IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. ERIKA ANNE SOERENSEN, Appellant. No. 73010-0-1

UNPUBLISHED OPINION
FILED: May 2, 2016 i r



### Schindler, J. — Ajuryconvicted Erika AnneSoerensen ofassault in the second degree with a deadly weapon in violation ofRCW 9A.36.021(1)(c). Soerensen argues the State did not prove beyond a reasonable doubt (1) she intentionally hitbicycle-rider Jacob Vanderplas with her car, (2) she intentionally created the fear ofbodily harm in 

### Vanderplas, or(3) her car was used as a deadly weapon. Because substantial evidence supports the conviction, we affirm but remand to correct a scrivener's errorin thejudgment and sentence. FACTS 

### Erika Anne Soerensen and Jacob Vanderplas lived inWest Seattle. At 

### approximately 8:00 a.m. onMonday, July 8, 2013, Soerensen wasdriving herblack Nissan Sentra from her residence inWest Seattle to herjob indowntown Seattle. 

### Soerensen was running late and afraid she would be "written up" for being late towork.No. 73010-0-1/2 To avoid the heavy traffic on her usual route northbound on Delridge Way Southwest, she turned onto a side street and headed northbound on 26th Avenue Southwest. 26th Avenue Southwest is a designated bicycle route with a posted speed limit of 20 m.p.h. Vanderplas was riding his bicycle on the way to work traveling northbound on 26th Avenue Southwest on the right side ofthe roadway. Vanderplas noticed a darkcolored Nissan quickly approaching him from behind. Atthe intersection of26th Avenue Southwest and Southwest Genesee Street, Vanderplas stopped, turned around to face the Nissan, and pointed to the 20 m.p.h. speed limit sign. After crossing Southwest Genesee Street, Vanderplas pulled to the side ofthe road to allow a southbound car to pass him and then continued northbound. When he reached the next intersection, Vanderplas looked back and saw the Nissan was "still 

### navigating how to get past the oncoming vehicle." Afterthe southbound car backed up to allow Soerensen to pass, Soerensen "took offat a very high, accelerated speed." As Vanderplas neared the intersection of26th Avenue Southwest and Southwest Andover Street, he heard the Nissan approach him from behind with the driver "laying 

### on the horn." While riding in a straight line on the rightside ofthe roadway, Vanderplas 

### turned around and yelled, "What the fuck are you doing?" When he stopped at the intersection of26th Avenue Southwest and Southwest Andover Street, the driver ofthe Nissan pulled up beside him and screamed at him. 

### Vanderplas could not understand what the driver was saying because the windows ofthe car were rolled up. Vanderplas turned right onto SouthwestAndover 

### Streetto ride in the designated bicycle lane. Vanderplas said the tires on the Nissan 

### squealed as the drivermade the right turn onto SouthwestAndover Street, drove upNo. 73010-0-1/3 behind him, and began to pass him on the left. Vanderplas said as the Nissan passed him, the driver suddenly moved "[vjery quickly" into the bicycle lane. Vanderplas said the front ofthe Nissan "was entirely in the bike lane

. . . blocking the entire bike lane." Vanderplas estimated he was traveling between 5 and 10 m.p.h. when the Nissan turned into the bicycle lane. Vanderplas tried to brake but "didn't have enough time." The Nissan hitthe left handlebar of his bicycle, and his left hand "took the brunt ofthe force ofthe strike." The impact knocked Vanderplas "onto the sidewalk." The Nissan drove away without stopping. Vanderplas memorized the Nissan's license plate
number. Seattle Police Department Detective Alan Cruise spoke to Soerensen a few days later. When Detective Cruise told Soerensen he was investigating a collision between a
car and a bicyclist on SouthwestAndover Streetthe previous Monday morning, 

### Soerensen "almost immediately said, No, Iwasn't involved in any accident with a 

### bicycle." Soerensen told Detective Cruise that "she wasn't there, she was working at the time." Nonetheless, Soerensen later acknowledged she was "present at the date, 

### time and location inquestion." Soerensen told Detective Cruise she had a 

### disagreement with a bicyclist the morning of July 8 and honked her horn at the bicyclist because he was "riding inthe middle ofthe road going 5 miles an hour." Soerensen told Detective Cruise she passed the bicyclist while driving to work. When Detective 

