IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,

Respondent,

v.

ERICK LADAL SIMS,

Appellant.

No. 83376-6-I

DIVISION ONE

UNPUBLISHED OPINION

BIRK, J. — Erick Sims appeals a criminal conviction after a bench trial. Sims 

asserts the evidence supporting his conviction for assault is not constitutionally 

sufficient, and his conviction for assault is inconsistent with his acquittal of rape. 

Finding no error, we affirm.

I

The State charged Erick Sims with rape in the second degree and murder 

in the second degree of Devan Schmidt. Following a bench trial, the court 

acquitted Sims of rape and murder, but convicted him of the lesser included 

offence of second degree assault. Among other arguments, Sims challenges 

whether the evidence was sufficient to convict him of assault. 

Trial evidence showed that in the early hours of May 2, 2015, Schmidt 

invited Dominique Dixon and Kevin Turner to her home. Dixon and Turner asked 

Sims for a ride. Schmidt did not know Sims. The three arrived at approximately 3 

a.m. After some time, Schmidt and Sims left. When they returned, Schmidt’s hair 
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was wet, and she said they had jumped into Lake Washington. Dixon testified she 

did not see any injuries on Schmidt. At approximately 6:00 a.m., one of Schmidt’s 

roommates observed Schmidt to be uninjured. 

The guests departed shortly before 7:00 a.m. Schmidt texted Dixon at 6:53 

a.m., “Woman! I couldn’t get u alone but why were you trying to hook me up with 

your drug dealer? Lol trust me I have enough on my plate already.” Schmidt tried 

to call her boyfriend several times between 6:54 a.m. and 6:58 a.m. At 6:59 a.m., 

Sims texted Schmidt, “Hello.” At 7:00 a.m., Sims texted Schmidt posing a request 

Sims testified was for drugs but a police officer testified referred to things of a 

sexual nature. Schmidt texted Turner, “Your boy is here what’s the best way to 

get rid of him?” Turner responded, “Tell him ur going to sleep have a good night,” 

“And you have a bf and u don’t wanna fuck it up,” and, “Do u need us to come 

back.” At 7:18 a.m., Turner and Dixon spoke with Schmidt on the phone. During 

that conversation, Schmidt said, “[I]t’s okay. I’m a big girl. I can handle myself.” 

Sims’s cell phone records show he remained near Schmidt’s home from 

5:05 a.m. to at least 8:14 a.m. At 8:39 a.m., Sims’s phone connected to a cell 

tower approximately six blocks to the north of the one it connected to while at 

Schmidt’s home. Sims consistently admitted he returned after initially departing, 

but provided inconsistent accounts of his actions upon returning. At trial, Sims 

claimed that when he initially departed he drove two or three blocks, then returned 

to Schmidt’s house to ask her about her cocaine connection. Sims claimed he 

knocked on the door, waited a few minutes, tapped on the window of her room, 
No. 83376-6-I/3

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then returned to his truck to text and call Schmidt. Sims testified he waited in his 

car while he smoked a cigarette, and then got lost and drove in circles in Schmidt’s 

neighborhood, near her home, for 15-20 minutes. The trial court found Sims’s 

testimony that he got lost trying to leave the neighborhood was not credible. 

At approximately 10:50 a.m., a roommate found Schmidt deceased. Brian 

Mazrim, MD estimated Schmidt’s time of death at roughly 9:00 a.m., “give or take 

a couple hours.” Based on the lividity on Schmidt’s body and the stiffness of her 

jaw described by responding fire fighters, Schmidt had been dead for “at least half 

an hour, maybe an hour before the medics arrived.” 

Dr. Mazrim observed several injuries to Schmidt’s body: a one inch diameter 

bruise to the left temple area which occurred within a day or two of death, two small 

abrasions to the face, an acute bruise on the inner aspect of the lower lip, which 

“would be up against her lower teeth,” acute bruises over both hip bones caused 

by pressure strongly applied to those areas externally from a blunt object, a bruise 

over the pubic bone, acute bruises to both knees, acute bruises from blunt force 

injuries to the tops of both feet consistent with an individual prone on the floor, 

scrapes and bruises to the tops of the toes, a small cut on the right pinkie from 

within about an hour of death, and “Deep down in the neck at the top of what would 

be the Adam’s apple or the voice box there was an area of acute hemorrhage.” 

The last injury “can be seen when there is an external force applied to the neck. 

