                                                                       FILED
                                                                   FEBRUARY 1, 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. 34574-2-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
CARLO MORRIS CERUTTI,                         )        UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, C.J. — A neighborhood garbage crisis led to Carlo Cerutti’s prosecution

for and conviction of second degree assault with a deadly weapon. On appeal, Cerutti

challenges the sufficiency of evidence to convict him of the crime. He claims that his use

of a sword to cut his neighbor’s hand did not constitute the exploit of a deadly weapon.

We disagree and affirm the conviction.

                                         FACTS

       This prosecution arises from the brandishing of a sword by Carlo Cerutti against

his neighbor, McGlother Parker. Because Cerutti asks that we review the sufficiency of

evidence, we purloin the facts from the trial testimony.

       McGlother Parker and Carlo Cerutti resided in adjacent units of a duplex on
No. 34574-2-III
State v. Cerutti


Wabash Avenue in Spokane. Before the events leading to the prosecution, Parker and

Cerutti’s prospective wife, Joyce, suffered an inimical relationship while Joyce lived

alone in one of the residences. When Cerutti joined Joyce in the residence, the

aggression and enmity worsened.

       On an unnumbered number of occasions, law enforcement intervened when

confrontations between McGlother Parker and the Cerutti couple escalated. Once Parker

struck Carlo Cerutti in the face purportedly in self-defense. On October 16, 2015, Parker

procured an anti-harassment order against Joyce and Carlo Cerutti. The tumultuous

relationship nonetheless ripened into criminal charges a month later.

       On November 14, 2015, McGlother Parker dismayly discovered another’s waste in

his outdoors garbage receptacle. Parker moved the refuse onto the Ceruttis’ adjacent

garbage can. After he returned inside his half of the duplex, Parker spied Joyce Cerutti

grab the transferred trash from her container and fling the trash toward Parker’s home.

Parker then exited his apartment, assembled the undesired rubbish, and hurled it in

Joyce’s direction. The refuse did not strike Joyce.

       A heated exchange banally ensued between McGlother Parker and Joyce Cerutti.

The Cerutti family entertained guests that day and the gaggle, including Carlo Cerutti,

paraded onto a patio and parted Parker and Joyce. The parties quieted and filed back

inside their respective sides of the duplex, but not before Carlo Cerutti spat in Parker’s

direction.

                                              2
No. 34574-2-III
State v. Cerutti


       Moments later, rubbish flew from an unknown hand toward McGlother Parker’s

apartment. The parties rushed outside and resumed the bellicosity. Parker and Joyce

Cerutti again shared pugnacious vocabularies until Carlo Cerutti separated the two.

Cerutti convinced Joyce to return inside. The testimony of Parker and Cerutti diverges

thereafter.

       According to McGlother Parker, Carlo Cerutti invited Parker to remain still,

because Cerutti had “something” for Parker. Report of Proceedings (RP) at 58-59. A

compliant Parker accepted the invitation and waited on his front doorstep. Cerutti

entered his duplex and returned with a bladed instrument in hand. Parker described the

intimidating implement as “a sword of some sorts, like a warrior-type battle sword with

four blades on it.” RP at 60.

       According to McGlother Parker, Cerutti swung the sword in Parker’s direction

three times, causing Parker to jump backwards. On at least one of the swings, Cerutti

employed the sword in a “chopping” motion. RP at 59. Parker instinctively reached for

the sword to stop the swinging of the weapon and thereby cut his left hand on a blade.

Parker noticed anger in Cerutti, and he worried about the extent to which Cerutti could

injure him. Parker, despite his hand injury, successfully disarmed Cerutti, returned to his

apartment, and called 911. Parker’s injury caused pain and required sutures.

       In his trial testimony, Carlo Cerutti disagreed that he returned outside with a sword

in hand. Cerutti testified that McGlother Parker entered Cerutti’s residence. Cerutti

                                             3
No. 34574-2-III
State v. Cerutti


grabbed the sword in an attempt to protect himself. Parker grabbed the blade while

Cerutti shoved Parker out the front door. Cerutti denied swinging the blade in Parker’s

direction. During trial testimony, Cerutti agreed that he grasped the sword because of its

intimidating nature, that the instrument could kill someone, and that the instrument

qualified as a deadly weapon.

