          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      ]       No. 69517-7-1
                                                                                      CO    ;
                                                                                      CI
                          Respondent,     '       DIVISION ONE


                v.

                                                  UNPUBLISHED OPINION
ROBERT EUGENE DEAN, III,
                                                                                       en


                           Appellant.         i   FILED: September 22, 2014

      Schindler, J. —A jury convicted Robert Eugene Dean, III of assault in the

second degree. Dean appealed his conviction, arguing the jury instruction defining

"reckless" as "a wrongful act" rather than using the specific statutory language of

"substantial bodily harm" impermissibly relieved the State of its burden of proof.

Adhering to our decision in State v. Johnson, 172 Wn. App. 112, 297 P.3d 710 (2012),

we reversed. State v. Dean, 179 Wn. App. 1012, 2014 WL 295841. In State v.

Johnson, 180 Wn.2d 295, 307-08, 325 P.3d 135 (2014), the Washington Supreme

Court held that the instruction defining "reckless" need not include the specific statutory

language where the to-convict instruction properly set forth the elements of the crime,
and remanded this case for reconsideration. Consistent with Johnson, we affirm the

conviction.
No. 69517-7-1/2


       Ibrahim Al-Sebah worked as a security guard at Safeway. Al-Sebah testified that

on the evening of July 21, 2012, he saw an individual, later identified as Robert Eugene

Dean, III, put a bottle of ketchup and a box of frozen chicken into his backpack. Al-

Sebah confronted Dean and told him to either return the items or immediately pay for

the ketchup and frozen chicken. Al-Sebah testified that as he was removing the items

from the backpack, Dean cut him with a small knife on his face and wrist. Dr. Craig

Nattkemper testified that the laceration to Al-Sebah's left ear required 15 sutures and

the laceration on the right wrist required 4 stitches.

       The State charged Dean with assault in the second degree. The State alleged

Dean intentionally and recklessly inflicted substantial bodily harm and assaulted Al-

Sebah with a deadly weapon.

       The court instructed the jury on assault in the second degree and the lesser

included offense of assault in the fourth degree. The to-convict instruction states:

              To convict the defendant of the crime of assault in the second
       degree, each of the following two elements of the crime must be proved
       beyond a reasonable doubt:
             (1)   That on or about July 21, 2012, the defendant:
                      (a)    intentionally assaulted Ibrahim Al-Sebah and thereby
                             recklessly inflicted substantial bodily harm; or
                      (b)    assaulted Ibrahim Al-Sebah with a knife, and that
                            such knife constituted a deadly weapon; and
              (2)    That this act occurred in the State of Washington.
              If you find from the evidence that element (2) and either of
       alternative elements (1)(a) or (1)(b) have been proved beyond a
       reasonable doubt, then it will be your duty to return a verdict of guilty. To
       return a verdict of guilty, the jury need not be unanimous as to which of
       alternatives (1)(a) or (1)(b) has been proved beyond a reasonable doubt,
       as long as each juror finds that either (1)(a) or (1)(b) has been proved
       beyond a reasonable doubt.
              On the other hand, if, after weighing all of the evidence, you have a
       reasonable doubt as to either element (1) or (2), then it will be your duty to
       return a verdict of not guilty.
No. 69517-7-1/3


       The jury instruction defining "reckless" states:

              A person is reckless or acts recklessly when he or she knows of
       and disregards a substantial risk that a wrongful act or result may occur
       and this disregard is a gross deviation from conduct that a reasonable
       person would exercise in the same situation.
              When recklessness as to a particular fact or result is required to
       establish an element of a crime, the element is also established if a
       person acts intentionally or knowingly as to that fact or result.

       The jury convicted Dean as charged of assault in the second degree.

       Dean appealed, arguing the jury instruction defining "reckless" as "a wrongful act"

rather than using the statutory definition of "substantial bodily harm" misstated the law

and impermissibly relieved the State of its burden of proof.

       In Johnson, 172 Wn. App. at 112, we addressed and lowered the State's burden

of proof. In Johnson, the State charged the defendant with three counts of assault in

the second degree. Johnson, 172 Wn. App. at 118. The to-convict instruction properly

required the State to prove that the defendant" 'recklessly inflicted substantial bodily

harm.'" Johnson, 172 Wn. App. at 129-30.1 But the definitional instruction only

required the State to prove that the defendant disregarded the risk of" 'a wrongful act.'"

Johnson, 172 Wn. App. at 130.2 We held that in defining "reckless," the court should

have used the specific statutory language for assault in the second degree of

"substantial bodily harm" rather than "wrongful act." Johnson, 172 Wn. App. at 132-33.

       The Washington State Supreme Court reversed. Johnson, 180 Wn.2d at 307-08.

The court held that the instruction defining "reckless" need not include the specific

statutory language where the to-convict instruction properly set forth the elements of the

crime. Johnson, 180 Wn.2d at 306. The court concluded that the instruction defining


       1 Emphasis in original.
       2 Emphasis in original.
No. 69517-7-1/4



"reckless" did not relieve the State of its burden of proof because the to-convict

instruction properly laid out the essential elements of the crime of assault in the second

degree. Johnson, 180 Wn.2d at 306. Because the " 'to convict' instruction!,] the

primary 'yardstick' the jury uses to measure culpability," was accurate, "[tjaken in their

entirety," the instructions were sufficient. Johnson, 180 Wn.2d at 306.

      It is not error to instruct the jury on the generic definition of "reckless" as
      long as the jury is also given a "to convict" instruction that lists every
      element of the crime the State needs to prove in order to convict the
      defendant, including the charge-specific language for "reckless."

Johnson, 180 Wn.2d at 298.

       Because the to-convict instruction and instruction defining "reckless" in Johnson,

180 Wn.2d at 304-05, are nearly identical to those here, we affirm Dean's conviction.

       In his "Statement of Additional Grounds for Review," Dean argues insufficient

evidence supports the conviction of assault in the second degree because the police

never recovered the weapon he used to assault Al-Sebah. In deciding whether

sufficient evidence supports a conviction, we must view the evidence in the light most

favorable to the State to determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992). A challenge to the sufficiency of the evidence

admits the truth of the State's evidence. Salinas, 119 Wn.2d at 201. "[A]ll reasonable

inferences from the evidence must be drawn in favor of the State and interpreted most

strongly against the defendant." Salinas, 119 Wn.2d at 201. We defer to the trier of fact

on "issues of conflicting testimony, credibility of witnesses, and the persuasiveness of

the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004),
No. 69517-7-1/5



abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354, 158 L. Ed. 2d 177(2004).

      Al-Sebah testified that Dean cut his wrist and ear with a knife. Al-Sebah's co

worker, Mike Fritschy, testified that he saw Dean reach into his pocket and pull out "a

pointy object," and then strike the side of Al-Sebah's head. Dr. Nattkemper, the

emergency room physician who treated Al-Sebah's injuries after the assault, testified

that Al-Sebah had two lacerations, one on his right wrist and one on the left side of his

face extending to his ear, both of which were consistent with a knife blade. Sufficient

evidence supports the conclusion that Dean used a knife in the assault.

       Affirm.




                                                        A^^dl flg.
WE CONCUR:
