute in the course of rejecting the defendant's argument that a jury could

conclude that "a single punch does not create a 'substantial risk' ofa broken jaw."

                                              8

No. 30886-3-II1
State v. Jones


ld. at 869-70. Quoting from an earlier decision by another division, the Keend court

concluded that" any reasonable person knows that punching someone in the face could

result in a broken jaw" or other injury constituting substantial bodily harm. ld. at 870

(citation omitted).

       Similarly here, a reasonable person would appreciate that pushing another

person's head into a hard object such as a dresser or the floor might cause a laceration to

the head. Shoving a person in such a manner might also result in a broken bone in the

ann or wrist. Thus, we have no difficulty in concluding that the evidence was sufficient ·

to support the determination that substantial bodily injury is a reasonably foreseeable

consequence of shoving an unsteady person into solid furniture or onto the floor.

       The evidence supported the bench verdict.

       Jury Fee

       Mr. Jones also argues that the court erred in imposing the jury fee on him.3 There

was no abuse of the court's discretion.




        3 Mr. Jones's counsel presented a third argument that noted the judgment and
sentence form referenced an exceptional sentence even though one had not been imposed.
However, the trial court corrected the error after it was called to its attention. Accordingly,
this issue is moot and will not be further addressed here. Mr. Jones filed a Statement of
Additional Grounds that raises complaints about the Bail Jumping conviction as well as the
Failure to Register charge on which he was acquitted. He presents no cognizable error for
this court to address with respect to the Bail Jumping charge, and the acquittal moots his
argument concerning the Failure to Register count.

                                              9

No. 30886-3-III
State v. Jones


       RCW 10.0 1.160( 1) reads in part that a "court may require a defendant to pay costs."

In tum, costs can include a jury fee of $250. RCW 10.01.160(2); RCW 10.46.190;

RCW 36.18.016(3)(b); State v. Hathaway, 161 Wn. App. 634, 652-53, 251 PJd 253,

review denied, 172 Wn.2d 1021 (2011). A trial court's decision to impose court costs is

reviewed for abuse of discretion. State v. Moon, 124 Wn. App. 190, 193, 100 P.3d 357

(2004). Discretion is abused when it is exercised on untenable grounds or for untenable

reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).

       The court had tenable grounds for imposing the jury demand fee. The statute

authorizes the court to impose costs on "a defendant" who has been convicted.

RCW 10.0 1.160( 1). It does not authorize the imposition of costs on counsel. Here, the

jury was not waived until the last moment after jurors had gathered for the trial. The

county thus suffered costs from having the jurors present and the trial court had valid

grounds for imposing the jury fee.

       The fact that defense counsel volunteered to pay the jury demand fee when the

jury was waived 4 did not mean that the trial court had to decline to impose the cost on the

defendant at sentencing. Counsel may ultimately pay that cost for his client, but that

offer did not prevent the trial court from exercising its statutory authority at sentencing.




       4 The offer was not repeated at sentencing and counsel did not remind the court of
the reason for the late waiver of jury.

                                              10
No. 30886-3-111
State v. Jones


Accordingly, the court did not abuse its discretion when it imposed the jury fee as part

of the costs assessed against the defendant.

       The convictions are 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: 




                     I
                         5



       Lawrence-Be ey,1.




                                               11 

