Opinion
No. 36326-7-II.
July 2, 2008.
Appeal from a judgment of the Superior Court for Clallam County, No. 05-1-00013-8, George L. Wood, J., entered May 4, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Bridgewater, JJ.
Lora Haselman appeals her convictions for third degree assault and obstructing a law enforcement officer. She argues that (1) the knowledge jury instruction was erroneous and her attorney was ineffective for failing to object to it, (2) the common law definition of assault violates the separation of powers doctrine, and (3) her third degree assault conviction required proof that the assault was not committed under circumstances amounting to first or second degree assault. Washington courts have resolved the second and third arguments contrary to Haselman's position. And, because uncontroverted evidence supports the disputed elements beyond a reasonable doubt, the knowledge instruction does not warrant reversal. We affirm.
FACTS
Haselman was a passenger in a car driven by her boyfriend, Ben Rushbrook. As Washington State Patrol Trooper Jason Fallon and Clallam County Sheriff's Deputy John Keegan were arresting Rushbrook for driving under the influence, Haselman argued with the deputies, refused to follow their directions, and resisted their attempts to handcuff her for officer safety. The deputies eventually restrained Haselman on the ground. During the altercation, Haselman's lip began to bleed. Keegan arrested Haselman for obstruction and was attempting to put her into his marked patrol car when she kicked him and spat blood and saliva onto his face.
The State charged Haselman with third degree assault, contrary to RCW 9A.36.031(1)(g) (count I) and obstructing a law enforcement officer, contrary to RCW 9A.76.020(1) (count II). In 2005, a jury found Haselman guilty of obstruction but was unable to reach a verdict on the assault charge. The State retried her on the assault charge in 2007, and the jury returned a guilty verdict. The sentencing court sentenced Haselman to 60 days of total confinement on the assault conviction, 30 days of which were converted to community service, and a 365-day suspended sentence on the obstruction conviction. Haselman appeals.
ANALYSIS
Knowledge Jury Instructions
Haselman first asserts that we should reverse her assault and obstruction convictions because the jury instructions incorrectly defined knowledge. She argues that (1) the jury instructions violated her right to due process and (2) her counsel was ineffective for failing to challenge the instructions. We disagree.
A Haselman's Jury Instructions
The jury instructions relevant to this appeal relate to proof that Haselman knew her victim was a law enforcement officer performing official duties. The "to-convict" instruction for third degree assault required the State to prove that Haselman "knew at the time of the assault that Deputy John Keegan was a law enforcement officer or other employee of a law enforcement agency who was performing his official duties." Clerk's Papers (CP) at 31. The third degree assault statute does not require that the defendant know the victim's law enforcement officer status. Nevertheless, because the parties did not object to this instruction, the "law of the case" doctrine required that the State prove that Haselman knew Keegan was a law enforcement officer performing his official duties when she kicked and spat blood on him. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998).
The statute reads:
A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree: . . . .
. . . .
(g) Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault.
RCW 9A.36.031(1). Our Supreme Court held that knowledge of the victim's status is not an implied element in this subsection. State v. Brown, 140 Wn.2d 456, 467, 998 P.2d 321 (2000).
Similarly, under the court's jury instructions in this case, the "to-convict" instruction for obstructing a law enforcement officer required the State to prove:
(1) That on or about the 8th day of January, 2005, the Defendant willfully hindered, delayed, or obstructed a law enforcement officer in the discharge of the law enforcement officer's official powers or duties;
(2) That the Defendant knew that the law enforcement officer was discharging official duties at the time; [and]
(3) That the acts occurred in the State of Washington, County of Clallam.
CP at 49 (emphasis added); see 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 120.02, at 209 (2005 Suppl.) (WPIC).
Additional jury instructions defined "willfully" as "to purposefully act with knowledge that this action will hinder, delay, or obstruct a law enforcement officer in the discharge of the officer's official duties." CP at 51 (emphasis added); see WPIC 120.02.01, at 212 (2005 Suppl.). These instructions track the statutory elements. See RCW 9A.76.020; State v. CLR, 40 Wn. App. 839, 841-42, 700 P.2d 1195 (1985); see also WPIC 120.02 (notes analyzing obstruction's "wilfullness" element).
The last sentence of the "knowledge" definitional instruction reads: "Acting knowingly or with knowledge also is established if a person acts intentionally." CP at 34, 52; see also 11 WPIC 10.02, at 150 (2d ed. 1994). Neither party objected to the trial court giving these instructions.
It appears that the trial court proposed the instructions, so the invited error doctrine does not apply. See State v. Studd, 137 Wn.2d 533, 546-49, 973 P.2d 1049 (1999) (ruling that the invited error doctrine precludes a party from complaining about a jury instruction that she proposed).
B Validity of Instructions
Relying on our decision in State v. Goble, 131 Wn. App. 194, 126 P.3d 821 (2005), Haselman argues for the first time on appeal that the last sentence of the unchallenged "knowledge" instruction created a mandatory presumption and allowed the jury to convict her if it found that she had acted intentionally and that, therefore, she may challenge the instruction for the first time on appeal. Haselman argues, for example, that this instruction allowed the jury to presume that she knew the victim's status if the jury found that she (1) intentionally assaulted Deputy Keegan or (2) intentionally obstructed a law enforcement officer.