       Two independent witnesses observed the confrontation, occurring outside the

duplex, between Carlo Cerutti and McGlother Parker. Blake Johnson observed the events

from across the street. Johnson did not know Cerutti or Parker before November 14. He

was visiting a friend’s house to conduct an estate sale. Johnson saw and heard the

Ceruttis and their guests surround Parker, call him names, and pretend to punch Parker.

Parker turned his back to the small crowd. A man spat on Parker’s back. Johnson judged

Parker as keeping calm and attempting to avoid a confrontation. The Ceruttis and guests

threw garbage in Parker’s yard, and Joyce Cerutti hurled rocks at Parker’s door. Johnson

never saw Parker enter the Cerutti residence. No trial counsel asked Johnson if he saw

Cerutti brandish a sword.

       A second percipient witness, Bernard Mallory, was visiting a friend on Wabash

Avenue. Mallory also had not met either Carlo Cerutti or McGlother Parker. As he

retrieved personal property from his car, Mallory glimpsed the altercation. He saw

Cerutti with a sword resting on his hip. Mallory then observed Cerutti lunge at Parker

and stab Parker in the hand. He never noticed Parker entering Cerutti’s home.

                                            4
No. 34574-2-III
State v. Cerutti


                                      PROCEDURE

       The State of Washington charged Carlo Cerutti with second degree assault with a

deadly weapon. A jury found Cerutti guilty as charged.

                                 LAW AND ANALYSIS

       Carlo Cerutti’s sole challenge on appeal is to the sufficiency of evidence to

convict him of second degree assault with a deadly weapon. We therefore outline

familiar principles of law with respect to sufficiency of evidence in a criminal

prosecution. To determine whether sufficient evidence supports a conviction, we view

the evidence in the light most favorable to the prosecution and determine whether any

rational fact finder could have found the elements of the crime beyond a reasonable

doubt. State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). “Substantial

evidence” is evidence sufficient to persuade a fair-minded person of the truth of the

asserted premise. State v. Stenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). In

claiming insufficient evidence, Cerutti necessarily admits the truth of the State’s evidence

and all reasonable inferences that can be drawn from it. State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). These inferences must be drawn in favor of the State and

interpreted most strongly against Carlo Cerutti. State v. Salinas, 119 Wn.2d at 201.

       RCW 9A.36.021 covers the crime of second degree assault. An offender may

commit the crime by various acts of violence, one of which act is the use of a deadly

weapon. RCW 9A.36.021 declares:

                                             5
No. 34574-2-III
State v. Cerutti


              (1) A person is guilty of assault in the second degree if he or she,
       under circumstances not amounting to assault in the first degree:
              ....
              (c) Assaults another with a deadly weapon.

Carlo Cerutti’s jury convicted him under RCW 9A.36.021(1)(c). RCW 9A.04.110(6)

defines a “deadly weapon” as:

              any . . . weapon, device, instrument, article, or substance . . . 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.

In turn, under RCW 9A.04.110(4)(b), “substantial bodily harm”

              means bodily injury which involves a temporary but substantial
       disfigurement, or which causes a temporary but substantial loss or
       impairment of the function of any bodily part or organ, or which causes a
       fracture of any bodily part.

       On appeal, Carlo Cerutti argues that, even when viewed in a light most favorable

to the State and when we analyze the manner in which he employed the sword, the trial

testimony failed to establish that his sword functioned as a deadly weapon. Cerutti

emphasizes that McGlother Parker did not testify as to the strength or velocity with which

he swung the sword or that Parker feared harm from the swinging of the sword.

       We disagree that no evidence showed that McGlother Parker feared from the

conduct of Carlo Cerutti. Parker testified that he instinctively reached for the weapon in

order to protect himself and because he knew not the extent to which Cerutti might

expend effort to harm him. Such defensive conduct connotes fear. From this testimony,


                                              6
No. 34574-2-III
State v. Cerutti


a jury could reasonably find that Parker feared for his safety, if not his life.

       Although evidence established fear, the State need not have proved fear. Because

the criminal code does not define “assault,” Washington courts employ three common

law definitions of “assault:” (1) an unlawful touching, (2) an attempt with unlawful force

to inflict bodily injury on another, tending but failing to accomplish it, and (3) putting

another in apprehension of harm. State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439

(2009). Since Cerutti unlawfully struck Parker, apprehension of fear did not rise to a

required element of the crime.

