Opinion
No. 35498-5-II.
January 15, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 06-1-00559-1, H. John Hall, J., entered October 24, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Bridgewater and Penoyar, JJ.
Kevin Lee Roller appeals his convictions for attempting to elude a pursuing police vehicle and two counts of second degree assault. He argues that jury instructions for the eluding charge omitted various "elements" because they failed to require the jury to find that he (1) drove in a reckless manner; (2) was given a visual or audible signal to stop; or (3) attempted to elude or drove in a reckless manner after the officers signaled him to stop. He further argues that we should reverse his assault convictions because (1) the to-convict instructions and the State's information failed to require proof that he committed the assaults under circumstances not amounting to first degree assault, and (2) the Legislature's failure to define "assault" and Washington courts' reliance on common law definitions of assault violate the separation of powers doctrine.
We affirm.
FACTS I. Incident
On August 23, 2006, Kevin Lee Roller drove his vehicle toward a uniformed officer who had approached on foot and told Roller to stop. Roller fled from the scene. He drove through town with three marked police cars in pursuit. He failed to stop at stop signs, drove over a curb to avoid another vehicle, and swerved toward one police car that approached along side his vehicle during the pursuit. The pursuing officers eventually stopped Roller and arrested him.
II. Procedure
The State charged Roller with two counts of second degree assault with a deadly weapon (his vehicle) for assaulting Officers Buddy Eugene Croy and Michael Lowery of the Centralia Police Department (counts I and II); one count of attempting to elude a pursing police vehicle (count III); and one count of second degree driving while license suspended (count IV). The State's information alleged that Roller had committed the second degree assaults in violation of RCW 9A.36.021(1)(c).
RCW 9A.36.021(1)(c) provides that a person is guilty of assault in the second degree if he assaults another with a deadly weapon "under circumstances not amounting to assault in the first degree." The State's information did not expressly allege that Roller committed the assaults under circumstances not amounting to first degree assault.
The record does not show whether Roller submitted or requested any specific jury instructions. The trial court gave the jury the following jury instructions:
Instruction 13 (to-convict, attempted-eluding) provided in part:
To convict the defendant of Attempting to Elude a Pursing Police Vehicle as charged in Count III, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 23rd day of August, 2006, the defendant drove a motor vehicle;
(2) That the defendant was signaled to stop by a uniformed police officer by hand, voice, emergency light or siren;
(3) That the signaling police officer's vehicle was appropriately marked, showing it to be an official police vehicle, equipped with lights and siren;
(4) That the defendant willfully failed or refused to immediately bring the vehicle to a stop after being signaled to stop;
(5) That while attempting to elude a pursing police vehicle, the defendant drove his vehicle in a manner indicating a wanton or willful disregard for the lives or property of others;
(6) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 45 (emphasis added). Instruction 7 (to-convict, second degree assault against Croy) provided in part:
To convict the defendant of the crime of assault in the second degree as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 23rd day August, 2006, the defendant assaulted Officer Croy with a deadly weapon; and
(2) That this act occurred in the State of Washington.
CP at 39. Instruction 8 was identical to instruction 7 except that it related to Count II, the assault against Lowery.
Neither instruction required the jury to find that Roller committed the second degree assaults under circumstances not amounting to first degree assault. The record does not show which party requested these instructions.
Instruction 10 defined the term "assault" as follows:
Instruction 10 was based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 35.50, at 291 (2d ed. Supp. 2005), which is, in turn, based on the common law. See State v. Stevens, 158 Wn.2d 304, 313, 143 P.3d 817 (2006).
An assault is an intentional touching or striking of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive, if the touching or striking would offend an ordinary person who is not unduly sensitive.
An assault is also an act, with unlawful force, done with intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.
An assault is also an act, with unlawful force, done with the intent to create in another apprehension of fear and of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
An act is not an assault, if it is done with the consent of the person alleged to be assaulted.
CP at 42.
The record does not show that Roller objected to any of the trial court's instructions.
The jury found Roller guilty of two counts of second degree assault and felony attempting to elude a pursing police vehicle. Roller appeals.
The jury also convicted Roller of second degree driving while license suspended, but he does not challenge that conviction on appeal.
ANALYSIS I. Attempted Eluding Conviction
Roller first challenges jury instruction 13, the to-convict instruction for the attempted eluding charge. He argues that this instruction improperly relieved the State of its burden of proving some elements of the crime. We disagree.
The eluding statute, RCW 46.61.024(1), provides:
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and the vehicle shall be equipped with lights and sirens.
The first sentence of former RCW 46.61.024 (1983) provided:
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or willful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony.
(Emphasis added). In 2003, the Legislature replaced the "wanton or willful" standard with the "reckless manner" standard. Laws of 2003, ch. 101 § 1.
(Emphasis added.)
A. Standards of Review
We review the adequacy of jury instructions de novo as questions of law. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). "Parties are entitled to instructions that, when taken as a whole, properly instruct the jury on the applicable law, are not misleading, and allow each party the opportunity to argue their theory of the case." State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d 1001 (2003).
