State of Washington v. Carlo Morris Cerutti

FILED
FEBRUARY 1, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34574-2-III
Respondent, )
)
v. )
)
CARLO MORRIS CERUTTI, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, C.J. — A neighborhood garbage crisis led to Carlo Cerutti’s prosecution
for and conviction of second degree assault with a deadly weapon. On appeal, Cerutti
challenges the sufficiency of evidence to convict him of the crime. He claims that his use
of a sword to cut his neighbor’s hand did not constitute the exploit of a deadly weapon.
We disagree and affirm the conviction.
FACTS
This prosecution arises from the brandishing of a sword by Carlo Cerutti against
his neighbor, McGlother Parker. Because Cerutti asks that we review the sufficiency of
evidence, we purloin the facts from the trial testimony.
McGlother Parker and Carlo Cerutti resided in adjacent units of a duplex on
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Wabash Avenue in Spokane. Before the events leading to the prosecution, Parker and
Cerutti’s prospective wife, Joyce, suffered an inimical relationship while Joyce lived
alone in one of the residences. When Cerutti joined Joyce in the residence, the
aggression and enmity worsened.
On an unnumbered number of occasions, law enforcement intervened when
confrontations between McGlother Parker and the Cerutti couple escalated. Once Parker
struck Carlo Cerutti in the face purportedly in self-defense. On October 16, 2015, Parker
procured an anti-harassment order against Joyce and Carlo Cerutti. The tumultuous
relationship nonetheless ripened into criminal charges a month later.
On November 14, 2015, McGlother Parker dismayly discovered another’s waste in
his outdoors garbage receptacle. Parker moved the refuse onto the Ceruttis’ adjacent
garbage can. After he returned inside his half of the duplex, Parker spied Joyce Cerutti
grab the transferred trash from her container and fling the trash toward Parker’s home.
Parker then exited his apartment, assembled the undesired rubbish, and hurled it in
Joyce’s direction. The refuse did not strike Joyce.
A heated exchange banally ensued between McGlother Parker and Joyce Cerutti.
The Cerutti family entertained guests that day and the gaggle, including Carlo Cerutti,
paraded onto a patio and parted Parker and Joyce. The parties quieted and filed back
inside their respective sides of the duplex, but not before Carlo Cerutti spat in Parker’s
direction.
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Moments later, rubbish flew from an unknown hand toward McGlother Parker’s
apartment. The parties rushed outside and resumed the bellicosity. Parker and Joyce
Cerutti again shared pugnacious vocabularies until Carlo Cerutti separated the two.
Cerutti convinced Joyce to return inside. The testimony of Parker and Cerutti diverges
thereafter.
According to McGlother Parker, Carlo Cerutti invited Parker to remain still,
because Cerutti had “something” for Parker. Report of Proceedings (RP) at 58-59. A
compliant Parker accepted the invitation and waited on his front doorstep. Cerutti
entered his duplex and returned with a bladed instrument in hand. Parker described the
intimidating implement as “a sword of some sorts, like a warrior-type battle sword with
four blades on it.” RP at 60.
According to McGlother Parker, Cerutti swung the sword in Parker’s direction
three times, causing Parker to jump backwards. On at least one of the swings, Cerutti
employed the sword in a “chopping” motion. RP at 59. Parker instinctively reached for
the sword to stop the swinging of the weapon and thereby cut his left hand on a blade.
Parker noticed anger in Cerutti, and he worried about the extent to which Cerutti could
injure him. Parker, despite his hand injury, successfully disarmed Cerutti, returned to his
apartment, and called 911. Parker’s injury caused pain and required sutures.
In his trial testimony, Carlo Cerutti disagreed that he returned outside with a sword
in hand. Cerutti testified that McGlother Parker entered Cerutti’s residence. Cerutti
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grabbed the sword in an attempt to protect himself. Parker grabbed the blade while
Cerutti shoved Parker out the front door. Cerutti denied swinging the blade in Parker’s
direction. During trial testimony, Cerutti agreed that he grasped the sword because of its
intimidating nature, that the instrument could kill someone, and that the instrument
qualified as a deadly weapon.
