SPOKANE - An appellate court upheld Robbie Joe Marcher's conviction for shooting an off-duty sheriff's deputy.

Marcher was convicted of assault in the second degree, unlawful hunting of big game in the second degree and failure to summon assistance after a two-week trial in 2009.

Earl Romig, an off-duty sheriff's deputy, went coyote hunting next to an orchard near Soap Lake in January 2008, according to court records. He wasn't aware a special deer hunting season was in effect at the orchard.

When he was walking in the orchard, Romig noticed tire marks in the snow indicating a vehicle hit a tree and needed to use a tire chain to be freed, according to court records.

"About 100 yards away, he saw a parked white Ford-type truck with a chain on one tire," according to court records. "Romig then saw a man move from the driver's side of the truck to the back and 'scope' him by looking at him through the scope of a hunting rifle."

The man looked like he was going to fire the rifle, so Romig turned, walking through some trees and over a fence into a nearby field, according to the opinion. After spending about 25 minutes calling for coyotes, none came, so Romig started back to his SUV.

"After about 100 yards, he realized he was walking near where the scoping took place, so (he) turned and started to go another direction," according to the opinion. "He was then shot in the back and fell to the ground."

Romig sat up, and using his rifle scope, saw a man walking away, according to court records. It appeared to be the same man who scoped him earlier in the day. Romig fired his rifle three times in quick succession and no one responded. When the injured man saw a truck driving down the road, he fired one shot over the cab of the truck.

"The driver, Donald Thill, investigated the shot and found the wounded deputy about 300 yards away," according to the opinion.

Thill called 9-1-1 and Romig was transported to a hospital where he was treated for his injuries, according to court records. Thill had seen a white GMC truck leaving the orchard earlier and knew it was Marcher's father's truck.

When police spoke with Marcher, he initially denied shooting a rifle. After further questioning, Marcher admitted to shooting at what he thought was a coyote, according to the opinion. He told police he didn't check to see whether he hit anything.

Marcher challenged whether the evidence was sufficient to support the assault and hunting convictions, arguing he wasn't connected to the shooting and prosecutors didn't present evidence he was hunting, according to the opinion.

"The reviewing court does not weigh evidence or sift through competing testimony," according to the opinion. "Instead, the question presented is whether there is sufficient evidence to support the determination that each element of the crime was proven beyond a reasonable doubt."

Marcher's attorney argued Romig's testimony and identification of him was inconsistent and forensic evidence didn't tie Marcher to the shooting, according to the opinion.

"However, inconstancies in testimony do not an evidentiary sufficiency challenge make," according to the opinion. "This court does not reweigh evidence and is not in a position to find persuasive that which a jury found unpersuasive."

The appellate court pointed out Romig and Thill said Marcher was at the scene and agreed where the shooting occurred, according to the opinion. While Marcher claimed he was shooting at a coyote, his statement confirms he was at the location at roughly the same time Romig was wounded.

"Any testimonial inconsistency or lack of supporting evidence were factors for the jury to weigh,"  according to the opinion. "The evidence was sufficient to support the determination that Mr. Marcher was the shooter."

Marcher challenged the unlawful hunting of big game conviction, stating he was not hunting, according to the opinion. He argued he was only at the scene to protect his father from cougars and assist the man if he killed a deer.

"He contends that case law requires that he actually aim his gun at a big game animal," according to the opinion.

The court denied the argument, stating the effort Marcher took to hunt deer was enough to constitute hunting.

"He twice was seen walking around the orchard with a gun - first when he 'scoped' Mr. Romig and later when he shot him," according to the opinion. "Even by his own admission that he shot at a coyote, Mr. Marcher admitted hunting. The question was whether he was engaged in big game hunting. The evidence permitted the jury to conclude that he was."

The court also denied challenges to how the jury instructions were presented.