                                                                      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RORY ALAN STAR,                             )         UNPUBLISHED OPINION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
No. 35145-9-III
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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No. 35145-9-III
State v. Star


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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State v. Star


   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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No. 35145-9-III
State v. Star


       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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State v. Star


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

                                             6
No. 35145-9-III
State v. Star


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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