State v. Marohl, No. 37566-4-II.

CourtCourt of Appeals of Washington
Writing for the CourtBridgewater
Citation213 P.3d 49,151 Wn. App. 469
PartiesSTATE of Washington, Appellant, v. James Michael MAROHL, Respondent.
Docket NumberNo. 37566-4-II.
Decision Date04 August 2009
213 P.3d 49
151 Wn. App. 469
STATE of Washington, Appellant,
v.
James Michael MAROHL, Respondent.
No. 37566-4-II.
Court of Appeals of Washington, Division 2.
August 4, 2009.

[213 P.3d 50]

Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Appellant.

Edward P. Lombardo, Mason County Prosecuting Attorney's Office, Shelton, WA, for Respondent.

BRIDGEWATER, J.


¶ 1 James Michael Marohl appeals his Mason County Superior Court conviction for third degree assault. We hold that sufficient evidence supported that Marohl assaulted Joseph Rex Peterson and that Marohl used the floor as an instrument to commit the assault. We affirm.

FACTS

¶ 2 On June 27, 2007, Joseph Rex Peterson went to Little Creek Casino in Shelton, Washington, where he proceeded to drink with several friends and eventually became intoxicated. Peterson left his table and approached the bar to get a glass of water. One of Peterson's friends walked behind him and either tapped him on the back or pulled on his belt. Peterson turned around and, in the process of doing so, knocked over a chair before walking to the opposite end of the bar to talk to the friend that had attempted to gain his attention.

¶ 3 When Peterson walked back down to the other end of the bar, Sean McFadden stopped Peterson and told him to be more careful because Peterson had almost hit McFadden's wife when he knocked the chair over. Peterson placed his arm around McFadden and apologized. McFadden attempted to brush Peterson's arm away several times.

¶ 4 Marohl got up from McFadden's table and stepped between Peterson and McFadden. Peterson does not recall what happened next. Peterson suffered scrapes and bruises to the side of his face and eye and his prosthetic arm was broken off at the elbow joint.

¶ 5 The casino's security video recorded the incident. Tribal officers detained Marohl until Mason County deputies arrived and, after watching the video, arrested Marohl.

¶ 6 The State charged Marohl with second degree assault or in the alternative, third degree assault. At Marohl's jury trial, multiple witnesses testified regarding both their personal recollections and what they observed on the video. There was much conflicting testimony at trial.

¶ 7 Peterson's employer, Jesse Kollman, testified that after Marohl stepped between McFaden and Peterson, Marohl placed his arm around Peterson's throat and that Peterson was waiving his arms in the air in an attempt to get away from Marohl. Marohl then "drove [Peterson] into the ground." 1 RP at 78. Kollman further testified that when Peterson lost consciousness, "[Marohl] rode him into the floor." 1 RP at 79. Marohl is a mixed martial arts fighter and much of the expert testimony presented by both sides involved evaluating the chokehold that Marohl placed on Peterson and whether he used it to choke him unconscious or restrain him.

¶ 8 Neither party objected to the jury instructions. The jury returned verdicts of not guilty for second degree assault and guilty for third degree assault. The trial court sentenced Marohl within the standard range.

ANALYSIS
I. Sufficiency of the Evidence

¶ 9 Marohl contends that insufficient evidence supported that he caused bodily harm to Peterson by means of a weapon or other instrument or thing. We disagree.

¶ 10 In assessing the sufficiency of the evidence, we view the evidence in the light most favorable to the State and decide whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Mines, 163 Wash.2d 387, 391, 179 P.3d 835 (2008). Marohl's sufficiency challenge admits the truth of the State's evidence. Mines, 163 Wash.2d at 391, 179 P.3d 835. We do not review credibility determinations on appeal, and we leave issues regarding conflicting witness testimony and the persuasiveness of the evidence to the trier of fact. State v. Thomas, 150 Wash.2d 821, 874-75, 83 P.3d 970 (2004).

¶ 11 The State charged Marohl as follows:

213 P.3d 51

[Marohl] did commit ASSAULT IN THE THIRD DEGREE, a Class C Felony, in that said defendant, with criminal negligence, did cause bodily harm to another person, to wit: Joseph Peterson, by means of a weapon or other instrument or thing likely to produce bodily harm, contrary to RCW 9A.36.03 1(1)(d).

CP at 55. RCW 9A.36.031(1)(d) provides:

¶ 12 (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) With criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.

RCW 9A.36.031(1)(d).1

¶ 13 The to-convict jury instruction required the State to prove beyond a reasonable doubt:

(1) That on or about the 27th day of June, 2007, the defendant caused bodily harm to Joseph Peterson;

(2) That the physical injury was caused by a weapon or other instrument or thing likely to produce bodily harm;

(3) That the defendant acted with criminal negligence; and

(4) That the acts occurred in the State of Washington.

CP at 48.

¶ 14 During closing argument, the State argued to the jury that if the jury was unable to find Marohl guilty of second degree assault, it could certainly do so for third degree assault.

With regard to the assault in the third degree, it's much shorter and sweeter.... It is with criminal negligence by means of an instrument or thing likely to produce bodily harm, producing bodily harm....

