Opinion
No. 37355-6-II.
April 7, 2009.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 07-1-00336-6, F. Mark McCauley, J., entered February 4, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Armstrong, J.
Elizabeth Marll appeals her conviction for second degree assault, arguing that the trial court erred in instructing the jury that it did not have to find that she intended to strike the victim. A commissioner of this court initially considered Marll's appeal as a motion on the merits under RAP 18.14 and then referred it to a panel of judges. Concluding that the trial court did not err in instructing the jury, we affirm Marll's conviction.
FACTS
On April 27, 2007, Marll moved out of her apartment because of concerns that her children had been exposed to carbon monoxide. On May 11, 2007, Marll went to the apartment complex's office to talk to manager Wanda Tveten about continuing bills from the apartment company. When Tveten would not refund Marll's security deposit, the meeting escalated to a verbal confrontation. When Tveten attempted to call the police, Marll approached the counter. Marll picked up a wood and metal clipboard and swung it at Tveten. Tveten raised her arm to prevent the clipboard from striking her face and the clipboard struck her wrist and the back of her head. Tveten suffered a laceration on her wrist and a fractured wrist.
The State charged Marll with second degree assault. At trial, Marll testified that she "was just trying to scare [Tveten] but not trying to hit her with [the clipboard]. . . . I just wanted to scare her. I didn't mean to hurt her, but I did, but I didn't mean to." Report of Proceedings at 106. Over Marll's objection, the trial court instructed the jury that
[a]n assault is an intentional touching or striking of another person 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 done with the intent to create in another apprehension and fear 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 intend to inflict bodily injury.
Clerk's Papers at 9.
The jury found Marll guilty of second degree assault. She appeals.
ANALYSIS
Marll assigns error to the second paragraph of jury instruction 5. We review the adequacy of jury instructions de novo as a question of law. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and, when read as a whole, properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 908-09, 976 P.2d 624 (1999).
A person is guilty of second degree assault if he or she intentionally assaults another and thereby recklessly inflicts substantial bodily harm. RCW 9A.36.021(1)(a).
A person acts intentionally "when he [or she] acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a). A person acts recklessly "when he [or she] knows of and disregards a substantial risk that a wrongful act may occur and his [or her] disregard of such substantial risk is a gross deviation from conduct that a reasonable [person] would exercise in the same situation." RCW 9A.08.010(1)(c). A person may commit second degree assault in three ways: "'(1) an attempt, with unlawful force, to inflict bodily injury upon another [attempted battery]; (2) an unlawful touching with criminal intent [actual battery]; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm [common law assault].'" State v. Taylor, 90 Wn. App. 312, 318, 950 P.2d 526 (1998) (alterations in original) (quoting State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994)).
Marll argues that the trial court erred in giving the second paragraph of jury instruction 5 because she did not intend to strike Tveten. Marll's argument fails. Second degree assault does not require proof that the defendant specifically intended to inflict substantial bodily harm. State v. Stevens, 158 Wn.2d 304, 314, 143 P.3d 817 (2006) (citing State v. Daniels, 87 Wn. App. 149, 155, 940 P.2d 690 (1997), review denied, 133 Wn.2d 1031 (1998)). See also State v. Esters, 84 Wn. App. 180, 185, 927 P.2d 1140 (1996) (second degree assault does not require specific intent to cause the injury that resulted from the defendant's intentional act), review denied, 131 Wn.2d 1024 (1997). Rather, second degree assault requires proof that the defendant intended to do the physical act constituting assault. Stevens, 158 Wn.2d at 314 (quoting State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000), review denied, 143 Wn.2d 1023 (2001)). Therefore, the State had to prove that Marll intended to swing the clipboard and recklessly came into contact with Tveten. The State did not have to prove that she intended to strike Tveten. Marll admitted that she intended to swing the clipboard. A reasonable person would appreciate the risk that if he or she swung an object at another, it might come into contact with that person. Thus, there is evidence that Marll intentionally swung the clipboard and recklessly inflicted substantial bodily harm, thereby committing second degree assault. There is also evidence, from Marll's admission, that she intended to scare Tveten when she swung the clipboard. Thus, Marll put Tveten in apprehension of harm and thereby committed second degree assault.
Jury instruction 5 does not misstate the law. The evidence supported giving the second paragraph of the instruction. The trial court did not err. We affirm Marll's judgment and sentence.
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.
ARMSTRONG, J. and VAN DEREN, C.J., concur