### Cruise asked her if itwas possible that the bicyclisttouched her car, Soerensen said, 

### "[N]o, there was absolutely no contact between her and the cyclist." Approximately two weeks later, Soerensen sent a written statement to Detective Cruise describing the incident in greater detail.No. 73010-0-1/4 The State charged Soerensen with assault in the second degree with a deadly weapon in violation of RCW 9A.36.021(1)(c). The information alleged, in pertinent part: ERIKA ANNE SOERENSEN in King County, Washington, on or about July 8, 2013, did intentionally assault Jacob T. Vanderplas with a deadly weapon, to-wit: a vehicle. The State called a number ofwitnesses during the three-dayjury trial including Vanderplas, Detective Cruise, and a number of eyewitnesses. Bicyclist Eric Rajski testified that while he was stopped on his bicycle at the intersection of Southwest Genesee Street and 26th Avenue Southwest, he saw 

### Vanderplas riding a bicycle northbound on 26th Avenue Southwestwith a Nissan "tailing 

### . . . very closely." Rajski testified he heard "very loud — crazy loud" music coming from the car and saw "allthe windows were rolled up." Rajski remembered the music "because it is a band that Iliked that she was listening to — New Order." Rajski 

### testified he followed Vanderplas and the Nissan northbound on 26th Avenue Southwest. 

### AfterVanderplas and the Nissan passed a car traveling southbound, the Nissan "took 

### off at a very high, accelerated speed, racing her engine." Rajski testified the driver of the Nissan "held her horn down and didn't let off of it, and itwasn't like a beep, beep or 

### a friendly toot, itwas — the horn was on for — nonstop . . . [t]he entire two blocks about 

### up to . . . Andover." Afterthe NissanhitVanderplas, Rajski followed the car and saw the driver was "a younger woman"with "dark hair that was about shoulder length." After Rajski memorized the license plate number, he returned to help Vanderplas. Rebecca Moxley was driving westbound on SouthwestAndover Street at the time ofthe incident and had "a direct view ofwhat was going on." Moxley testified she

was close to the intersection with 26th Avenue Southwest when she saw the NissanNo. 73010-0-1/5 

### turn in "a quick motion" into the bicycle lane and hitVanderplas. Moxley said the driver then "corrected her drive" and drove off. Moxley followed the Nissan and called 911. 

### Moxley testified she described what happened to the 911 operator and gave the operator a description of the driver of the Nissan and the license plate number. Brent Spencerwas driving on SouthwestAndover Streettoward the intersection with 26th Avenue Southwest when he saw Vanderplas turn right onto Southwest 

### Andover Street. Spencer saw the Nissan turn the corner "a second later" and watched in his driver's side mirror as the driver of the Nissan hit Vanderplas. 

### Q.

... At that point were you still able to see the car and the cycle? A. Iwas. Because Inoticed them, something out ofthe ordinary, 

### something — there was something unusual about it, Iwas, as I passed them, Icontinued to just watch him through my leftwindow mirror. 

### Q.

... So after they turned, through your rear side mirror, did you see anything else? 

### A. Yes, as Iwas just watching them, first Isaw the car turn into the 

### right lane, or turninto — ontoAndover Street, and then after that, the car turned into the biker and hit the biker, and then drove off. Q. Okay. 

### Could you describe — you are saying turned into the bike lane? 

### Canyou describehow thatturn

—how thatturn took place? A. Sure. 

### So the car just turned onto AndoverStreetfrom 26thAve. as 

### any carwould, and then once they were onAndover Street, they, 

### as they passed bythe biker, or the cyclist, theyhit him and knocked him over. Q. Okay. A. Itwas definite — itwas a definite two motions, basically. 

### Q. When you say twomotions, what were the two motionsthat you saw? A. Itwas not fluid. There was — itwas one turn onto the Andover 

### Street and then a separate turn to hit the biker.No. 73010-0-1/6 Detective Cruise testified he used the license plate number to identify Soerensen

as the owner ofthe black 2002 Nissan sedan. Detective Cruise described the interview with Soerensen. Detective Cruise testified the 2002 Nissan sedan weighed a little over 2,500 pounds. Soerensen testified she saw Vanderplas riding behind her and waved for him to 

### pass her because she "didn'twant... to get stuck in the roundabout together." Soerensen testified there was no possibility she was going faster than 20 m.p.h. Soerensen said she was confused when Vanderplas pointed to the speed limit sign 

### because she "didn'tunderstand why he was pointing at the speed limit sign when Iwas 

### going the speed limit." Soerensen denied listening to loud music and said she listens to National Public Radio in the morning. 