Two independent witnesses observed the confrontation, occurring outside the
duplex, between Carlo Cerutti and McGlother Parker. Blake Johnson observed the events
from across the street. Johnson did not know Cerutti or Parker before November 14. He
was visiting a friend’s house to conduct an estate sale. Johnson saw and heard the
Ceruttis and their guests surround Parker, call him names, and pretend to punch Parker.
Parker turned his back to the small crowd. A man spat on Parker’s back. Johnson judged
Parker as keeping calm and attempting to avoid a confrontation. The Ceruttis and guests
threw garbage in Parker’s yard, and Joyce Cerutti hurled rocks at Parker’s door. Johnson
never saw Parker enter the Cerutti residence. No trial counsel asked Johnson if he saw
Cerutti brandish a sword.
A second percipient witness, Bernard Mallory, was visiting a friend on Wabash
Avenue. Mallory also had not met either Carlo Cerutti or McGlother Parker. As he
retrieved personal property from his car, Mallory glimpsed the altercation. He saw
Cerutti with a sword resting on his hip. Mallory then observed Cerutti lunge at Parker
and stab Parker in the hand. He never noticed Parker entering Cerutti’s home.
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PROCEDURE
The State of Washington charged Carlo Cerutti with second degree assault with a
deadly weapon. A jury found Cerutti guilty as charged.
LAW AND ANALYSIS
Carlo Cerutti’s sole challenge on appeal is to the sufficiency of evidence to
convict him of second degree assault with a deadly weapon. We therefore outline
familiar principles of law with respect to sufficiency of evidence in a criminal
prosecution. To determine whether sufficient evidence supports a conviction, we view
the evidence in the light most favorable to the prosecution and determine whether any
rational fact finder could have found the elements of the crime beyond a reasonable
doubt. State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). “Substantial
evidence” is evidence sufficient to persuade a fair-minded person of the truth of the
asserted premise. State v. Stenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). In
claiming insufficient evidence, Cerutti necessarily admits the truth of the State’s evidence
and all reasonable inferences that can be drawn from it. State v. Salinas, 119 Wn.2d 192,
201, 829 P.2d 1068 (1992). These inferences must be drawn in favor of the State and
interpreted most strongly against Carlo Cerutti. State v. Salinas, 119 Wn.2d at 201.
RCW 9A.36.021 covers the crime of second degree assault. An offender may
commit the crime by various acts of violence, one of which act is the use of a deadly
weapon. RCW 9A.36.021 declares:
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(1) A person is guilty of assault in the second degree if he or she,
under circumstances not amounting to assault in the first degree:
....
(c) Assaults another with a deadly weapon.
Carlo Cerutti’s jury convicted him under RCW 9A.36.021(1)(c). RCW 9A.04.110(6)
defines a “deadly weapon” as:
any . . . weapon, device, instrument, article, or substance . . . which,
under the circumstances in which it is used, attempted to be used, or
threatened to be used, is readily capable of causing death or substantial
bodily harm.
In turn, under RCW 9A.04.110(4)(b), “substantial bodily harm”
means bodily injury which involves a temporary but substantial
disfigurement, or which causes a temporary but substantial loss or
impairment of the function of any bodily part or organ, or which causes a
fracture of any bodily part.
On appeal, Carlo Cerutti argues that, even when viewed in a light most favorable
to the State and when we analyze the manner in which he employed the sword, the trial
testimony failed to establish that his sword functioned as a deadly weapon. Cerutti
emphasizes that McGlother Parker did not testify as to the strength or velocity with which
he swung the sword or that Parker feared harm from the swinging of the sword.
We disagree that no evidence showed that McGlother Parker feared from the
conduct of Carlo Cerutti. Parker testified that he instinctively reached for the weapon in
order to protect himself and because he knew not the extent to which Cerutti might
expend effort to harm him. Such defensive conduct connotes fear. From this testimony,
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a jury could reasonably find that Parker feared for his safety, if not his life.
Although evidence established fear, the State need not have proved fear. Because
the criminal code does not define “assault,” Washington courts employ three common
law definitions of “assault:” (1) an unlawful touching, (2) an attempt with unlawful force
to inflict bodily injury on another, tending but failing to accomplish it, and (3) putting
another in apprehension of harm. State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439(2009). Since Cerutti unlawfully struck Parker, apprehension of fear did not rise to a
required element of the crime.