Typically a hand because . . . the fingers . . . reach in deep.” 
No. 83376-6-I/4

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The injuries to Schmidt’s face were caused by “something to the effect of a 

hand over the mouth and nose . . . [o]r perhaps the face pressed into the floor or 

some other material.” The bruising to Schmidt’s hips, knees, and the tops of both 

feet suggest they were sustained while lying face down on a hard surface. Dr. 

Mazrim deemed the cause of death undetermined after identifying as possible 

causes intoxication and asphyxia. 

Swabs were collected from Schmidt’s body and sent to the Washington 

State Patrol crime lab. Amylase, which is an enzyme usually associated with 

saliva, was found on swabs from Schmidt’s neck, right wrist, left wrist, and vaginal 

area. Deoxyribonucleic acid (DNA) profiles from the neck, right fingernails, and 

right wrist were consistent with the combined profile from Schmidt and Sims. 

When reviewing the sufficiency of the evidence, we ask whether, after 

viewing the evidence in the light most favorable to the State, any rational trier of 

fact could have found the defendant guilty beyond a reasonable doubt. State v. 

Green, 94 Wn.2d 216, 220, 616 P.2d 628 (1980). Relevant here, “[a] person is 

guilty of assault in the second degree if he or she, under circumstances not 

amounting to assault in the first degree . . . [i]ntentionally assaults another and 

thereby recklessly inflicts substantial bodily harm.” RCW 9A.36.021(1)(a).

Washington recognizes an unlawful touching as assault. State v. Elmi, 166 Wn.2d 

209, 215, 207 P.3d 439 (2009). “Whether sufficient evidence supports finding a 

defendant acted recklessly ‘depends on both what the defendant knew and how a 

reasonable person would have acted knowing these facts.’ ” State v. Melland, 9 
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Wn. App. 2d 786, 804, 452 P.3d 562 (2019) (internal quotation marks omitted) 

(quoting State v. Graham, 153 Wn.2d 400, 408, 103 P.3d 1238 (2005)). The trier 

of fact is “permitted to find actual subjective knowledge if there is sufficient 

information which would lead a reasonable person to believe that a fact exists.” 

State v. Johnson, 119 Wn.2d 167, 174, 829 P.2d 1082 (1992) (emphasis omitted).

The evidence allowed a rational trier of fact to conclude Sims was present 

in Schmidt’s home after others left, and that he had unlawful physical contact with 

Schmidt. This includes Sims’s admission that he returned, text messages from 

Schmidt’s phone, Sims’s cell phone records placing him in the vicinity of Schmidt’s 

home, and the presence of Sims’s DNA on Schmidt’s body. In addition, the last 

people to see Schmidt alive, other than Sims, did not observe any injuries on

Schmidt. 

The evidence also allowed a rational trier of fact to find Sims acted 

recklessly. Dr. Mazrim described the injuries to Schmidt’s face as consistent with 

a hand being held over her mouth and nose. Dr. Mazrim described the acute 

hemorrhaging in Schmidt’s neck as consistent with external force being applied to 

her neck. Dr. Mazrim described the constellation of bruises to Schmidt’s hips, 

knees, and feet as consistent with her being held to the ground with some force. 

A rational trier of fact could conclude that these actions will cause injury and are a 

gross deviation from conduct that a reasonable person would exercise in the same 

situation.
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A rational trier of fact could find the injuries described by Dr. Mazrim 

constitute substantial bodily harm. Bruising can be sufficient to establish 

substantial bodily harm. State v. Hovig, 149 Wn. App. 1, 13, 202 P.3d 318 (2009) 

(substantial bodily harm found due to injury from a bite when pain would have been 

experienced at the time of injury, and bruising would have lasted from 7 to 14 

days); State v. Ashcraft, 71 Wn. App 444, 455, 859 P.2d 60 (1993) (substantial 

disfigurement found when bruise marks were consistent with being hit with a shoe); 

State v. McKague, 172 Wn.2d 802, 806, 262 P.3d 1225 (2011) (substantial bodily 

harm when assault resulted in facial bruising and swelling lasting several days with 

lacerations to face, back of head, and arm). Schmidt’s injuries included bruises 

and contusions consistent with Schmidt having been held down. There was 

sufficient evidence of second degree assault.

