Opinion
No. 27256-7-III.
September 22, 2009.
Appeal from the Superior Court, Spokane County, No. 07-1-04415-0, Gregory D. Sypolt, J., entered June 16, 2008.
Affirmed in part and remanded by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
This is a prosecution for eluding a police officer and second degree assault by motor vehicle. The appellant fled from police in a car and then struck the police cruiser with his car when police tried to stop him. He challenges the sufficiency of the evidence to support his conviction and the procedure used to enhance his sentence. We conclude that the evidence is sufficient to support his conviction for second degree assault. We agree with the parties that the attempt to submit the sentence enhancement to the jury was flawed. And we, therefore, remand for the sentencing judge to decide whether some of the crimes here go unpunished because of the appellant's lengthy criminal history.
FACTS
Spokane police officer Charles Reynolds saw a Saturn that had been reported stolen parked at a Chevron gasoline station on an evening in October 2007. Curtis Anderson drove the car; a female passenger was also in the car. Officer Reynolds, in uniform and driving a marked patrol car, followed the stolen vehicle as Mr. Anderson drove it onto Spokane city streets. Mr. Anderson accelerated around a corner. Officer Reynolds activated his lights and siren and took off in pursuit.
Mr. Anderson continued to drive despite the lights and siren. He sped along driving from 45 up to 70 miles per hour and decelerating only to approximately 20 to 60 miles per hour at most stop signs or stop lights. At one point, he drove 20 miles over the speed limit in the Gonzaga University neighborhood, where there are normally pedestrians. Police officers in marked patrol cars blocked traffic along Mr. Anderson's anticipated route. Police set out spike strips along the route Mr. Anderson seemed to follow. Mr. Anderson did not slow down and drove past the spike strip area. And he also avoided another spike strip.
Officer Reynolds caught up with Mr. Anderson and attempted a "pit maneuver," where the front of the patrol car makes contact with the rear of the suspect car to cause the target vehicle to spin and stall. Officer Reynolds made the contact with Mr. Anderson's car, and Mr. Anderson's car entered into a partial spin. Mr. Anderson then accelerated and rapidly braked, causing the patrol car to rear end the Saturn.
Mr. Anderson drove away. Officer Reynolds attempted a second pit maneuver several blocks later. He approached Mr. Anderson's vehicle with the patrol car. But Mr. Anderson swerved at the patrol car, rapidly applied the brakes, and then swerved again. Officer Reynolds steered out of the way. Mr. Anderson swerved at the patrol car and braked three more times. Officer Reynolds retreated briefly before attempting a third pit maneuver. Mr. Anderson again swerved at the patrol car multiple times, and Officer Reynolds steered away to avoid a high speed collision. Officer Reynolds soon attempted another pit maneuver and scraped up against the Saturn; both cars then came to a stop. Another patrol vehicle arrived to block Mr. Anderson's car.
Police arrested Mr. Anderson. Mr. Anderson told the officer that he had no memory of fleeing from the police or of being inside the stolen car. He also said that he was schizophrenic and had multiple personalities.
The State charged Mr. Anderson with one count of attempt to elude a police vehicle and one count of second degree assault with a motor vehicle. The State charged both Mr. Anderson and his passenger with possession of a stolen motor vehicle. The jury convicted Mr. Anderson on all three counts. The court then instructed the jury to deliberate on whether the standard range of punishment for the crimes was "clearly too lenient" given prior felony criminal history that went uncounted in the offender score calculation. The court's third supplemental instruction consisted of a list of Mr. Anderson's felony criminal history. Mr. Anderson did not object to the accuracy of the criminal history or to the inclusion of his criminal history in the supplemental jury instructions. Mr. Anderson did, however, object to the court reading his criminal history aloud before sending it back with the jury to use during their deliberations on the sentencing question. So the trial judge did not read the full list, but instead directed the jury to read the body of the third supplemental instruction. And Mr. Anderson objected to the supplemental instructions and the procedure of submitting the sentencing question to the jury. He argued that the trial court lacked authority to reconvene a jury to determine whether Mr. Anderson's presumptive sentence was "clearly too lenient." Report of Proceedings (RP) at 311.
