State V. Simuel
94 Was. App 1021, 1999 WL 106909
Author: Shaun

Facts:   Simuel was asked to leave a club. Upon walking to the front door, he produced a box-cutting utility knife and took a swipe at a bouncer.  He was tackled and subdued until the police arrived.

Procedure:  Jury found D guilty of Second degree assault-Assault with a deadly weapon. Brought to appeals based on the assumption the state did not prove one of the alternative means for one of the counts of second degree murder

Issue:  Must the state prove that an actual assault took place in order for the jury to find the D guilty?

Holding:  No.

Rationale: “we are satisfied that the jury could not have relied on that alternative means of assault. We further conclude that given the testimony at trial, the remaining two alternative means (attempted battery and causing fear and apprehension) are well supported by substantial evidence. As such, there is no danger that the jury’s verdict rested on an unsupported alternative means.”