      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                      )       No. 76339-3-1                                  n
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MICHAEL WAINAINA KARIUKI,                 )        UNPUBLISHED OPINION                   —iv      --- r
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                     Appellant.            )      FILED: July 30, 2018                    tr%       .c.i.ta
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      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.
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       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.

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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


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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.
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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.


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      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:
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