Opinion
No. 37287-8-II.
January 6, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-01891-3, Roger A. Bennett, J., entered January 7, 2008.
Affirmed by unpublished opinion per Houghton, J., concurred in by Armstrong and Hunt, JJ.
UNPUBLISHED OPINION
A jury convicted Alvin Penner of two counts of third degree assault. He appeals, arguing that his conviction is not supported by substantial evidence and the trial court erred in denying his proposed jury instruction on self-defense. The evidence was sufficient and the trial court did not err. We affirm.
A commissioner of this court referred Penner's appeal to a panel of judges.
FACTS
On October 24, 2007, Debbie Olson, a loss prevention employee at a Walmart in Vancouver, Washington, saw Penner and two other individuals stop in an area of the store frequented by shoplifters. She watched a woman place grocery items into a Walmart bag held by Penner and another man. The other man left the store without paying for the items. The other man re-entered the store and met up with Penner and their female companion. She put more food items in Walmart bags that Penner and the other man were holding. Olson contacted Jon Dunaway and Josh Axtell, asset protection personnel, and informed them of the situation. Olson, Dunaway, and Axtell observed Penner exit the store with the bags of groceries without paying for them.
Outside the store, Olson confronted Penner, identified herself, Axtell, and Dunaway as Walmart security, and stated that she needed to talk to him "about some unpaid for merchandise." I Report of Proceedings (RP) at 38. Olson asked Penner to return to the store but he refused. Penner stated that he had paid for the items and that his girl friend had the receipt. Olson repeated her request that Penner return to the store and he again refused. Penner asked Olson what would happen if he walked away. Olson informed him that she would have to call the police. At some point during Olson's encounter with Penner, she touched his arm and "tried to redirect him into the store" but Penner did not move. I RP at 50. When Penner repeatedly refused to return to the store, Olson requested help from Walmart managers and associates to convince Penner to return to the store. Todd Skimhorn, assistant manager, responded.
Skimhorn approached Penner with his Walmart name badge clearly visible. He asked Penner to come inside "so we can get this taken care of." I RP at 127-28. When Penner refused, Skimhorn grabbed Penner's arm and repeated his request that Penner return to the store. Penner began to struggle. Skimhorn then wrapped his arms around Penner "about chest level and interlocked [his] right hand over [his] left hand." I RP 130. Axtell grabbed one of Penner's arms and Dunaway pushed Penner from behind to assist Skimhorn in escorting Penner back into the store. In attempt to break Skimhorn's grip, Penner dug his fingernails into Skimhorn's hands and tore the skin off one of Skimhorn's fingers.
Once Penner was inside, he was told he needed to go into an office. Penner again refused. Olson testified that Skimhorn then put his arm around Penner's waist and began to "physically guid[e] him into the office" with Dunaway and Axtell's assistance. I RP at 56. When they got Penner to the office door, Penner dropped the merchandise bags, placed one foot against boxes outside the door, and grabbed the door jamb with his hands to keep from going inside. Axtell attempted to put handcuffs on Penner but missed. Penner grabbed one end of the handcuffs and he and Axtell struggled for the handcuffs. During the struggle, Axtell's thumbnail was torn.
There is conflicting testimony. Olson testified that Penner walked back into the store after Skimhorn's request but began to fight after being told to go to an office. Skimhorn, in contrast, testified that he grabbed Penner while outside and escorted him into the building and to the office.
Eventually, Penner calmed down and went into the office. He never produced a receipt showing that he paid for the items. A tally of the items in the bags Penner carried showed that he attempted to steal $22.38 worth of merchandise.
The State charged Penner with two counts of third degree assault for Skimhorn's and Axtell's injuries and one count of second degree robbery. The Walmart employees testified as described above. While discussing jury instructions, the State objected to Penner's proposed instruction on self-defense, arguing that Penner did not have a right to resist his detention through the use of force. Finding that Penner failed to produce any evidence that he reasonably believed he was about to be injured or that the use of force was necessary, the trial court refused to give the proposed instruction. The jury convicted Penner of both counts of third degree assault but found him not guilty of second degree robbery. Penner appeals.
