State Of Washington, Respondent V. Timothy J. Rohn, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46250-8-II
Respondent, UNPUBLISHED OPINION
v.
TIMOTHY J. ROHN,
Appellant.
BJORGEN, C.J. — A jury returned verdicts finding Timothy Rohn guilty of third degree
assault and fourth degree assault. Rohn appeals his fourth degree assault conviction, asserting
that the State failed to present sufficient evidence in support of the conviction. We affirm.
FACTS
On October 14, 2012, Fredrick Brown and Eugenia Wilson were working as psychiatric
security attendants at Western State Hospital (WSH), where Rohn was a patient. On that date,
Brown and Wilson were escorting a group of patients from church services back to their wards.
As the group entered a stairwell, Rohn pushed open the stairwell door and struck Brown on the
back with a pillowcase containing several batteries. Rohn continued to swing the pillowcase at
Brown as Brown attempted to avoid his swings.
Wilson came to Brown’s aid and attempted to push Rohn against a wall. Wilson was
then struck in the chest by Rohn’s backswing, while Rohn was attempting to hit Brown. Brown
ran from the stairwell and, when Rohn followed after him, WSH staff were able to restrain Rohn.
A few days after the incident, Rohn apologized to Wilson, stating, “[H]e was sorry that [Wilson]
was there when it happened.” Report of Proceedings (RP) (Mar. 31, 2014) at 110.
Filed
Washington State
Court of Appeals
Division Two
May 24, 2016

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On March 27, 2014, the State charged Rohn by second amended information with second
degree assault for his conduct against Brown and with fourth degree assault for his conduct
against Wilson. The matter proceeded to a jury trial. At trial, Brown and Wilson testified
consistently with the facts as stated above. Additionally, Dr. Dangtuong Nguyen testified that he
had examined Brown and saw some tenderness in the area where Brown reported being struck
but did not see any bruises, bleeding, or open wounds.
The trial court provided the jury with a transferred intent instruction, which stated, “If a
person acts with intent to assault another, but the act harms a third person, the actor is also
deemed to have acted with intent to assault the third person.” Clerk’s Papers (CP) at 41. The
trial court also instructed the jury on the lesser included offense of third degree assault for
Rohn’s alleged conduct against Brown. The jury left blank the verdict form for second degree
assault, but found Rohn guilty of the lesser degree offense of third degree assault. The jury also
found Rohn guilty of fourth degree assault. Rohn appeals his fourth degree assault conviction.
ANALYSIS
Rohn contends that the State failed to present sufficient evidence to convict him of fourth
degree assault against Wilson. We disagree.
Sufficient evidence exists to support a conviction if any rational trier of fact could find
the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the
light most favorable to the State. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). A
defendant claiming insufficiency of the evidence admits the truth of the State’s evidence and all
inferences that can reasonably be drawn from that evidence. State v. Salinas, 119 Wn.2d 192,
201, 829 P.2d 1068 (1992). When reviewing the sufficiency of the State’s evidence, we consider
circumstantial evidence and direct evidence as equally reliable. State v. Delmarter, 94 Wn.2d

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634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony,
witness credibility, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410,
415-16, 824 P.2d 533 (1992), abrogated on other grounds by In re Pers. Restraint of Cross, 180
Wn.2d 664, 327 P.3d 660 (2014).
To convict Rohn of fourth degree assault, the State had to prove beyond a reasonable doubt
that he assaulted Wilson. RCW 9A.36.041. RCW 9A.36.041 does not define what constitutes an
assault, but our case law has held that an assault may be committed in three ways:
(1) intending to inflict bodily injury on another, accompanied with the apparent
present ability to do so, (2) intentionally creating in another person reasonable
apprehension and fear of bodily injury, and (3) intentionally committing an
unlawful touching, regardless whether physical harm results.
State v. Davis, 60 Wn. App. 813, 821, 808 P.2d 167 (1991), aff’d¸119 Wn.2d 657 (1992). “[A]
touching may be unlawful because it was neither legally consented to nor otherwise privileged,
and was either harmful or offensive.” State v. Garcia, 20 Wn. App. 401, 403, 579 P.2d 1034
(1978). “A person acts with intent or intentionally when he or she acts with the objective or
purpose to accomplish a result which constitutes a crime.” RCW 9A.08.010(1)(a). Rohn asserts
that the State failed to present any evidence that he acted intentionally when striking Wilson,
because the evidence showed only that he accidentally struck her with his backswing while
trying to hit Brown. We disagree.
The jury was instructed that “[i]f a person acts with intent to assault another, but the act
harms a third person, the actor is also deemed to have acted with intent to assault the third
person.” CP at 41. There was ample evidence at trial that Rohn acted intentionally when
striking Brown with a pillowcase filled with batteries and, thus, such intent was transferred to
Rohn’s conduct in striking Wilson on her chest during his backswing.

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Rohn argues that his intent to strike Brown could not have transferred to his conduct
against Wilson, because the jury found him guilty of only the lesser degree offense of third
degree assault, which required a finding of criminal negligence. Former RCW 9A.36.031(1)(d)
(2011).1 However, the jury’s return of a guilty verdict on only the lesser degree offense of third
degree assault for Rohn’s conduct against Brown does not equate with a finding that the State
failed to prove Rohn acted intentionally with respect to such conduct. The jury was instructed
pursuant to RCW 9A.08.010(2)2 that criminal negligence is established if “a person acts
intentionally or knowingly or recklessly as to that result.” CP at 46. Here, the jury could have
determined from the evidence at trial that Rohn acted intentionally when striking Brown but
could not unanimously agree that Brown suffered “substantial bodily harm” as a result, a
required element to convict Rohn of second degree assault as charged here. CP at 16, 34;
RCW 9A.04.110(4)(b);3 RCW 9A.36.021(1)(a). Because the State presented sufficient evidence
that Rohn acted intentionally when striking Brown and that Wilson was unlawfully touched as a
result of such intentional striking, Rohn’s sufficiency argument fails. Accordingly, we affirm his
1 Former RCW 9A.36.031 provided in relevant part:
(1) A person is guilty of assault in the third degree if he or she, under circumstances
not amounting to assault in the first or second degree:
. . . .
(d) [w]ith criminal negligence, causes bodily harm to another person by means of
a weapon or other instrument or thing likely to produce bodily harm.
2 RCW 9A.08.010(2) provides in relevant part, “[w]hen a statute provides that criminal
negligence suffices to establish an element of an offense, such element also is established if a
person acts intentionally, knowingly, or recklessly.”
3 RCW 9A.04.110(4)(b) defines “[s]ubstantial bodily harm” as “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.” The jury was instructed accordingly.

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conviction of fourth degree assault.
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 in accordance with RCW
2.06.040, it is so ordered.
BJORGEN, C.J.
We concur:
WORSWICK, J.
LEE, J.