Opinion
No. 37338-6-II.
February 18, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-01894-1, Gary R. Tabor, J., entered January 16, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Quinn-Brintnall, JJ.
Shane Morse appeals his jury convictions for third degree assault, RCW 9A.36.031(1)(g), and fourth degree assault, RCW 9A.36.041. He argues that the evidence is insufficient to support his convictions because the State failed to meet its burden of establishing the elements of both charges. We affirm.
Facts I. Assaults A. Fourth Degree Assault of Connor
At 6:30 pm on October 25, 2007, Kelsey Connor was working at a Thurston County espresso stand when Shane Morse appeared at the window. Connor had never seen Morse before. He was wearing a white tank top, exposing his arms which were covered in tattoos.
When Connor went to the window to take Morse's order, Morse grabbed her hand. Connor immediately pulled her hand away. Morse scared her, and she did not want him to touch her. Morse introduced himself as "Cain" and pointed out the tattoo on his right hand, which spelled out this name. He continued to lean into the stand's window, repeatedly asking Connor for her telephone number and to go out on a date with him. Morse also told Connor that "he made like $3,600 that day from selling drugs and tattooing people," offered her OxyContin, and informed her that he was in prison in Walla Walla.
In the Verbatim Report of Proceedings, the court reporter spelled Cain as "Cane."
The record does not provide additional information about Morse's connection with the penitentiary in Walla Walla. Connor simply testified, "He said he was in the state penitentiary." Verbatim Report of Proceedings (VRP) at 22.
Morse asked Connor, "Are you scared of me?" Not answering the question directly, Connor asked Morse if she should be afraid of him. Connor wanted Morse to leave, but never directly asked him to leave. Instead, despite the fact that it was not yet closing time, Connor told Morse that she needed to close the espresso stand and walked over to close the stand's window. Morse again grabbed her hand. Scared and still not wanting him to touch her, Connor pulled her hand away a second time.
After Morse left, Connor shut and locked the stand's window. Shaken by her interaction with Morse, Connor called her boyfriend and 911, explaining what had transpired and that she had seen Morse enter the nearby Chevron gas station.
The record provides little information about Connor's conversation with the 911 operator.
B. Morse's Arrest
Three police officers — Kelly Clark, Christopher Tressler, and Russell Mize — arrived at the scene looking for Morse, believing him to be armed with a weapon. Clark and Mize saw Morse inside the Chevron gas station. When the officers entered the gas station, Morse attempted to hide, swore at the officers, and initially refused to get down on his knees. Once Morse "found out that [the officers] were serious about the detention, he then became compliant." VRP at 98.
The record before us on appeal does not explain why the officers believed Morse was carrying a weapon.
The officers explained to Morse that they were not arresting him, but detaining him while they conducted an investigation of a possible assault against Connor. Tressler entered shortly after the other officers had detained Morse and handcuffed Morse's hands behind his back. Morse was agitated and again swore at the officers. The officers reiterated that Morse was not under arrest, but was being detained while they investigated the incident.
The officers placed Morse in the back of Clark's police car. Clark stayed with the car while Mize and Tressler interviewed Connor. To Tressler and Mize, Connor appeared visibly shaken and scared. Mize saw red marks on Connor's arm where she said Morse had grabbed her; there was no swelling.
When Mize returned from talking with Connor, Clark informed him that Morse had said he wished to speak with an attorney. Mize then advised Morse of his Miranda rights. Mize noticed that Morse had somehow moved his hands to the front of his body from behind his back, where they had been cuffed; this action presented safety concerns for the officers. Mize and Clark removed Morse from the vehicle to re-handcuff him; they then placed him under arrest for assaulting Connor. Morse again swore and yelled at the officers.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
C. Third Degree Assault of Officer Mize
After placing Morse under arrest, Mize searched him. In accordance with standard police procedures requiring that all items be removed from arrestees, Mize removed items from Morse's pockets and then attempted to unclasp the silver necklace Morse wore around his neck. Morse said that his grandmother had given him the necklace and that the officers were not going to take it from him. Morse again started swearing at the officers, while moving from side to side, trying to prevent Mize from removing the necklace.
Unable to unclasp the necklace, Mize attempted to lift the necklace over Morse's head. Morse continued to fidget, and said, "You ain't f**king taking it, b***h." VRP at 106. Morse then moved his head backward and slammed it into Mize's face. Although based on Morse's movements Mize "anticipated" the blow, the blow momentarily stunned him and broke the necklace. Mize was on duty and wearing his police uniform at the time.
Officers Tressler and Clark brought Morse to the ground. Morse resisted. After Officer Clark used his stun gun to subdue Morse, the officers re-handcuffed Morse.
II. Procedure
The State charged Morse by first amended information with one count each of assault in the third degree and assault in the fourth degree. The State alleged that Morse committed third degree assault against Mize when he "assault[ed] 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." Clerk's Papers (CP) at 9. The State alleged that Morse committed fourth degree assault when he "did assault another, to wit Kelsey K Conner."
The State deleted "intentionally" as the modifier of "assault" in both Counts I and II in the original information.
This appears to be a misspelling of Connor's surname.
At Morse's jury trial, the officers and Connor testified about the above facts. Morse presented no witnesses. The jury found him guilty of both charges.
Morse appeals.
Analysis
Morse argues that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of third degree and fourth degree assault. We disagree.
