                                                     P'•
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                                                       _COURT OFC'APPEAL-SMIV I
                                                           STA;E'OF WASHINGTOtt

                                                           2019 JAN 1 14 AN 11: 2.1


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,
                                                  No. 77169-8-1
                     Respondent,
                                                  DIVISION ONE
              V.
                                                  UNPUBLISHED OPINION
 ALEXANDER A. SOLORAZANO, AKA
 ALEXANDER A. AOLORAZANO,
                                                  FILED: January 14, 2019
                     A    ellant.

      APPELWICK, C.J. —A jury found Solorazano guilty of second degree assault
with a deadly weapon. Solorazano argues that the State failed to prove that the

knife he had was a deadly weapon. And, he argues that the State failed to prove

that he had the specific intent to assault Valdovinos. We affirm.

                                     FACTS

       On October 27, 2016, police responded to a domestic dispute at a mobile

home park in Kent, Washington. The dispute involved a male with a knife. At the

scene, police identified Alexander Solorazano as the male and placed him in

custody.

       Police then entered the mobile home. Inside, they approached Blanca

Valdovinos, Solorazano's girlfriend, and her daughter, M.V. Valdovinos appeared

frantic and scared. Police collected what they believed to be the knife used in the

altercation. An officer testified that he did not notice any injuries on Valdovinos,

and that either Valdovinos or M.V. led him to the knife. The knife was 12 inches
No. 77169-8-1/2


long with a 7 inch blade. At trial, the knife was admitted into evidence without

objection.

      The State charged Solorazano with second degree assault domestic

violence, pursuant to RCW 9A.36.021(1)(c). It alleged that Solorazano assaulted

Valdovinos "with a deadly weapon, to-wit: a knife." At trial, the jury heard the 911

call from the night of the incident.1 The dispatcher on the call first spoke to

Valdovinos.   At one point during the call, Valdovinos stated, "Alex!         Alex!

(indiscernible). No. He have [sic] knife. He have [sic] knife." And, when the

dispatcher asked what was happening, M.V. responded, "I don't know. I just woke

up, and next thing I know he was -- he had my mom in a headlock, and he had a

knife. And now, I don't know what's happening."

       M.V. then told the dispatcher that she did not see the knife, but her mom

did. And,she told the dispatcher that she, her mom,and her youngest sibling were

all locked in a room. Solorazano was not with them at that point, and M.V. did not

know where he had gone. Neither M.V. nor Valdovinos testified at trial.

      The jury found Solorazano guilty of second degree assault as charged.2

Solorazano appeals.




       1 The trial court found the tape admissible under the present sense
impression and excited utterance exceptions to the hearsay rule. The trial court
ruled that the tape was not "testimonial." Solorazano does not challenge the tape's
admission into evidence on appeal.
       2 The jury also found aggravating circumstances. But, the trial court granted
Solorazano's postconviction motions to dismiss the domestic violence designation
and child presence aggravator, based on insufficient evidence.

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No. 77169-8-1/3


                                    DISCUSSION

       Solorazano argues that there was insufficient evidence, asserting that the

State failed to prove (1) that the knife was a deadly weapon, and (2) that he had

the specific intent to assault Valdovinos.

       We review challenges to the sufficiency of the evidence de novo. State v.

Rich, 184 Wn.2d 897, 903, 365 P.3d 746(2016). Evidence is sufficient to support

a conviction where, after viewing the evidence in the light most favorable to the

State, any rational trier offact could have found the essential elements of the crime

beyond a reasonable doubt. In re Pers. Restraint of Martinez, 171 Wn.2d 354,

364, 256 P.3d 277 (2011). When an appellant challenges the sufficiency of the

evidence, he admits the truth of the State's evidence and all inferences that can

reasonably be drawn therefrom. Id. Circumstantial and direct evidence are equally

reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We leave

questions of credibility, persuasiveness, and conflicting testimony to the jury. Id.