### According to Soerensen, after she and Vanderplas passed Southwest Genesee Street, Vanderplas was riding slowly and weaving back and forth across the street. Soerensen testified she honked the horn of her car because she thought he might be 

### drunk. Soerensen testified that while they waited at the SouthwestAndover Street 

### intersection, they "got into a verbal exchangewith each other." Soerensen testified she "saw a mouth and screaming Icould tell he said, What thefuck are you doing?" Soerensen testified she responded bysaying, "What are you doing? You are in front of


### meveering backside-to-side. What isyour problem? Are you ondrugs?" Soerensen testifiedshe told Vanderplas to "[hjave a nice day" before driving off. In response to whether she tried to scare Vanderplas with her car, Soerensen testified, "No. Ijust 

### wanted to getaway from him. Idon't know ifwhen weturned Iwastoo close? Idon't know what happened, butIjust wanted to get awayfrom the situation and then go toNo. 73010-0-1/7 work." Soerensen testified she would "never, ever, ever, ever want to physically hit somebody." 

### Thejuryfound Soerensen guilty as charged of second degree assault.1
ANALYSIS 

### Soerensen contends the State did not prove beyond a reasonable doubt she 

### committedassault in the second degree with a deadly weapon.2 The State has the burden of proving the elements of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 

### (1970); State v. Borrero, 147Wn.2d 353, 364, 58 P.3d 245 (2002). Sufficientevidence supports a conviction if, whenviewed in the light mostfavorable to the State, any rational trier offact could find the essential elements ofthe crime beyond a reasonable doubt. State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068(1992). 

### "A claim ofinsufficiency admits the truth of the State's evidence and all 

### inferences thatreasonably can bedrawn therefrom." Salinas, 119Wn.2d at201. We defer to the trier of fact on "issues ofconflicting testimony, credibility of witnesses, and 

### thepersuasiveness oftheevidence." Statev. Thomas, 150Wn.2d 821, 874-75, 83 P.3d 970 (2004). 

### Soerensen contends the State did not prove beyond a reasonable doubt she (1) 

### intentionally struckVanderplas with hercaror (2) intended toinjure orcreate afear of bodily harm inVanderplas. 

### Under RCW 9A.36.021(1)(c), a person isguilty of assault in the second degree 

### with adeadly weapon if"he orshe . . . [ajssaults anotherwith adeadly weapon." The 1The courtimposed anexceptional sentence downward of240 hours ofcommunity service. 2The Statefiled a crossappeal. However, the Stateabandoned its challenge in its brieftothis court.No. 73010-0-1/8
criminal code does not define "assault." State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). Three definitions of assault are recognized inWashington: (1) an unlawful 

### touching (actual battery); (2) an attempt with unlawful force to inflict bodily injury upon another, tending but failing to accomplish it(attempted battery); and (3) putting another in apprehension of harm. Elmi, 166Wn.2dat215. The court instructed thejury on the definition of "assault" as follows: An assault is an intentional touching or striking of another person that is harmful or offensive regardless ofwhether any physical injury is done to the person. A touching or striking is offensive ifthe touching or striking would offend an ordinary person who is not unduly sensitive. An assault is also an act done with intent to inflict bodily injury upon 

### another, tending butfailing to accomplish it and accompanied with the apparent present ability to inflictthe bodily injury if not prevented. An assault is also an act done with the intent to create in another 

### apprehension and fear ofbodily injury, and which in fact creates in another a reasonable apprehension and imminent fear ofbodily injury even though the actor did not actually intend to inflict bodily iniury.[3] 

### The State argued Soerensen committed a battery or intended to place 

### Vanderplas in fear ofinjury. To proveassault by actual battery, "the State need show 

### only the intention totouch orstrike, notthe intentto injure." State v. Baker, 136Wn. App. 878, 883-84, 151 P.3d 237 (2007) (citing State v. Hall, 104Wn. App. 56, 62, 14 P.3d 884 (2000)). 