I. Standard of Review
"The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Scoby, 117 Wn.2d 55, 61, 815 P.2d 1362 (1991). A claim of insufficiency admits the truth of the State's evidence. Salinas, 119 Wn.2d at 201. We draw all reasonable inferences in favor of the State and interpret them most strongly against the defendant. State v. Craven, 67 Wn. App. 921, 928, 841 P.2d 774 (1992). We defer to the fact finder "on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
II. Assaults
Because "assault" is not statutorily defined, Washington courts apply the common law definition. State v. Stevens, 158 Wn.2d 304, 310-11, 143 P.3d 817 (2006); accord Clark v. Baines, 150 Wn.2d 905, 908 n. 3, 84 P.3d 245 (2004) (citing State v. Aumick, 126 Wn.2d 422, 426 n. 12, 894 P.2d 1325 (1995)). Washington recognizes three definitions of "assault":
(1) an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting that harm.
Clark, 150 Wn.2d at 908 n. 3, (citing Aumick, 126 Wn.2d 426 n. 12) (emphasis added). Here, the trial court provided all three definitions to the jury.
Jury Instruction No. 10 mirrors the language from the Washington Pattern Jury Instructions, 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 35.50, at 547 (3d ed. 2008).
A. Fourth Degree
RCW 9A.36.041 provides that a person "is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault," he assaults another. Morse argues that the evidence does not meet the elements of fourth degree assault against Connor; in particular, Morse focuses on the sufficiency of the evidence supporting Morse's intent to commit the assault. This argument fails.
Drawing all reasonable inferences in favor of the State, as we must, the State presented sufficient evidence that Morse committed fourth degree assault against Connor. Under Clark's third definition of "assault," a jury could reasonably conclude that Morse put Connor in a state of apprehension of harm, regardless of whether or not Morse actually intended to inflict harm. Although the third definition of assault does not require the State to show that Morse intentionally acted to put Connor in a state of apprehension, the evidence indicates that Morse did so.
Intent is a court-implied, rather than a statutorily defined, element of assault in the fourth degree. State v. Walden, 67 Wn. App. 891, 894, 841 P.2d 81 (1992) (citing State v. Davis, 119 Wn.2d 657, 662, 835 P.2d 1039 (1992)). "Intent, being a state of mind, can be inferred by the jury from all of the facts and circumstances surrounding the act. This rule is as applicable in cases of attempted crimes as it is in cases where the crime has been consummated." State v. Lewis, 69 Wn.2d 120, 123, 417 P.2d 618 (1966) (citations omitted).
Having no previous relationship with Connor, Morse, a stranger, intentionally touched Connor's hand not once, but two times, while she was working in the espresso stand alone. Both times, Connor quickly withdrew her hand from Morse. A jury could reasonably conclude that Morse put Connor in a state of apprehension when he leaned into the espresso stand window and grabbed her hand a second time, particularly in light of her having immediately pulled away after he had initially touched her the first time.
Additionally, Morse repeatedly asked Connor to give him her telephone number and to go on a date with him, ignoring her continued refusals. Morse also made sure that Connor knew he had connections with criminal activities: He offered her drugs, told her he sold drugs, and stated that he was in prison. That Morse asked Connor if he scared her, when she backed away, shows he knew his actions frightened her. And, in fact, Morse's actions did scare Connor.
We hold that these circumstances provide sufficient evidence to support the jury's conviction of Morse for fourth degree assault against Connor.
B. Third Degree
Morse similarly argues that the evidence presented at trial is insufficient to support his conviction for third degree assault against Officer Mize. For the first time on appeal, Morse argues that his contact with Mize was accidental. His argument fails.
To support a conviction for assault under RCW 9A.36.031(1)(g), the State had to prove that Morse "intended to commit and did commit an assault" where:
RCW 9A.36.031(1)(g) provides:
(1) A person is guilty of assault in the third degree if he or she, under the 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)(g). Like fourth degree assault, courts similarly imply intent as an element of third degree assault. State v. Tummey, 77 Wn. App. 929, 933, 895 P.2d 13 (1995) aff'd, 129 Wn.2d 336 (1996), and Craven, 67 Wn. App. at 926; see State v. Brown, 140 Wn.2d 456, 470, 998 P.2d 321 (2000).
(1) the victim was a law enforcement officer engaged in the performance of official duties at the time of assault; (2) the law enforcement officer had a reasonable apprehension and imminent fear of bodily injury at the time of the assault; and (3) the defendant's actions created that apprehension.
State v. Brown, 140 Wn.2d 456, 470, 998 P.2d 321 (2000).
Mize and the other officer testified that Morse began fidgeting before forcefully moving backward to slam into Mize's face. Morse's movements caused Mize to anticipate Morse's blow, which nevertheless stunned Mize. In light of these facts, a jury could reasonably conclude that Mize had a reasonable apprehension and imminent fear of bodily injury at the time of Morse's assault.
Furthermore, given the close proximity of Morse and Mize, Morse's behavior immediately preceding the blow, and the force of the blow itself, a jury could reasonably conclude that Morse intended to assault Mize. This evidence also satisfies the definitions of assault established in Clark, supra.
Viewed in the light most favorable to the State, the evidence was sufficient to show that Morse intended to and did assault Officer Mize, a police officer with the Tumwater Police Department, who had been on duty and was wearing his police uniform on the night of the assault. Mize's testimony supports the jury's determination that he was acting in his official duty as a law enforcement officer at the time of Morse's assault. Accordingly, we hold that sufficient evidence supports the jury's finding Morse guilty of third degree assault of Officer Mize.
We affirm.
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 Quinn-Brintnall, J., concur.