Opinion
No. 34807-1-II.
March 27, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 06-8-00150-3, John F. Nichols, J., entered April 5, 2006.
Counsel for Appellant(s), Anne Mowry Cruser, aw Office of Anne Cruser, Vancouver, WA.
Counsel for Respondent(s), Scott Shigeo Ikata, Clark County Prosecuting Attorney's Offi, Vancouver, WA.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Bridgewater, J.
KH appeals her juvenile conviction for resisting arrest. She argues that (1) the evidence is insufficient to show that the incident occurred "on or about December 4, 2005" because it actually took place on December 3, 2005; and (2) the evidence is insufficient to show that her arrest was lawful. Because December 3, 2005, is "on or about" December 4, 2005, as charged and proved, we hold that KH's arrest was lawful and affirm.
FACTS I. Assault and Resisting Arrest
KH, a juvenile, left her mother's house for a few days. On December 3, 2005, KH came home to collect some belongings and to inform her mother, Patricia Hoffman, that she was moving out. KH was in her bedroom gathering her clothes in preparation for leaving when Hoffman came into the room and tried to prevent KH from leaving by pulling the clothes out of her arms and blocking the window and doorway to KH's bedroom. Hoffman slapped KH in the mouth for swearing at her. Somehow during this confrontation, Hoffman's arm was injured. Eventually KH made her way past her mother and left the house.
The record before us does not show what time KH came home this first time on December 3.
After KH left, Hoffman called 911 to report KH as a runaway. Officer Erick Jennings arrived at Hoffman's residence around 10:00 p.m. Jennings observed that Hoffman had red marks and minor scrapes on her left arm. Hoffman told Jennings that KH had pushed her and caused the injury. Hoffman told another officer, Rodney Trumpf, that KH had "repeatedly bumped into her [Hoffman], and finally pushing her hard enough that she [Hoffman] stumbled over a radio or a stereo and received an abrasion to her arm." Report of Proceedings (RP) (Vol. II) at 90.
Hoffman and Jennings had "a conversation regarding assault[,]" during which Hoffman told Jennings that she wanted her daughter arrested. RP (Vol. II) at 15-16. While Jennings was talking to Hoffman, KH came home and began arguing with Hoffman. Jennings asked Hoffman if she wanted him to arrest KH. Hoffman confirmed that she wanted to follow through on her assault complaint.
Jennings then told KH that she was under arrest. KH replied, "No, no way," and moved away from Jennings toward another part of the house. Jennings grabbed onto KH's right arm and she continued to pull away from him. Jennings then wrapped his left arm around KH's upper body. KH attempted to wriggle free but did not try to kick or hit Jennings. KH then collapsed and Jennings went down to the floor with her. Jennings handcuffed KH's right wrist while she was on the floor and then requested that she stand up; KH complied. Jennings then leaned KH over the couch to place her off balance. KH thrust her upper body back upwards and Jennings pushed her back over the couch and handcuffed KH's left wrist.
KH testified "then I kinda shot back up `cause he was leaning on me, and he, like, his groin was grinding on me, and I thought it was very — like, I did not feel comfortable with that, so I shot back up in, like, shock." RP (Vol. II) at 108.
II. Procedure
The State charged KH in juvenile court with resisting arrest "on or about the 4th day of December, 2005[.]" Clerk's Papers (CP) at 1. The State also charged KH with fourth degree assault against Hoffman.
This charge, however, is not part of this appeal.
At trial, Hoffman testified that (1) she did not tell Officer Jennings that KH had pushed her, and (2) instead told him that she had received the injuries when she tripped over a stereo in KH's room and bumped her arm against the closet. The State asked Hoffman, "You had a conversation with Officer Jennings regarding the fact that you wanted to have your daughter arrested and charged with assault; correct?" Hoffman responded,
No, I wanted her — that's not what I said to him. What I said was I wanted him — her arrested `cause she was on drugs, what could he arrest her for? Assault, you know, since running away was against the law, could he take her — or wasn't against the law, could he take her to Oak Grove, et cetera.
RP (Vol. II) at 16.
In closing, KH argued that the evidence did not support a conviction, but she did not argue that her arrest was unlawful.
The trial court found KH guilty of having resisted a lawful arrest "on or about December 4, 2005" and entered Findings of Fact and Conclusions of Law (FFCL). Supplemental CP at 25. In its oral ruling, the trial court specifically found that the arrest was lawful because it was supported by probable cause. KH appeals.
The trial court found KH not guilty of fourth degree assault. RP at 129.
ANALYSIS I. Date of Offense
KH first argues that the evidence is insufficient to support her conviction for resisting arrest because the trial court found that the incident had occurred "on or about December 4, 2005," Finding of Fact 4 and Conclusion of Law 3, Supplemental CP at 24-25, and the uncontroverted testimony was that it occurred on December 3, 2005. This argument fails.
Where time is not a material element of the charged crime, the language "on or about" is sufficient to admit proof that the act occurred at any time within the statute of limitations, so long as there is no defense of alibi. State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788 (1996), rev. denied, 130 Wn.2d 1013, 928 P.2d 413 (1996). Time is not an element of resisting arrest. See RCW 9A.76.040. KH did not raise alibi as a defense. A plain reading of the verdict, that KH resisted arrest "on or about December 4, 2005," includes the preceding evening because both the actual date of the incident, December 3, 2005, and the information and FFCL's recitation of December 4, 2005, as the incident date are within the one-year statute of limitations. See RCW 9A.04.080(1)(j) (prosecution shall not be commenced after one year for misdemeanor); see also State v. Jefferson, 79 Wn.2d 345, 347, 485 P.2d 77 (1971) (criminal charges may be commenced by filing of information by the prosecutor in superior court). Moreover, the incident began late the preceding evening, December 3, with Jennings arriving around 10:00 p.m. and interviewing Hoffman. He was still investigating when KH came home. Thus it was sometime later, perhaps closer to midnight, that Jennings arrested KH for assaulting Hoffman, which arrest KH then resisted. Assuming that the resisting arrest happened just before midnight on December 3, such timing was clearly "on or about December 4," which by then was only an hour or so away at best.