In the absence of objection, we review jury instructions for only an error of constitutional magnitude. RAP 2.5(a)(3); State v. Hanna, 123 Wn.2d 704, 709-10, 871 P.2d 135, cert. denied, 513 U.S. 919 (1994). One type of constitutional error is when an erroneous instruction allowed the jury to assume that the State need not prove a charge's essential element, thus relieving the State of its burden of proving every element of the charge beyond a reasonable doubt.
See State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995) (it is reversible error under de novo standard of review if jury instructions relieve the State of its burden of proving every element beyond a reasonable doubt), cert. denied, 518 U.S. 1026 (1996); State v. Deal, 128 Wn.2d 693, 699, 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve the State of the burden of proving an element of the offense).
In Goble, we analyzed a "knowledge" instruction that included the sentence, "[a]cting knowingly or with knowledge also is established if a person acts intentionally." 131 Wn. App. at 202 (emphasis omitted). In that case, we held that the instruction was confusing because it potentially allowed the jury to find the defendant guilty of third degree assault against a law enforcement officer if it found that the defendant intentionally assaulted the victim, even if the jury did not find that the defendant knew the victim was a law enforcement officer performing his official duties. Goble, 131 Wn. App. at 202-03. The facts in Goble are relevant to Haselman's third degree assault charge but not to her obstruction charge.
Here, the knowledge instruction did not relieve the State of its burden to prove the essential elements of obstruction. Goble's analysis applies only when the State must prove more than one mental state; otherwise, the State is not relieved of its burden. State v. Boyd, 137 Wn. App. 910, 924, 155 P.3d 188 (2007); State v. Gerdts, 136 Wn. App. 720, 728, 150 P.3d 627 (2007). Additionally, we analyze the effect of an instruction's particular phrase by considering the jury instructions as a whole and reading the challenged portions in the context of all the instructions. State v. Keend, 140 Wn. App. 858, 865, 166 P.3d 1268 (2007) (distinguishing Goble) (citing State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)).
The obstruction charge at issue here contains two mental states and, therefore, does fall within Goble's scope. Gerdts, 136 Wn. App. at 728. To obtain an obstruction conviction, the State was required to prove that Haselman (1) acted purposefully with knowledge (i.e., was wilfull) that the act would obstruct a law enforcement officer's duties and (2) had knowledge that the law enforcement officer was discharging official duties at the time. Knowledge and wilfullness are synonymous in many legal contexts. RCW 9A.08.010(d)(4) (defining wilfullness as synonymous with knowledge unless the law at issue requires a different definition). But here, for the jury to conclude that the wilfullness element was satisfied, it had to find that Haselman acted with knowledge coupled with a purposeful act. WPIC 120.02 (notes analyzing "wilfullness" requirement for obstruction).
Regarding obstruction, Haselman's knowledge instruction did not confuse the jury. Keend, 140 Wn. App. at 865. In contrast to Goble, instructions 9, 10, 12, and 13 clearly required the jury to find that Haselman (1) acted purposefully with knowledge that the act would obstruct a law enforcement officer's duties and (2) had knowledge that the law enforcement officer was discharging official duties at the time. Instruction 9 defined obstruction. Instruction 10 was the to-convict instruction for that crime. And instructions 12 and 13 defined the mental states of wilfullness and knowledge.
Read together, these instructions do not conflate the wilfullness and knowledge elements, which are set out in separate elements in the to-convict instruction and separate mental states instructions. Cf. Goble, 131 Wn. App. at 203. In other words, the "knowledge" instruction did not allow the jury to presume that (1) if Haselman intentionally kicked or spat on an officer or resisted the officer's commands, then (2) the State was not required to prove that Haselman acted purposefully with knowledge that her act would obstruct a law enforcement officer's official duties or knew the law enforcement officer was discharging official duties at the time. To the contrary, as instructed here, the jury could only have convicted Haselman if it found beyond a reasonable doubt that she intentionally assaulted Deputy Keegan or resisted the officers' commands, knowing they were performing official duties. Thus, Goble is inapposite here and the knowledge instruction did not relieve the State of its burden of proving every element of obstruction.
Moreover, this alleged error in the jury instructions is harmless beyond a reasonable doubt. A constitutional error is harmless if the reviewing court is convinced beyond a reasonable doubt that the same result would have been reached in the absence of the error. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985) (citing State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980)), cert. denied, 475 U.S. 1020 (1986). Constitutional error is presumed prejudicial and the State must prove that the error was harmless. Stephens, 93 Wn.2d at 190-91. When applied to an element omitted from, or misstated in, a jury instruction, the error is harmless if uncontroverted evidence proves that element beyond a reasonable doubt. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (citing Neder v. United States, 527 U.S. 1, 18-19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)).
