State v. Mckague

• Decision Date: 06 October 2011
• Docket Number: No. 85657–5.,85657–5.
• Citation: 262 P.3d 1225,172 Wash.2d 802
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent,v.Jay Earl McKAGUE, Petitioner.

172 Wash.2d 802

262 P.3d 1225

STATE of Washington, Respondent,

v.Jay Earl McKAGUE, Petitioner.

No. 85657–5.

Supreme Court of Washington, En Banc.

Considered Sept. 27, 2011.Decided Oct. 6, 2011.

Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Petitioner.Carol L. La Verne, Heather Stone, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.PER CURIAM.

[172 Wash.2d 803] ¶ 1 Jay McKague appealed his conviction for second degree assault, and the Court of Appeals affirmed in a split decision. We affirm the Court of Appeals' holding that substantial evidence supported the conviction, but in doing so we disapprove of the definition of “substantial bodily harm” applied by the Court of Appeals majority.¹

¶ 2 McKague shoplifted a can of smoked oysters from Kee Ho Chang's convenience store. Chang followed McKague out of the store and confronted him in the parking lot. When McKague tried to leave, Chang grabbed his sweat shirt. McKague punched Chang in the head several times and pushed him to the ground, causing Chang's head to strike the pavement. While Chang was on the ground, McKague punched him several more times, and then left in a friend's car. Chang tried to get up, but he was dizzy, and unable to stand for a time. Officer George Samuelson arrived at the store and noted that the side of Chang's face was extremely puffy. Officer Samuelson described Chang as seeming out of sorts, appearing distracted and stunned. Detective Sam Costello interviewed Chang and noted injuries to Chang's face and the back of his head.

¶ 3 Chang reported a headache and severe neck and shoulder pain to his doctor. He was diagnosed with a concussion without loss of consciousness, a scalp contusion and lacerations, and head and neck pain. He also had lacerations on his arm. A computed tomography scan showed a possible fracture of Chang's facial bones. Chang's neck and shoulder pain remained severe for more than a week, and residual pain lasted another two months. Police photographs taken three days after the assault showed bruising around Chang's eye.

¶ 4 McKague was charged with first degree robbery, with third degree theft as an inferior offense, and second degree assault predicated on the infliction of substantial bodily injury. At McKague's request, the court also instructed the jury on third degree assault as an inferior offense of second degree assault. The jury convicted McKague of third degree theft and second degree assault.

¶ 5 The Court of Appeals affirmed the convictions in a split decision. Judge Armstrong dissented on the issue of the sufficiency of the evidence of “substantial bodily harm.” He specifically disagreed with the lead opinion's citation to a dictionary definition of the term “substantial” as including “something having substance or actual existence.” State v. McKague, 159 Wash.App. 489, 520–21, 246 P.3d 558 (2011) (Armstrong, J., dissenting in part and concurring in part). Judge Armstrong opined that under this definition, any cognizable injury would necessarily be “substantial.” He would have held that the term “substantial” requires the harm to be considerable and that the State's evidence was insufficient to meet that standard.

¶ 6 We agree with Judge Armstrong that the majority applied an erroneous definition of “substantial,” but we nonetheless affirm McKague's conviction because the evidence was sufficient to show that Chang's injuries were “substantial” under a proper definition.²

¶ 7 In a challenge to the sufficiency of the evidence the court views the evidence in the light most favorable to the State, deciding 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). Second degree assault, as charged here, is committed when the defendant intentionally assaults another and thereby recklessly causes “substantial bodily harm.” RCW 9A.36.021(1)(a). “Substantial bodily harm” means a bodily injury involving a temporary but substantial disfigurement, a temporary but substantial loss or impairment of the function of any body part or organ, or a fracture of any body part. RCW 9A.04.110(4)(b). “Substantial” is not defined in the statute.

¶ 8 As noted, in its lead opinion the Court of Appeals applied the dictionary definition of “ ‘substantial’ ” as “ ‘something having substance or actual existence,’ ‘something having good substance or actual value,’ ‘something of moment,’ and ‘an important or material matter, thing, or part.’ ” McKague, 159 Wash.App. at 503 n. 7, 246 P.3d 558 (quoting Webster's Third New International Dictionary 2280 (2002)). But the portion of the definition stating that “substantial” means “something having good substance or actual existence” would make practically any demonstrable impairment or disfigurement a “substantial” injury regardless of how minor. Thus, the definition would apparently render the term “substantial” meaningless, a result a court must avoid. See State v. Hirschfelder, 170 Wash.2d 536, 543, 242 P.3d 876 (2010). We hold instead that the term “substantial,” as used in RCW 9A.36.021(1)(a), signifies a degree of harm that is considerable and necessarily requires a showing greater than an injury merely having some existence. While we do not limit the meaning of “substantial” to any particular dictionary definition, we approve of the definition cited by the dissent below: “considerable in amount, value, or worth.” Webster's, supra, at 2280.

¶ 9 Applying the “considerable in amount, value, or worth” definition, we hold that the evidence here was sufficient to meet that standard. As discussed, McKague punched Chang in the head several times and pushed him to the ground, causing his head to strike the pavement. Chang's resulting facial bruising and swelling lasting several days, and the lacerations to his face, the back of his head, and his arm were severe enough to allow the jury to find that the injuries constituted substantial but temporary disfigurement. See State v. Hovig, 149 Wash.App. 1, 5, 13, 202 P.3d 318, review denied, 166 Wash.2d 1020, 217 P.3d 335 (2009) (red and violet teeth marks lasting up to two weeks constituted substantial bodily injury); State v. Ashcraft, 71 Wash.App. 444, 455, 859 P.2d 60 (1993) (bruises from being hit by shoe were temporary but substantial disfigurement). And Chang's concussion, which caused him such dizziness that he was unable to stand for a time, was sufficient to allow the jury to find that he had suffered a temporary but substantial impairment of a body part or an organ's function.³ We therefore affirm the Court of Appeals holding that the State's evidence was sufficient on the “substantial bodily harm” element of second degree assault.

¶ 10 Finally, on July 12, 2011, McKague filed pro se motions seeking to admit still photographs from a surveillance video of the assault into the appellate record and...