We may agree that no testimony established the speed or vigor by which Cerutti
wielded the sword. Nevertheless, the law does not require such proof to convict one of
second degree assault based on use of a deadly weapon.
When determining whether a weapon qualifies as a deadly weapon for purposes of
second degree assault, we consider the circumstances under which the defendant
employed the weapon. The test is not the extent of the wounds actually inflicted. State v.
Cobb, 22 Wn. App. 221, 223, 589 P.2d 297 (1978). Rather, the test is whether the
weapon was capable of inflicting life threatening injuries. State v. Cobb, 22 Wn. App. at
223. RCW 9A.04.110(6) does not contemplate an actual injury to establish a particular
weapon as deadly.
Under the circumstances and viewing the facts in a light most favorable to the
State, a rational trier of fact could conclude that Carlo Cerutti used the sword under
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circumstances or in a manner capable of producing death or substantial bodily harm.
Cerutti’s blade caused a laceration to McGlother Parker’s finger severe enough to require
sutures, an injury that could qualify as a temporary but substantial disfigurement. Cerutti
swung the blade in Parker’s direction at least three times following an intense verbal
dispute. A rational trier of fact could have concluded that a razor that sharp could have
caused death if thrusted into a vital artery. A stab to the chest or throat with such an
instrument would at the very least cause substantial injury. Accordingly, we conclude
that Cerutti used the sword as a deadly weapon for purposes of RCW 9A.36.021.
Carlo Cerutti also argues that, even when viewed in a light most favorable to the
State, the trial testimony failed to establish that he intended to use the sword as a deadly
weapon. Nevertheless, we note that RCW 9A.36.021(1)(c) only requires that the
defendant intend to assault the victim, and, in the course of the assault, the defendant
used a weapon under circumstances that readily could have caused substantial bodily
injury. The statute does not necessitate that the defendant intended to use the weapon in
a deadly manner.
Under the criminal code, “[a] person acts with intent or intentionally when . . .
acting with the objective or purpose to accomplish a result which constitutes a crime.”
RCW 9A.08.010(1)(a). Sufficient facts support a jury finding that Carlo Cerutti held the
requisite intent to touch McGlother Parker without permission, such that an assault
occurred. Although not necessary to uphold the verdict, the jury could have even
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reasonably inferred further that Cerutti intended to use the sword as a deadly weapon.
Testimony supporting this conclusion included the deep seated antagonism between the
men, Cerutti’s spitting at Parker, Parker’s argument with Cerutti’s wife, Cerutti’s telling
Parker to wait while he grabbed the sword, and the eyewitness testimony that Cerutti
lunged at Parker.
Three Washington decisions bolster our conclusion of sufficiency of evidence. In
State v. Brakes, 1 Wn. App. 987, 465 P.2d 683 (1970), John Brakes argued insufficiency
of evidence to convict him of second degree assault with a deadly weapon because a
bomb thrown at police officers exploded in midair rather than injuring any officer. This
court held that the State presented substantial evidence from which the jury could
determine that the firebomb qualified as an object likely to produce bodily harm. The
bomb functioned as a deadly weapon regardless of whether it struck the officer directly,
since the officer stood within a range of danger.
In State v. Cobb, 22 Wn. App. 221 (1978), William Cobb employed a jackknife to
cut his victim in the forehead, in the chest over the sternum, and in the muscle structure
under the left arm. A treating physician characterized the injuries as stab wounds, all of
which required sutures. None of the wounds were in fact life threatening. Nevertheless,
we held that sufficient evidence permitted a jury to properly conclude that Cobb utilized
the knife under circumstances that rendered the knife a deadly weapon.
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In State v. Rush, 14 Wn.2d 138, 127 P.2d 411 (1942), the victim testified that
Theodore Rush, when within four feet from a deliveryman, threatened to cut the man's
throat with a pocket knife if he refused to give Rush a loaf of bread. The Supreme Court
held that Rush used the knife as a deadly weapon.
CONCLUSION
We affirm Carlo Cerutti's conviction for second degree assault by reason of use of
a deadly weapon.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, c~i
WE CONCUR:
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