The uncontroverted evidence at both trials clearly established that Haselman knew the victim was a law enforcement officer performing official duties at the time. In the 2007 trial that resulted in her third degree assault conviction, Haselman testified on direct and cross-examination:
Q [by defense counsel]. . . . And on January 8th, 2005, . . . did you or Mr. Rushbrook have any contact with law enforcement officers?
A. Yes, we did. . . .
Q [by prosecutor]. And, um, you got out of the car; correct?
A. When the trooper — Officer Fallon came over and asked me to get out.
Q. And you were complying because they were law enforcement?
A. Yeah, uh-huh.
Q. You knew they were law enforcement, that they were acting in their official capacity; correct?
A. Uh-huh.
Report of Proceedings (RP) (Apr. 4, 2007) at 59-60, 81. This uncontroverted evidence supports the assault element that Haselman knew that Officer Keegan was a law enforcement officer performing his official duties. Goble, 131 Wn. App. at 202-03.
Similarly, in the 2005 trial that resulted in the obstruction conviction, Haselman testified on direct examination:
Q So, on the afternoon of the 8th, do you recall any encounter with a State Trooper?
A Yes.
Q What happened?
A Officer Keegan pulled up and signaled, yeah I think it was him that signaled my boyfriend to get out of the car cuz [sic] he was you know, testing his four wheel drive in the snow.
Q Was it a Deputy Sheriff or a State Trooper?
A A State Trooper. . . .
A Then the Trooper walked over to the truck on the driver's side and asked me if I was okay, you know, to drive and I said yeah and then I just asked him why he arrested Ben and he said because he was drinking and driving and then he walked back over to his car and I guess he called for backup and two other police officers, one was in civilian clothes, came. . . .
A And then Officer John Dick came over and helped [a man wearing a blue State Trooper uniform] to get me up on my feet and I was barefoot and then he, Officer John Dick disappeared and Officer Keegan walked me over to his car to put me in the car and he kind of like pushed me into the car and I lost my footing and my leg kind of slipped backwards, but in no way was I trying to kick or hurt him in anyway shape or form.
RP (Apr. 14, 2005) at 6-10. This testimony shows that Haselman knew, when she committed obstruction, the people who ordered her to comply were law enforcement officers who were discharging official duties.
Haselman argued for the first time during oral argument that the evidence is controverted because the jury could have believed Haselman's theory that she was the victim of police brutality and, therefore, the victim was not "performing official duties." But even if the jury believed that one plain clothed police officer hit her, that does not render Officer Keegan or the other officer's performance outside the scope of official police duties. Her sole alleged perpetrator was not the victim of her crimes and the uncontroverted evidence supports the conclusion that the victims were on-duty officers.
Uncontroverted evidence supported Haselman's assault and obstruction convictions beyond a reasonable doubt. Accordingly, any error in instructing the jury was harmless beyond a reasonable doubt.
D. Effective Assistance of Counsel
Haselman further argues that her counsel was ineffective because he did not object to the knowledge jury instruction. To demonstrate ineffective assistance of counsel, Haselman must show that (1) defense counsel's representation was deficient and (2) the deficient representation prejudiced her. State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).
As discussed above, the court's knowledge instruction did not prejudice Haselman because she admitted knowing that her victim was an on-duty police officer and this was not a controverted issue for the jury to resolve. Her claim of ineffective assistance of counsel must fail on the prejudice prong. In addition, we note that this alleged error benefited Haselman by increasing the State's burden of proof. Therefore, counsel's decision to refrain from objecting to the knowledge instruction was a legitimate trial tactic and his performance was not deficient. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999) (ruling that performance is not deficient if counsel's trial conduct is a legitimate trial strategy or tactic); State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722, cert. denied, 479 U.S. 922 (1986).
Haselman's trial counsel was not ineffective.
Elements Of Third Degree Assault
Haselman next argues that the third degree assault information and "to-convict" instruction are deficient because they omit the statutory language that the assault was "under circumstances not amounting to assault in the first or second degree." RCW 9A.36.031(1). Our Supreme Court rejected this argument in State v. Ward, 148 Wn.2d 803, 814, 64 P.3d 640 (2003). In Ward, the court held that "[t]he State is required to prove that the predicate assault `does not amount to assault in the first or second degree' only when the State additionally charges the defendant with first or second degree assault." 148 Wn.2d at 806 (quoting RCW 26.50.110(4)). Here, the State did not charge Haselman with first or second degree assault. Accordingly, the information and jury instructions were sufficient. Accord State v. Blatt, 139 Wn. App. 555, 560, 160 P.3d 1106 (2007), review pending, 2008 Wash. LEXIS 357 (Apr. 2, 2008). Separation Of Powers
See note 1, supra.
Finally, Haselman argues that her assault conviction violates the separation of powers doctrine because Washington common law, rather than a statute, defines assault. After Haselman filed her brief, our Supreme Court squarely addressed this issue and held that common law definitions do not violate the separation of powers doctrine. State v. Chavez, 163 Wn.2d 262, 274, 180 P.3d 1250 (2008). Chavez controls and we affirm on this ground.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.