"[D]ue process requires the State to prove every element of the charged crime beyond a reasonable doubt." State v. Smith, 155 Wn.2d 496, 502, 120 P.3d 559 (2005). A jury instruction that relieves the State of its burden to prove every element of the crime is an error of constitutional magnitude, which we may review for the first time on appeal. See RAP 2.5(a)(3); State v. Hanna, 123 Wn.2d 704, 709, 871 P.2d 135, cert. denied, 513 U.S. 919 (1994). "Constitutional error is presumed to be prejudicial and the State bears the burden of proving that the error was harmless." State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). But a "constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." Guloy, 104 Wn.2d at 425.
B. "Recklessness" versus "Wanton or Willful Disregard"
Roller argues that by requiring the jury to find he drove his vehicle "in a manner indicating a wanton or willful disregard for the lives or property of others," rather than in a "reckless manner," jury instruction 13 lowered the State's burden of proof and, in essence, omitted an element of the charged offense. CP at 46. Conceding that the instruction did not contain the correct statutory language, the State argues that the error was harmless. We agree with the State.
We recently rejected an argument identical to Roller's in State v. Ridgley, Wash. App. 2007 Lexis 3106 at 13-14. We held in Ridgley that requiring the jury to find that the defendant drove his vehicle "in a manner indicating a wanton or willful disregard for the lives or property of others," CP at 45, rather than in a "reckless manner," was harmless error beyond a reasonable doubt under State v. Roggenkamp, 153 Wn.2d 614, 106 P.3d 196 (2005), and RCW 9A.08.010(2), which allows proof of a higher mental state to establish the presence of a lower mental state. Ridgley controls here. Ridgley, 2007 Wash. App. LEXIS at 11, 14.
RCW 9A.08.010 (2) provides:
When a statute provides that criminal negligence suffices to establish an element of an offense, such element also is established if a person acts intentionally, knowingly, or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts intentionally.
Roller further argues, however, that, even if "reckless manner" is subsumed within the "willful or wanton" standard, the trial court's jury instructions were confusing and could have misled the jury. We disagree. Read together, the jury instructions as a whole properly informed the jury of the higher "willful or wanton" standard. Redmond, 150 Wn.2d at 493. Thus, we cannot conclude that any reasonable jury would have reached a different verdict if the trial court had instructed that the State needed to prove only that Roller acted in a "reckless manner," rather than with "willful and wanton" disregard for the lives and property of others.
Accordingly, we hold that any error in the wording of jury instruction 13 was harmless error beyond a reasonable doubt.
C. Visual or Audible Signal to Stop
Roller next argues that in failing to require the jury to find that "the officer gave `a visual or audible signal' to stop," the attempted eluding to-convict instruction omitted another element of the charged crime. Again, we disagree.
Instruction 13 required that, in order to convict Roller, the jury must find that he "was signaled to stop by a uniformed police officer by hand, voice, emergency light or siren." CP at 45. Instead of the more general "visual or audible signal" language from the beginning of RCW 46.61.024(1), jury instruction 13 uses the more specific language from the end: "The signal given by the police officer may be by hand, voice, emergency light, or siren." RCW 46.61.024(1). We fail to see how use of this language omitted or misstated an element of the crime or relieved the State of its burden of proof.
We hold, therefore, that Instruction 13 did not omit an element of the attempted eluding offense by using the statute's more specific terms to describe the officer's signal.
D. Sequence of Actions
Roller further argues that instruction 13 also omitted an element by failing to require the jury to find that "Roller's attempt to elude occurred after he was signaled to stop." Br. of Appellant at 7. This argument also fails.
The State does not respond to this argument.
This to-convict instruction required the jury to convict Roller if it found that "the defendant willfully failed or refused to immediately bring the vehicle to a stop after being signaled to stop." CP at 45 (emphasis added). This language clearly required the jury to find that Roller's attempt to elude occurred after the officers signaled him to stop. Thus, this instruction did not omit an element.
We hold that jury instruction 13, the to-convict instruction for attempting to elude, created no reversible error.
II. Second Degree Assault Convictions A. Elements
Roller further argues that the State's information was constitutionally deficient because it failed to allege an "essential element" of second degree assault, namely that he committed the assaults under "circumstances not amounting to first degree assault." In a related argument, he argues that the second degree assault to-convict instructions were deficient because they omitted this same "element."
A defendant may challenge the sufficiency of a charging document for the first time on appeal. State v. Kjorsvik, 117 Wn.2d 93, 107-08, 812 P.2d 86 (1991).
We recently rejected these same arguments in State v. Keend, 140 Wn. App. 858, 166 P.3d 1268 (2007), petition for review filed, (No. 80726-4). Finding no basis to revisit our recent holding, we hold that Roller's challenges fail for the reasons we articulated in Keend.
The Court has set the petition for review for consideration on July 8, 2008.
B. Separation of Powers
Finally, Roller argues that we must reverse his second degree assault convictions because the Legislature failed to define "assault" and the courts' reliance on common law definitions of assault violates the separation of powers doctrine. As we noted in Keend, we recently rejected this same argument in State v. Chavez, 134 Wn. App. 657, 142 P.3d 1110 (2006), review granted, 160 Wn.2d 1021 (2007). In Chavez, we held that the judiciary has not violated the separation of powers doctrine by defining common law assault. Chavez, 134 Wn. App. at 659, 666-68; see also, Keend, 140 Wn. App. at 862. Unpersuaded to revisit our holding, we find Chavez controlling and reject Roller's similar argument.
Chavez was heard by the Washington State Supreme Court on October 23, 2007.
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.
BRIDGEWATER, P.J. and PENOYAR, J., concur.