Opinion
No. 51709-1-I.
June 1, 2004.
Appeal from Superior Court of King County. Docket No: 02-1-07250-6. Judgment or order under review. Date filed: 01/13/2003. Judge signing: Hon. Donald D Haley.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Frank Shigaihisa Homsher, Attorney at Law, 617 Dayton St. Ste 11, Edmonds, WA 98020.
Counsel for Respondent(s), Steven W Kim, King Cty Pros Ofc, 516 3rd Ave, Seattle, WA 98104.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Intent is a non-statutory element of assault in the third degree and the trial court erred by not giving an instruction defining `intent'. However, we conclude that the court's failure to give an instruction defining `intent' was harmless beyond a reasonable doubt and affirm Gonzales' conviction for assault in the third degree.
FACTS
At approximately 10:40 p.m. on July 19, 2002, Seattle Police Department Officer Michael Lanz and Officer P.J. Fox were on bicycle patrol near Pioneer Square in downtown Seattle. Officer Lanz saw a group of people in Occidental Park looking at what Manuel Gonzales was holding in his hand Officer Lanz rode up to the group, looked over Gonzales' shoulder and saw that he was holding a folded piece of paper with crumbs of what appeared to be crack cocaine. Officer Lanz got off his bike. Gonzales turned around, saw Officer Lanz and dropped the paper. Officer Lanz retrieved the paper and its contents from the ground and held them in his hand After he arrested and handcuffed Gonzales, Gonzales kicked Officer Lanz's hand and the paper and its contents fell to the ground.
Gonzales was charged with possession of cocaine under RCW 69.50.401(d) and assaulting a law enforcement officer under RCW 9A.36.031(1)(g).
RCW 9A.36.031(1)(g) provides:
(1) 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.
At trial, Officer Lanz testified that after handcuffing Gonzales, he moved about five to ten feet away to look at the contents of the paper Gonzales dropped. Officer Lanz said he then saw Gonzales coming toward him and Gonzales' foot lunge toward his hand According to Officer Lanz, when Gonzales' foot hit his hand it came within inches of his face. Officer Fox testified he saw Gonzales take several steps before he kicked Officer Lanz's arm or hand Officer Fox described Gonzales' movement as similar to a football kicker.
Gonzales testified to a different version of events. Gonzales described several physical ailments he suffered from, including blood clots, frequent swelling in his left leg and amputated toes on his right foot. Gonzales told the jury that after he was handcuffed, he lost his balance because his left leg gave out and he fell backwards. He said that as he fell, his right leg raised up in the air two to three feet. Gonzales said he did not feel his foot hit Officer Lanz's hand and he did not intentionally kick Officer Lanz.
Gonzales' proposed jury instructions included the standard Washington Pattern Jury Instruction (WPIC) defining `intent'. The trial court did not include a definition of `intent' in the jury instructions and Gonzales objected:
`A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.' Clerk's Papers (CP) at 31. WPIC 10.01.
The defense also takes exception to the court's failure to give [WPIC] 10.01, which is [an] instruction that the person acts with intent or intentionally when acting with the objective or intent to reach an objective which constitutes a crime.
RP (11/20/2002) at 134-5.
The jury found Gonzales guilty of possession of cocaine and third degree assault. Gonzales appeals his conviction for assault in the third degree.
ANALYSIS
Gonzales argues the trial court erred when it refused to give the WPIC jury instruction defining `intent'. We agree.
This court reviews instructional errors de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
Intent is a non-statutory element of third degree assault and a statutorily defined legal term. State v. Finley, 97 Wn. App. 129, 135, 982 P.2d 681 (1999); RCW 9A.08.010(1)(a); State v. Allen, 101 Wn.2d 355, 361, 678 P.2d 798 (1984). Where intent is an element of the crime, it is error to refuse to give a requested instruction defining `intent'. Allen, 101 Wn.2d at 362.
The State argues the failure to give an instruction defining `intent' is not error because intent was included in the instruction to the jury on assault. Jury instruction No. 7 defines assault as: `an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person.' But under State v. Allen, 101 Wn.2d at 361, the statutory definition of `intent' in RCW 9A.08.010(1)(a) gives it a special legal definition that is not based on common understanding or a dictionary definition. The jury cannot be presumed to have used the proper legal definition of `intent' without an instruction setting forth the proper definition. Allen, 101 Wn.2d at 362.
CP at 49. This instruction is WPIC 35.50. WPIC 35.50 directs that WPIC 10.01, which defines `intent', should be used whenever WPIC 35.50 is given. Washington Pattern Jury Instructions: Criminal 35.50, at 454 (1994 Ed.).
The trial court's failure to instruct the jury on the non-statutory element of intent requires reversal, unless it appears beyond a reasonable doubt that the error did not contribute to the verdict. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002). In deciding whether the error contributed to the verdict and whether it is harmless, the court must examine the record and may consider how the case is argued to the jury. State v. Johnson, 116 Wn. App. 851, 857, 68 P.3d 290, rev. denied, 150 Wn.2d 1021 (2003).
The State argues we should use the harmless error standard that applies to evidentiary errors not of constitutional magnitude. Under that standard, error is harmless if the reviewing court can conclude within reasonable probabilities that it did not materially affect the result. See, e.g., State v. Calegar, 133 Wn.2d 718, 727, 947 P.2d 235 (1997). Without resolving the issue of which harmless error standard applies where a trial court fails to give a requested instruction defining `intent', we apply the constitutional harmless error standard for the purposes of this analysis.
To convict Gonzales of assault in the third degree, the State had the burden to prove Gonzales intended to assault Officer Lanz. Finley, 97 Wn. App. at 135. The jury was also instructed that an assault is an intentional touching or striking.
Officers Lanz and Fox testified that after taking a few steps Gonzales thrust his leg in the air and kicked Officer Lanz's hand Gonzales testified that his foot did not touch Officer Lanz and, if it did, it was an accident. The State's theory at trial was that the officers' testimony established that Gonzales intentionally kicked Officer Lanz and Gonzales' testimony was not credible. Gonzales' theory was that he did not intend to kick Officer Lanz and that it was an accident. Gonzales also argued the officers' description was not credible.
The jury's resolution of the assault in the third degree charge turned on who the jury believed. If they believed the kick was not an accident, which they apparently did, the technical language of the missing `intent' definition instruction was not necessary or relevant to the outcome. The testimony at trial and the closing arguments focused on Gonzales' intent and credibility. The jury rejected Gonzales' version of what happened and convicted him of assault in the third degree. We conclude based on our review of the record that the trial court's failure to give an instruction defining `intent' did not contribute to the jury's verdict and the error was harmless beyond a reasonable doubt.
We affirm.