The jury returned a special verdict finding that the State had proven beyond a reasonable doubt that the presumptive sentence was clearly too lenient here.
DISCUSSION
Sufficient Evidence — Second Degree Assault
Mr. Anderson first contends that the evidence does not support second degree assault. He argues that all his swerving back and forth was in response to the officer's pit maneuvers.
The standard of review is substantial evidence. State v. Fiser, 99 Wn. App. 714, 718, 955 P.2d 107 (2000). That is, we review the record to determine whether substantial evidence supports the jury's verdict. Id. The criteria are modest. We view the evidence in the light most favorable to the State and ask whether any rational fact finder could have found the elements of the crime beyond a reasonable doubt. State v. Gentry, 125 Wn.2d 570, 596-97, 888 P.2d 1105 (1995). A claim of insufficiency "admits the truth of the State's evidence and all inferences that can reasonably be drawn from that evidence." Id. at 597.
Assault in the second degree required that the State prove that Mr. Anderson assaulted Officer Reynolds with a deadly weapon. RCW 9A.36.021(1)(c); Clerk's Papers (CP) at 1. There are 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 v. Baines, 150 Wn.2d 905, 908 n. 3, 84 P.3d 245 (2004) (quoting State v. Aumick, 126 Wn.2d 422, 426 n. 12, 894 P.2d 1325 (1995)). Specific intent is an element of assault for cases of assault by attempting to cause injury or assault by attempting to cause fear of injury. State v. Byrd, 125 Wn.2d 707, 716, 887 P.2d 396 (1995). But when assault is accomplished by battery, the State is required to prove only that the defendant intended to do the physical assault. State v. Baker, 136 Wn. App. 878, 883-84, 151 P.3d 237 (2007). And we have assault by battery here.
The jury could have chosen among several acts that the State alleged constituted assault by Mr. Anderson against Officer Reynolds with a deadly weapon, the stolen car. Mr. Anderson rapidly accelerated and then applied the brakes. This caused Officer Reynolds to slam into the back of the stolen car. That is an assault by actual battery. It was an intentional touching. Id. Mr. Anderson swerved wildly on two separate occasions toward Officer Reynolds in his patrol car each time Officer Reynolds approached Mr. Anderson's vehicle to attempt a pit maneuver. These acts would constitute assault by attempting to cause injury to Officer Reynolds or assault by attempting to cause fear of injury. Byrd, 125 Wn.2d at 716.
The record here supports Mr. Anderson's conviction for assault in the second degree, whether the jury found that the rapid braking followed by the collision, either act of wild swerving, or all of these acts, constituted the assault. Although a trier of fact may not presume specific intent, the jury may certainly infer intent as a matter of logical probability from the evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). The State presented ample testimony that each time Officer Reynolds approached Mr. Anderson's car to stop the high speed chase, Mr. Anderson either braked or swerved. A rational fact finder could infer from Mr. Anderson's actions that he intended to either inflict injury on Officer Reynolds or at least inflict fear of injury to prevent Officer Reynolds from impeding his escape.
Exceptional Sentence — Aggravating Factors
The trial judge gave the jury a supplemental instruction on Mr. Anderson's prior criminal history and then instructed the jury to decide whether the sentence was too lenient due to criminal history that went uncounted. The State agrees the procedure was flawed but is at a loss to say how the question should have been handled.
"The determination under RCW 9.94A.535(2)(c) that `some of the current offenses [go] unpunished' rests solely on criminal history and calculation of the offender score, without the need for additional fact finding by the jury." State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008) (alteration in original). We then we remand for the trial court to undertake the same inquiry — whether given the criminal history here some of the crimes go unpunished. See id. at 568-69.
We affirm the conviction and remand for further proceedings on the sentencing phase of the prosecution.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and BROWN, J., concur.