       We may agree that no testimony established the speed or vigor by which Cerutti

wielded the sword. Nevertheless, the law does not require such proof to convict one of

second degree assault based on use of a deadly weapon.

       When determining whether a weapon qualifies as a deadly weapon for purposes of

second degree assault, we consider the circumstances under which the defendant

employed the weapon. The test is not the extent of the wounds actually inflicted. State v.

Cobb, 22 Wn. App. 221, 223, 589 P.2d 297 (1978). Rather, the test is whether the

weapon was capable of inflicting life threatening injuries. State v. Cobb, 22 Wn. App. at

223. RCW 9A.04.110(6) does not contemplate an actual injury to establish a particular

weapon as deadly.

       Under the circumstances and viewing the facts in a light most favorable to the

State, a rational trier of fact could conclude that Carlo Cerutti used the sword under

                                               7
No. 34574-2-III
State v. Cerutti


circumstances or in a manner capable of producing death or substantial bodily harm.

Cerutti’s blade caused a laceration to McGlother Parker’s finger severe enough to require

sutures, an injury that could qualify as a temporary but substantial disfigurement. Cerutti

swung the blade in Parker’s direction at least three times following an intense verbal

dispute. A rational trier of fact could have concluded that a razor that sharp could have

caused death if thrusted into a vital artery. A stab to the chest or throat with such an

instrument would at the very least cause substantial injury. Accordingly, we conclude

that Cerutti used the sword as a deadly weapon for purposes of RCW 9A.36.021.

       Carlo Cerutti also argues that, even when viewed in a light most favorable to the

State, the trial testimony failed to establish that he intended to use the sword as a deadly

weapon. Nevertheless, we note that RCW 9A.36.021(1)(c) only requires that the

defendant intend to assault the victim, and, in the course of the assault, the defendant

used a weapon under circumstances that readily could have caused substantial bodily

injury. The statute does not necessitate that the defendant intended to use the weapon in

a deadly manner.

       Under the criminal code, “[a] person acts with intent or intentionally when . . .

acting with the objective or purpose to accomplish a result which constitutes a crime.”

RCW 9A.08.010(1)(a). Sufficient facts support a jury finding that Carlo Cerutti held the

requisite intent to touch McGlother Parker without permission, such that an assault

occurred. Although not necessary to uphold the verdict, the jury could have even

                                              8
No. 34574-2-III
State v. Cerutti


reasonably inferred further that Cerutti intended to use the sword as a deadly weapon.

Testimony supporting this conclusion included the deep seated antagonism between the

men, Cerutti’s spitting at Parker, Parker’s argument with Cerutti’s wife, Cerutti’s telling

Parker to wait while he grabbed the sword, and the eyewitness testimony that Cerutti

lunged at Parker.

       Three Washington decisions bolster our conclusion of sufficiency of evidence. In

State v. Brakes, 1 Wn. App. 987, 465 P.2d 683 (1970), John Brakes argued insufficiency

of evidence to convict him of second degree assault with a deadly weapon because a

bomb thrown at police officers exploded in midair rather than injuring any officer. This

court held that the State presented substantial evidence from which the jury could

determine that the firebomb qualified as an object likely to produce bodily harm. The

bomb functioned as a deadly weapon regardless of whether it struck the officer directly,

since the officer stood within a range of danger.

       In State v. Cobb, 22 Wn. App. 221 (1978), William Cobb employed a jackknife to

cut his victim in the forehead, in the chest over the sternum, and in the muscle structure

under the left arm. A treating physician characterized the injuries as stab wounds, all of

which required sutures. None of the wounds were in fact life threatening. Nevertheless,

we held that sufficient evidence permitted a jury to properly conclude that Cobb utilized

the knife under circumstances that rendered the knife a deadly weapon.



                                             9
No. 34574-2-III
State v. Cerutti


      In State v. Rush, 14 Wn.2d 138, 127 P.2d 411 (1942), the victim testified that

Theodore Rush, when within four feet from a deliveryman, threatened to cut the man’s

throat with a pocket knife if he refused to give Rush a loaf of bread. The Supreme Court

held that Rush used the knife as a deadly weapon.

                                    CONCLUSION

      We affirm Carlo Cerutti’s conviction for second degree assault by reason of use of

a deadly weapon.

      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.


                                            _________________________________
                                            Fearing, C.J.

WE CONCUR:



______________________________              _________________________________
Korsmo, J.                                  Siddoway, J.




                                           10