Supplemental CP at 25 (emphasis added).
The information was filed February 2, 2006. CP at 1.
We hold, therefore, that the evidence is sufficient to show that the offense occurred "on or about" December 4, 2005. Supplemental CP at 25 (emphasis added).
II. Lawfulness of Arrest
A person is guilty of resisting arrest if she intentionally prevents or attempts to prevent peace officer from lawfully arresting her. RCW 9A.76.040. KH argues that because the evidence does not support a finding of probable cause to arrest her, her arrest was unlawful and, therefore, we must vacate her conviction. We disagree.
The lawfulness of the arrest is the only element that KH challenges. During trial and in the facts section of her brief, however, KH focused on the force Jennings used in arresting her; but she does not use these facts to develop a corresponding argument on appeal.
A. Standard of Review
Our review of a police officer's determination of probable cause is a mixed question of fact and law. State v. Vasquez, 109 Wn. App. 310, 318, 34 P.3d 1255 (2001), aff'd by 148 Wn.2d 303, 59 P.3d 648 (2002); City of College Place v. Staudenmaier, 110 Wn. App. 841, 846, 43 P.3d 43 (2002), rev. denied, 147 Wn.2d 1024, 60 P.3d 92 (2002). We first review the trial court's findings of fact for substantial evidence. Vasquez, 109 Wn. App. at 318. "Substantial evidence" is evidence sufficient to persuade a fair-minded rational person of the truth of the declared premise. State v. Stevenson, 128 Wn. App 179, 193, 114 P.3d 699 (2005). We then review the legal question — whether those facts support the legal conclusion of probable cause — de novo. Id.
B. Probable Cause To Arrest
Under RCW 10.31.100(1), a police officer has the authority to arrest a person without a warrant where the police officer has probable cause to believe that the person has committed a misdemeanor or gross misdemeanor involving harm to any person. A police officer has probable cause to arrest a suspect where he has reasonable grounds for suspicion, coupled with evidence of circumstances, to convince a cautious or disinterested person that the suspect is guilty. State v. Bellows, 72 Wn.2d 264, 266, 432 P.2d 654 (1967); State v. Green, 70 Wn.2d 955, 958, 425 P.2d 913 (1967).
A determination of probable cause rests on the totality of the circumstances within the arresting officer's knowledge at the time of the arrest. State v. Fricks, 91 Wn.2d 391, 398, 588 P.2d 1328 (1979). An officer need not have knowledge of evidence sufficient to establish guilt beyond a reasonable doubt in order to have probable cause to arrest a suspect, but the officer must have more than a bare suspicion of criminal activity. Bellows, 72 Wn.2d at 266; State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986), cert. denied, 499 U.S. 979 (1991).
KH challenges the trial court's Finding of Fact 4, which articulates the facts supporting Officer Jennings' determination of probable cause to arrest KH for assaulting her mother as follows:
An "assault" is an intentional touching of another person that is harmful or offensive. 11 Washington Pattern Jury Instructions: Criminal 35.50 (Supp. 2005). The record shows that Officer Jennings had grounds for reasonable suspicion that KH had assaulted her mother based on (1) Hoffman's telling him that KH had pushed her and caused injury to her arm, and (2) the visible scrapes on Hoffman's arm, which supported Hoffman's statement that her daughter had assaulted her.
4. During his investigation regarding the runaway complaint, Officer Jennings heard from Patricia Hoffman that [KH] had shoved her earlier in the day in an upstairs bedroom which caused Patricia Hoffman to fall resulting in an injury to her arm. Officer Jennings observed red markings with minor scrapes to Patricia Hoffman's arm. The officer did not arrest [KH] at the time.
Supplemental CP at 24. There is substantial evidence in the record to support this finding. Jennings testified that (1) when he responded to the 911 call, Hoffman made "a comment about her daughter having pushed her and caused injury to her left arm," RP (Vol.II) at 53 and (2) he observed "red markings and minor scrapings" on Hoffman's arm. The trial court also received in evidence photographs of Hoffman's injury. We hold that based on the facts the trial court found, Jennings had probable cause to arrest KH for assaulting her mother.
KH does not challenge the trial court's finding that "Officer Jennings heard from Patricia Hoffman that she did want to follow through on her assault complaint." Supplemental CP at 24.
C. Claim of Self-Defense
KH also argues that she injured her mother in self-defense and that self-defense vitiates probable cause. This argument also fails.
An arresting police officer does not have a duty to evaluate claims of self-defense before determining whether he has probable cause to arrest the suspect. McBride v. Walla Walla County, 95 Wn. App. 33, 40, 975 P.2d 1029, rev. denied, 138 Wn.2d 1015, 989 P.2d 1137 (1999) (McBride's claim that he struck his son in self-defense did not vitiate probable cause to arrest him because it was a mere assertion, not fact).
Accordingly, we hold that the record provides sufficient evidence to support the trial court's findings of fact and conclusions of law (1) that Officer Jennings had probable cause to arrest KH for assaulting her mother, and (2) that KH is guilty of resisting arrest when Jennings was placing her under arrest for this assault.
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.
We concur:
Houghton, C.J. Bridgewater, J.