Young siblings sometimes scuffle, but they usually are not charged with a Washington crime as a result. A teenager recently challenged a guilty adjudication for fourth degree assault arising from an altercation with his younger sister.
According to the appeals court’s opinion, which relied primarily on the juvenile court’s unchallenged findings, the sixteen-year-old juvenile had recently had surgery and was weak and had lost weight. His eleven-year-old sister came upstairs to the bedroom where he was resting looking for the dogs to take them out before school. When she tried to get the juvenile’s dog, it nipped her and she struck it on the nose. The juvenile told her not to hit the dog.
She called the juvenile a name as she tried to get the other dog from under the bed. She said the juvenile gave her a “quick tap in the face with his foot.” She responded by throwing a bottle of lotion and a bottle of vitamins at him, hitting him with one of them.
The sister went downstairs and the juvenile followed. He then hit her on the side of her head with his open hand. The sister received a bloody nose in the ensuing fight. Although the juvenile was older, his younger sister outweighed him after his recent weight loss.
The two siblings did not have the same father. The sister’s father was visiting the home when the altercation occurred. He told her to tell the school counselor what happened. She did so when she got to school that morning. The counselor called in the school resource officer. The sister made a statement signed under penalty of perjury and photos were taken.
The juvenile was charged with assault in the fourth degree based on the “tap” to his sister’s face in the bedroom.
At the adjudicatory hearing, the sister testified she referred to the “tap” to her face as a kick when she gave her statement, but said it was not like kicking a ball and the juvenile had been too weak from his medical issues to kick hard.
The juvenile argued that the incident had been “a typical and common and de minimis interaction between siblings.”
The court found the juvenile guilty of fourth degree assault, however. The court stated that the “tap” was an “unwanted touching.” It pointed out the sister said that it had upset her, showing that there had been an unwanted touching. The court sentenced the juvenile to local sanctions of no confinement with 12 months’ community supervision.
The juvenile appealed. He argued there was insufficient evidence that the touch was harmful or offensive. He argued the court had found the tap was unwanted and not offensive.
The appeals court considered pattern criminal jury instruction 35.50, defining “offensive” as a touch that “would offend an ordinary person who is not unduly sensitive.”
The appeals court acknowledged the trial court had omitted a finding on an essential element, but considered whether there was sufficient evidence for a rational trier of fact to find the necessary elements. When asked why she threw the bottles at her brother, the sister testified she was mad about “[h]im kicking [her] in the face. She also testified that it made her “very upset.”
The juvenile did not argue that the sister was unduly sensitive. The juvenile court had found her to be “incredibly credible.” The appeals court concluded that her actions were evidence that the “tap” was offensive, and the appeals court found that reaction objectively reasonable. The appeals court concluded there was sufficient evidence.
For a case that is appealed, a juvenile court is required to enter written findings stating the ultimate facts as to each element of the crime and the evidence upon which it relied. JuCR 7.11(d). The juvenile argued the court had not entered any findings or conclusions that the “tap” was intentional or offensive and requested remand.
The state agreed to remand for a finding the assault was intentional, but argued the uncontroverted evidence showed the sister was offended and harmed by the assault.
The appeals court affirmed the guilty finding and remanded to the juvenile court with instructions to enter appropriate findings and conclusions within 60 days or the charges must be dismissed.
The juvenile in this case experienced serious consequences as a result of the altercation with his sister. If your child has been accused of a crime, you need an experienced juvenile defense attorney to protect their rights. Set up a consultation with Blair & Kim, PLLC, by calling our offices at (206) 622-6562.