       The State charged Solorazano with second degree assault under RCW

9A.36.021(1)(c). The jury instructions provided that "[a] person commits the crime

of assault in the second degree when he or she assaults another with a deadly

weapon."3 The instructions defined "assault" as "an act, with unlawful force, done

with the intent to create in another apprehension and fear of bodily injury, and

which in fact creates in another a reasonable apprehension and imminent fear of

bodily injury even though the actor did not actually intend to inflict bodily injury."

       3 Jury instructions not objected to become the law of the case. State v.
Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). Solorazano did not object to
these instructions.

                                              3
No. 77169-8-1/4


       The jury instructions defined "[d]eadly weapon" as "any weapon, device,

instrument, substance, or article, which under the circumstances in which it is

used, attempted to be used, or threatened to be used, is readily capable of causing

death or substantial bodily harm." The jury instructions defined "act[ing] with intent

or intentionally" as "acting with the objective or purpose to accomplish a result that

constitutes a crime."

       Solorazano argues that the State failed to prove that the knife was a deadly

weapon. Relying on Martinez, he argues that the State proved only that he

possessed a knife, "which completely fails to provide any proof of the offense."

Solorazano also argues that the State failed to prove that he had the specific intent

to assault Valdovinos. He argues that an inference that he "specifically intended

to cause apprehension" is "not reasonable" and "based solely on speculation."

       In Martinez, police officers responded to a potential burglary at a farm shop.

171 Wn.2d at 357. One officer found Martinez there and began chasing him. Id.

at 358. When the officer caught up to Martinez and placed him in handcuffs, he

noticed an empty knife sheath on Martinez's belt. Id. at 358. Officers then located

a knife about 15 feet from the farm shop, and Martinez identified the knife as his

own. Id. A jury found Martinez guilty of first degree burglary, which required the

State to prove that he was armed with a deadly weapon or assaulted another

person. Id. at 359, 364.

       The State Supreme Court held that RCW 9A.04.110(6), which defines

"deadly weapon" for Washington's criminal code, requires more than mere

possession where the weapon is not a firearm or explosive. Id. at 364, 366.


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No. 77169-8-1/5


Instead, a weapon's "status rests on the manner in which it is used, attempted to

be used, or threatened to be used." Id. at 366. The court found that the only

evidence that Martinez attempted to use the knife was his unfastened sheath. Id.

at 369. No one saw him with the knife, he manifested no intent to use it, and no

one saw him reach for the knife after he was apprehended. Id. at 368. Accordingly,

the court determined that the evidence was insufficient to lead a rational fact finder

to find intent to use the weapon beyond a reasonable doubt. Id. at 369.

       But, unlike Martinez, here there is evidence that Valdovinos saw Solorazano

display the knife and that he had committed an assault when he placed her in a

headlock. During the 911 call, Valdovinos stated,"Alex! Alex! (indiscernible). No.

He have [sic] knife. He have [sic] knife." M.V. then told the dispatcher that

Solorazano had her mom in a headlock. Valdovinos, M.V., and M.V.'s youngest

sibling stayed locked in a room while M.V. spoke to the dispatcher. An officer

testified that when they approached the mobile home, Valdovinos appeared to be

frantic and scared. And, he testified that either Valdovinos or M.V. led him to the

knife. The knife had a seven inch blade.

       A rational trier of fact could infer from this evidence that Valdovinos was in

fact placed in fear of bodily harm from the manner in which Solorazano used the

knife. Solorazano does not argue that Valdovinos's fear was not reasonable.

"Intent is rarely provable by direct evidence, but may be gathered, nevertheless,

from all the circumstances surrounding the event." State v. Gallo, 20 Wn. App.

717, 729, 582 P.2d 558 (1978). Here, a rational trier of fact could infer from

Valdovinos's reasonable fear that Solorazano displayed the knife in a manner


                                             5
No. 77169-8-1/6


intended to create in Valdovinos an apprehension and a fear of substantial bodily

injury. And, a rational trier offact could infer that, under the circumstances in which

Solorazano displayed the knife, it was capable of causing death or substantial

bodily harm. Accordingly, the evidence was sufficient to prove that Solorazano

used the knife as a deadly weapon, and that he specifically intended to assault

Valdovinos.

       We affirm.



                                                                         &cl
WE CONCUR:




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