II

Sims argues the court reached inconsistent conclusions by acquitting him 

of rape but convicting him of assault. Generally, Sims argues the court’s 

conclusions are inconsistent because, he says, the same circumstances leading 

to reasonable doubt about rape logically also lead to reasonable doubt about 

assault. We disagree.1

 

1 We do not understand Sims to assert that there is an inconsistency 

between the court’s acquittal of murder and conviction for assault. Such a claim 

could not stand. The court acquitted of murder because it found reasonable doubt 

existed as to whether Schmidt’s injuries caused her death. This does nothing to 

insulate anyone from criminal liability for causing Schmidt’s injuries.
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Sims argues the court recognized an alternate basis for explaining certain 

DNA results when finding reasonable doubt as to rape, but then neglected to 

acknowledge the same doubt about assault. Sims’s DNA was found on Schmidt’s 

body coinciding in certain locations with amylase, an enzyme associated with 

saliva. The court explained, “The State asks the Court to conclude that the 

presence of Am[y]lase on portions of Ms. Schmidt’s body where Mr. Sims’ DNA 

was also found is evidence that the DNA was contained in Mr. Sims’ saliva.” But 

the court continued, “This is not the only reasonable inference from this evidence. 

The uncontroverted testimony presented at trial, from several experts, was that 

Am[y]lase is an enzyme found in the human digestive system, including in saliva.” 

There was evidence that Schmidt had vomited, which could explain the presence 

of amylase. Likewise, the court noted, “if Ms. Schmidt and Mr. Sims shared 

cocaine [by taking ‘bumps’ off each others’ hands], especially once he returned to 

her house, this would provide an alternate explanation for Am[y]lase on her hands 

and wrist.” But the court went no further than to say the evidence was inconclusive 

about whether Sims’s saliva was the source of the amylase found on Schmidt’s 

body, which tended to undermine the State’s theory of rape. Contrary to Sims’s 

implication, doubt about whether Sims’s saliva was the source of these particular 

DNA findings does not mandate a finding of reasonable doubt that Sims could have 

assaulted Schmidt.

Sims argues the court found the absence of certain injuries supportive of 

reasonable doubt about rape, and he says this compels a like conclusion about 
No. 83376-6-I/8

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assault. This discussion begins with DNA results that, unlike those discussed 

above, were not inconclusive. Sims’s DNA was “under Ms. Schmidt’s fingernails 

and on her wrist,” as well as “on Ms. Schmidt’s neck.” The court did not view these 

findings as proving assault by themselves, but found they were “consistent” with 

Sims holding Schmidt down, restraining her by the neck, and Schmidt fighting 

defensively. The court further relied on Dr. Mazrim’s testimony that established 

“Ms. Schmidt’s injuries were consistent with the perpetrator holding Ms. Schmidt 

face-down on the floor with enough strongly applied force to cause bruising along 

the surfaces of her body that contacted the floor.” But the court doubted that Sims 

inflicted these injuries while committing a sexual assault, stating that if he had done 

so he may have inflicted greater injury to other parts of Schmidt’s body: “Ms. 

Schmidt had no discernible injuries to the back side of her body. If a perpetrator 

was holding her down while thrusting or attempting to thrust into her, one might 

expect to see abrasions or other injuries to her back, buttocks or legs. Again, while 

the absence of this evidence is not dispositive, it is relevant.” 

There is no inconsistency. The court viewed the evidence as indicating 

Sims forcibly restrained Schmidt against the floor. That there were potentially 

innocent explanations of Sims’s DNA being found on Schmidt’s neck and wrist 

does not mandate doubt that he forcibly restrained her. The court did not point to 

any DNA findings as conclusive, but described them only as “consistent” with an 

assault evidenced independently by other circumstances. The DNA findings were

probative, because they did not rule out an assault causing injuries like those that 
No. 83376-6-I/9

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were found, and because they could reasonably be caused by such an assault. 

Similarly, the court’s view that Sims might have caused additional trauma if he had 

inflicted Schmidt’s injuries during a sexual assault is not inconsistent with a 

conclusion he caused those injuries independent of a sexual assault. And, as 

described above, there was sufficient evidence supporting the conclusion that 

Sims caused Schmidt’s injuries. 

Because the court’s conclusions are not inconsistent, it is not necessary to 

analyze the level of scrutiny Washington would apply to inconsistent conclusions 

following a bench trial in a criminal case.

Affirmed.

WE CONCUR: