STATE v. McCOY, 132 Wn. App. 1029 (2006)

[EDITORS' NOTE: This case is unpublished as indicated by the issuing court.]

Richard Eugene McCoy appeals his convictions for attempted second degree assault and felony harassment, both committed while armed with a deadly weapon. He argues that (1) the evidence is insufficient to support the convictions, and (2) the felony harassment conviction is invalid because the trial court failed to make a finding on one element of the crime. The State concedes that remand is necessary for entry of this missing finding. We affirm the assault conviction and remand the harassment conviction for the trial court to determine whether to enter the required finding. These convictions stem from a series of incidents that occurred on March 31, 2004. The undisputed facts are that at about 10:30 p.m., McCoy took a 12-pack of beer from a Longview Safeway Store without paying for it. The night supervisor, Jack Hammer, chased him through the parking lot, and the two men scuffled. McCoy hit Hammer on the shoulder, but Hammer was able to subdue McCoy, and he told McCoy to leave.

Another employee, Steven Turner, followed McCoy to the street. McCoy turned around and swung at Turner, scratching him under his eye. Turner wrestled McCoy to the ground and hit him `a few times.' When McCoy said he had had enough, Turner let him up and told him not to return. As he walked away, McCoy shouted, `I'm going to kill you, I'm going to come back, I'm going to stab you, I'm going to slice you up.'

About 15 minutes later, McCoy returned. On his way, he had stopped at a gas station, called 911, and told the operator that a Safeway clerk had assaulted him and he was going to go back to the store to kill him. When McCoy arrived at Safeway, Longview Police Officer Matt Massengale was waiting and went outside to talk to McCoy. Turner followed to identify McCoy. At that point, McCoy said, `Yeah, I'm going to kill him. I'm going to kill him. That's the one I'm going to cut up.' When McCoy moved his hand behind his back, Massengale became concerned that he was reaching for a weapon, took McCoy down, handcuffed him, and searched him. During the search, Massengale found a large knife in McCoy's right front pants pocket.

The State charged McCoy with third degree assault, fourth degree assault, attempted second degree assault while armed with a deadly weapon, felony harassment, felony harassment while armed with a deadly weapon, and third degree theft. McCoy was convicted following a bench trial. The attempted second degree assault and felony harassment while armed with a deadly weapon counted as his third strike, and the trial court imposed a life sentence without possibility of parole.

McCoy appeals, challenging only the two convictions for assault and harassment while armed with a deadly weapon. McCoy first argues that the evidence is insufficient to support his attempted second degree assault conviction because this crime involves only acts of preparation, not a substantial step in the commission of the crime as contemplated by RCW9A.28.020(1). We disagree. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Joy,121 Wn.2d 333,338,851 P.2d 654(1993); State v. Green,94 Wn.2d 216,221,616 P.2d 628(1980). A claim of insufficiency admits the truth of the State's evidence and requires that all reasonable inferences therefrom be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas,119 Wn.2d 192,201,829 P.2d 1068(1992). Circumstantial evidence is accorded equal weight with direct evidence. State v. Delmarter,94 Wn.2d 634,638,618 P.2d 99(1980). `Any slight act done in furtherance of a crime constitutes an attempt if it clearly shows the design of the individual to commit the crime.' State v. Price,103 Wn. App. 845,852,14 P.3d 841(2000), review denied,143 Wn.2d 1014(2001). In other words, for an attempted crime, RCW9A.28.020(1) requires the State to prove only that the defendant took a `substantial step' toward intentional commission of the charged crime.

A substantial step is an act strongly corroborative of the actor's criminal purpose, such as lying in wait, searching for or following the intended victim of the crime, enticing or seeking to entice the intended victim to the planned site of the crime, reconnoitering the planned site of the crime, unlawfully entering the place where the actor intends to commit the crime, and possessing materials to be used in the crime.

State v. Newbern,95 Wn. App. 277,287,975 P.2d 1041, review denied,138 Wn.2d 1018(1999) (emphases added).

`A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: . . . Assaults another with a deadly weapon.' RCW9A.36.021(1)(c). A deadly weapon is defined as `any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance . . . which, under the circumstances in which it is used . . . is readily capable of causing death or substantial bodily harm.' RCW9A.04.110(6). `Any knife having a blade longer than three inches,' is a deadly weapon. RCW 9.94A.602.

McCoy took at least two substantial steps here, demonstrating his criminal purpose to commit second degree assault. After McCoy told Turner he was going to come back, stab him, and slice him up, McCoy returned to Safeway 15 minutes later armed with a large knife and again told Turner he was going to cut him up and kill him. These acts, both individually and together, were `substantial steps' under Newbern: `searching for or following the intended victim' and `possessing materials to be used in the crime,' both of which were `strongly corroborative of [McCoy's] criminal purpose' and intent to carry out his threat. Newbern,95 Wn. App. at 287.

The State having established at least one requisite substantial step, we hold that the evidence was sufficient to support McCoy's conviction for attempted second degree assault. McCoy also argues the evidence was insufficient to support his conviction for felony harassment while armed with a deadly weapon. Again, we disagree.

In order to establish the charged crime, the State had to prove that McCoy threatened to kill Turner, either immediately, or in the future, and, by words or conduct, placed Turner in reasonable fear that he would carry out the threat. RCW9A.46.020(1). Noting that a police officer was present when he returned to Safeway and threatened Turner a second time, McCoy contends the evidence is insufficient to show that Turner reasonably feared McCoy would carry out his threat. This argument is not persuasive.

The statute does not require that the harm feared be immediate. State v. Alvarez,74 Wn. App. 250,262,872 P.2d 1123(1994), affirmed,128 Wn.2d 1(1995). Turner testified that he transferred to another store because he was afraid McCoy would come back to harm him. Given McCoy's repeated threats and his return to the store with a knife, a trier of fact could find that Turner both feared that McCoy would carry out his threat and that this fear was reasonable. With regard to the charge of felony harassment while armed with a deadly weapon, McCoy argues the trial court failed to make a finding regarding Turner's fear. The State concedes this deficiency. The trial court must make findings as to every element of the crime charged. Alvarez,74 Wn. App. at 261.

Accordingly, we remand to give the trial court an opportunity to decide whether to enter a finding that Turner reasonably feared McCoy would carry out his threat. In all other respects, we affirm McCoy's convictions.¹

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW2.06.040, it is so ordered.

BRIDGEWATER, P.J. and ARMSTRONG, J., concur.