The instrument or thing here, obviously, is a combination of the arm lock, the choke lock, and taking him into the ground and slamming him into the floor. There's no requirement that — it's a broad thing. Instrument or thing. That's all in your — within your providence to decide those are the instruments or things. There isn't a limited number of things in the law by which an assault third can be committed and no other. It's a very broad definition. Any instrument or thing. So, whether it was kick him with a boot, which isn't here, or any other matter you can think of, you simply take the facts that you have and say, what instrument or thing did he use with criminal negligence to inflict this harm.

4 RP at 448-49.

¶ 15 Marohl asserts that contrary to the State's assertions during closing argument, the combination of the arm lock and choke lock do not constitute a "weapon or other instrument or thing" under RCW 9A.36.031(1)(d). Br. of Appellant at 7-8. Marohl cites State v. Cohen, 143 Wash. 464, 474-75, 255 P. 910 (1927), for the proposition that an assault with a bare hand or fist would not satisfy a statute requiring a weapon or instrument likely to produce bodily harm. Br. of Appellant at 8-9. Instead, the Cohen court noted that assault with a bare hand would satisfy a statute not requiring a weapon. Cohen, 143 Wash. at 474-75, 255 P. 910.

¶ 16 Marohl further argues that the legislature's addition of the term "`thing'" does not allow consideration of a bare hand or arm as a "`weapon or other instrument or...

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12 practice notes
  • State v. Sundberg, 40261-1-II
    • United States
    • Court of Appeals of Washington
    • October 18, 2011
    ...she suffered only minor injuries. Appellant's Br. at 9. Both Sundberg and the State rely on this court's decision in State v. Marohl, 151 Wn.App. 469, 213 P.3d 49 (2009), rev'd, 170 Wn.2d 691, 246 P.3d 177 (2010), in which this court held that a casino floor was an instrument or thing likel......
  • State v. Sundberg, No. 40261-1-II
    • United States
    • Court of Appeals of Washington
    • October 18, 2011
    ...she suffered only minor injuries.Appellant's Br. at 9. Both Sundberg and the State rely on this court's decision in State v. Marohl, 151 Wn. App. 469, 213 P.3d 49 (2009), rev'd, 170 Wn.2d 691, 246 P.3d 177 (2010), in which this court held that a casino floor was an instrument or thing likel......
  • State v. Jasionowicz, No. 66914-1-I
    • United States
    • Court of Appeals of Washington
    • September 10, 2012
    ...of the case, a trial court is not required to instruct a jury in a more detailed fashion absent a request to do so. State v. Marohl, 151 Wn. App. 469, 477, 213 P.3d 49 (2009), rev'd on other grounds, 170 Wn.2d 691, 246 P.3d 177 (2010). In fact, it would arguably be error for the court to fu......
  • State v. Jasionowicz, 66914-1-I
    • United States
    • Court of Appeals of Washington
    • September 10, 2012
    ...of the case, a trial court is not required to instruct a jury in a more detailed fashion absent a request to do so. State v. Marohl, 151 Wn.App. 469, 477, 213 P.3d 49 (2009), rev'd on other grounds, 170 Wn.2d 691, 246 P.3d 177 (2010). In fact, it would arguably be error for the court to fur......
  • Request a trial to view additional results
12 cases
  • State v. Sundberg, 40261-1-II
    • United States
    • Court of Appeals of Washington
    • October 18, 2011
    ...she suffered only minor injuries. Appellant's Br. at 9. Both Sundberg and the State rely on this court's decision in State v. Marohl, 151 Wn.App. 469, 213 P.3d 49 (2009), rev'd, 170 Wn.2d 691, 246 P.3d 177 (2010), in which this court held that a casino floor was an instrument or thing likel......
  • State v. Sundberg, No. 40261-1-II
    • United States
    • Court of Appeals of Washington
    • October 18, 2011
    ...she suffered only minor injuries.Appellant's Br. at 9. Both Sundberg and the State rely on this court's decision in State v. Marohl, 151 Wn. App. 469, 213 P.3d 49 (2009), rev'd, 170 Wn.2d 691, 246 P.3d 177 (2010), in which this court held that a casino floor was an instrument or thing likel......
  • State v. Jasionowicz, No. 66914-1-I
    • United States
    • Court of Appeals of Washington
    • September 10, 2012
    ...of the case, a trial court is not required to instruct a jury in a more detailed fashion absent a request to do so. State v. Marohl, 151 Wn. App. 469, 477, 213 P.3d 49 (2009), rev'd on other grounds, 170 Wn.2d 691, 246 P.3d 177 (2010). In fact, it would arguably be error for the court to fu......
  • State v. Jasionowicz, 66914-1-I
    • United States
    • Court of Appeals of Washington
    • September 10, 2012
    ...of the case, a trial court is not required to instruct a jury in a more detailed fashion absent a request to do so. State v. Marohl, 151 Wn.App. 469, 477, 213 P.3d 49 (2009), rev'd on other grounds, 170 Wn.2d 691, 246 P.3d 177 (2010). In fact, it would arguably be error for the court to fur......
  • Request a trial to view additional results

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