### Viewing the evidence in the light mostfavorable to the State, a rationaljury could find Soerensen intentionally struck Vanderplas with her car. Soerensen was late for work and in a hurry. To avoidtraffic on Delridge Way Southwest, she took a detour onto an unfamiliar and narrow side street with a speed limit of 20 m.p.h. Soerensen 

### became angry whenVanderplas pointed at the speed limit signin front ofher. Afterthe

3 Emphasis added.

8No. 73010-0-1/9 oncoming car backed up to let her pass, Soerensen "floored it" to catch up to Vanderplas while continually holding down the horn of her car. Soerensen and Vanderplas yelled at one another at the intersection before Vanderplas turned on Southwest Andover Street. Soerensen followed Vanderplas with her tires squealing. After she nearly passed him, Soerensen turned her car sharply into the bicycle lane. Moxley and Spencertestified Soerensen deliberately turned into the bicycle lane. 

### Viewing the evidence inthe lightmost favorable to the State, a reasonablejury could find Soerensen committed a battery and intentionally struckVanderplas with her car. 

### Viewing the evidence in the light most favorable to the State, a rational jury could also conclude Soerensen had the intent to create a fear of bodily harm inVanderplas. 

### Afterpassing the southbound car, Soerensen "floored it" to catch up to Vanderplas and 

### continually honked her horn behindhim. While Soerensen denied continually honking the horn of her car, we defer to the juryin weighing conflicting evidence. Thomas, 150
Wn.2d at 874-75. 

### As Soerensen quickly turned onto Southwest Andover Street, Vanderplas heard the tires of her car squeal. As Soerensen began to pass Vanderplas, she deliberately turned her 2,500-pound vehicle into the bicycle lane, forcing Vanderplas to brake suddenly. 

### Soerensen also contends the State did not prove beyond a reasonable doubt she used her Nissan as a "deadly weapon." 

### RCW 9A.04.110(6) defines "deadly weapon" as follows: 

### [A]ny explosive or loaded orunloaded firearm, and shallinclude any other weapon, device, instrument, article, or substance, including a "vehicle" as defined in this section, which, under the circumstances in which it is used,No. 73010-0-1/10 attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.w RCW 9A.04.110(4)(b) defines "substantial bodily harm" as follows: [Bjodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment ofthe function ofany bodily part or organ, or which causes a fracture of any bodily part. 

### Whether a weapon is deadly under the circumstances in which it is used is a 

### question of fact decided bythejury. State v. Carlson, 65 Wn. App. 153, 159-60, 828 

### P.2d 30 (1992) (citing State v. Sorenson, 6 Wn. App. 269, 273, 492 P.2d 233 (1972)). "Circumstances" include " 'the intent and present ability ofthe user, the degree of force, 

### the part of the body to which itwas applied and the physicalinjuries inflicted.'" State v. Schilling, 77 Wn. App. 166, 171, 889 P.2d 948 (1995) (quoting Sorenson, 6 Wn. App. at 273). 

### Soerensen does not dispute a vehicle is readily capable of causing substantial 

### bodily injury in some circumstances. Soerensen contends the circumstances ofthis

case establish she did not use her vehicle as a deadly weapon. 

### We disagree. Witness Rajski testified Soerensen was "tailing" Vanderplas with her car, "racing herengine," and continuously honking the horn. Vanderplas and 

### witnesses Moxley and Spencertestified Soerensen suddenly turned into the bicycle lane and the Nissan deliberately hitVanderplas and knocked him onto the sidewalk. 

### Viewing theevidence in thelight mostfavorable to the State, Soerensen used her vehicle as a "deadly weapon."

4Emphasis added.

10No. 73010-0-1/11 The State concedes thejudgment and sentence incorrectly states Soerensen

was convicted of assault under both RCW 9A.36.021(1)(a) and (c). We accept the State's concession and remand to the trial court to correct the scrivener's error. We affirm Soerensen's conviction of assault in the second degree with a deadly weapon but remand to correct a scrivener's error inthejudgment and sentence. 

# VjLmx^.^, WE CONCUR:

11