ANALYSIS
Penner argues first that his convictions are not supported by substantial evidence. Sufficient evidence exists if any rational fact finder could find that the State had proved the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). An appellant claiming insufficiency of the evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We view both circumstantial and direct evidence as equally reliable and defer to the fact finder on issues of conflicting testimony, witness credibility, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
A person is guilty of third degree assault if "[w]ith intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself or another person, [he] assaults another." RCW 9A.36.031(1)(a). Penner argues that there is insufficient evidence to support a finding that he "acted with the intent to prevent his apprehension or detention." Appellant's Br. at 11. He argues that while he resisted the Walmart employees' efforts to bring him into the office, he did not attempt to prevent his detention, flee, or harm anyone.
Substantial evidence supports the jury's verdict. Penner refused to return to the store despite several requests and asked Olson what would happen if he walked away. When Walmart staff attempted to bring him back into the store, he struggled and dug his fingernails into Skimhorn's hands in an effort to get free. When they attempted to get him to go into the loss prevention office, he struggled and tore Axtell's thumbnail. While he disputes his motive for struggling, a jury could reasonably infer from the witnesses' testimony that Penner injured Skimhorn and Axtell while attempting to resist detention.
Next, Penner argues that the trial court erred in denying his proposed jury instruction on self-defense. He concedes that the Walmart employees had reasonable grounds to detain him on suspicion of shoplifting but argues that the employees acted unreasonably by placing him in a "bear hug from behind" and "attempting to place handcuffs on [him]." Appellant's Br. at 23. Even if this were true, the trial court did not err in denying his proposed jury instruction because it misstated the law. A defendant is entitled to instructions on his theory of the case only if he supplies instructions which accurately state the law. State v. Goree, 36 Wn. App. 205, 208, 673 P.2d 194 (1983). A court does not have to give an instruction that is erroneous in any respect. State v. Ellis, 48 Wn. App. 333, 335, 738 P.2d 1085 (1987). Store personnel may detain a suspected shoplifter if they have reasonable grounds to believe the person is committing or attempting to commit theft or shoplifting. State v. Miller, 103 Wn.2d 792, 795, 698 P.2d 554 (1985). To argue self-defense in this situation, the defendant must demonstrate that he was resisting an unlawful arrest. State v. Jones, 63 Wn. App. 703, 706, 821 P.2d 543 (1992).
In Jones, the State charged the defendant with third degree assault after he assaulted store personnel who tried to detain him on suspicion of shoplifting. 63 Wn. App. at 704-05. The trial court refused to give Jones a self-defense instruction that stated, "A citizen has the right to resist an unlawful arrest. . . . A person may not be convicted of third degree assault for resisting an unlawful arrest." Jones, 63 Wn. App. at 706. We upheld the trial court's decision because the proposed instruction was incomplete in that it did "not point out that the right to resist unlawful arrest is qualified." Jones, 63 Wn. App. at 707. We held that the amount of force used to resist "`must be reasonable and proportioned to the injury' about to be received." Jones, 63 Wn. App. at 707 (quoting State v. Rousseau, 40 Wn.2d 92, 95, 241 P.2d 447 (1952)).
Similarly, Penner's proposed instruction is incomplete. His proposed instruction stated, "The use of force upon another person is not unlawful when ever [sic] used by a party about to be injured in preventing an offense against his or her person if the force is not more than necessary." Clerk's Papers at 21. Just as in Jones, Penner's proposed instruction does not point out that the right to resist unlawful arrest is qualified. It also does not explain that force may not be used to resist an unlawful arrest that threatens only a loss of liberty. The trial court did not err in denying his request for this instruction.
Penner relies on State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977), and State v. Adams, 31 Wn. App. 393, 641 P.2d 1207 (1982), to support his claim that he was entitled to a self-defense instruction due to particular vulnerability. But these cases do not address the use of self-defense when resisting detention by a shopkeeper. Wanrow discusses the use of self-defense when the defendant, a 5'4 tall woman with a broken leg, shot a large, visibly intoxicated man suspected of molesting her daughter and attempting to molest her son, who would not leave her residence when asked. 88 Wn.2d at 225-26, 233-41. Adams discusses the propriety of giving a self-defense instruction when the defendant did not have a telephone, recognized the burglars as having previously burglarized his home and shot at him, saw the burglars breaking into a neighbor's trailer, and feared for his life. 88 Wn.2d at 397-98. Penner, a 6'2 to 6'3 man, who was not defending his own home or person or the home or person of another but instead was shoplifting, lacks similar vulnerabilities.
Substantial evidence supports Penner's convictions for third degree assault. The trial court did not err in refusing to give his self-defense instruction because his proposed instruction misstated the law.
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.
Armstrong, J., Hunt, J., concur.