Opinion
No. 23854-7-III.
Filed: April 13, 2006.
Appeal from Superior Court of Spokane County. Docket No: 04-1-03793-1. Judgment or order under review. Date filed: 02/14/2005. Judge signing: Hon. Robert D Austin.
Counsel for Appellant(s), Susan Marie Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
UNPUBLISHED OPINION
Richard Sullivan was convicted of third degree assault. On appeal, he challenges the sufficiency of the State's evidence to establish the element of intent. In his statement of additional grounds for review, Mr. Sullivan reiterates the assertion that there was insufficient evidence of intent, and additionally appears to argue that his conviction for third degree assault was invalid based upon the unlawfulness of his initial arrest. We affirm.
FACTS
In the early morning hours of September 28, 2004, Mr. Sullivan went over to his brother John's apartment to retrieve some of his belongings from John's car. When the two went out to the car to retrieve the items, John noticed that the taillight on his car was broken and that Mr. Sullivan's hand was bleeding. John accused Mr. Sullivan of breaking the light and Mr. Sullivan responded by asking whether John wanted to fight about it. John testified that Mr. Sullivan appeared very agitated and angry. Based on fear for his own safety, John called the police.
Three uniformed officers responded. Mr. Sullivan was alone in the parking lot of his brother's apartment building when the officers arrived. When the law enforcement officers initially saw him, Mr. Sullivan was yelling and kicked a parked car. Upon being asked to remove one of his hands from his pocket, Mr. Sullivan began walking rapidly toward the officers and talking in an aggressive manner.
Based on the aggressive behavior of Mr. Sullivan, the officers attempted to restrain him in handcuffs. Deputy Jeff Getchell testified that Mr. Sullivan slammed into him and knocked him to the ground while the other officers were trying to restrain Mr. Sullivan. Deputy Getchell testified that once he fell to the ground from the blow, Mr. Sullivan jumped on his back and then reached around the deputy's ribcage and attempted to pull the gun out of his holster. The fall and ensuing struggle left Deputy Getchell with a severely sprained ankle.
Although the other officers did not witness Deputy Getchell's fall to the ground, they testified that Mr. Sullivan pinned the deputy down and was reaching for the deputy's gun. Officer John Walter also testified that Mr. Sullivan became aggressive and violent toward both other officers as well. Mr. Sullivan, testifying in his own defense, admitted that he and his brother were involved in a disagreement. He claimed that he initially failed to obey the commands of the officers because he did not realize they were police. He said he complied as soon as he became aware of who they were. Mr. Sullivan asserted that he cursed at the officers because he had not done anything wrong and he complied with their requests despite the fact that he `wasn't being nice about it.' Report of Proceedings at 144. Regarding the incident with Deputy Getchell, Mr. Sullivan asserted that the deputy tripped and pulled Mr. Sullivan to the ground with him as he fell. He also claimed that any contact that he made with the deputy or with his weapon was inadvertent and the result of Deputy Getchell pulling him to the ground and pinning him down.
The trial court instructed the jury that an assault was, `an intentional touching or striking of another person that is harmful or offensive,' and that a person acts intentionally, `when acting with the objective or purpose to accomplish a result which constitutes a crime.' Clerk's Papers at 37, 39. Mr. Sullivan was acquitted of the charge of third degree malicious mischief, but convicted of the charge of third degree assault. This appeal timely followed.
ANALYSIS Sufficiency of the Evidence
When the sufficiency of the evidence is challenged in a criminal case, this court must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency of the evidence admits the truth of the State's evidence and all inferences that can be reasonably drawn therefrom. Id.
Circumstantial evidence is considered to be equally reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Determinations of credibility are within the sole province of the jury and are not subject to review from this court. State v. Myers, 133 Wn.2d 26 , 38, 941 P.2d 1102 (1997). Additionally, a jury is permitted to infer intent where it is plainly indicated as a matter of logical probability from circumstantial evidence. Id.
Mr. Sullivan was charged with assault in the third degree which provides that a person is guilty of an assault in the third degree if he or she assaults a law enforcement officer who was performing official duties at the time of the assault. RCW 9A.36.031 (1)(g). In order to convict Mr. Sullivan, the State was required to prove beyond a reasonable doubt that he intentionally touched or struck a law enforcement officer in a harmful or offensive manner while the officer was performing his official duties. See, e.g., State v. Kruger, 116 Wn. App. 685, 690, 67 P.3d 1147 (2003). `Official duties,' as the term is used in this statute, `encompass all aspects of a law enforcement officer's good faith performance of job-related duties.' State v. Mierz, 127 Wn.2d 460, 479, 901 P.2d 286 (1995). The three forms of assault recognized in Washington include assault by actual battery; by attempting to inflict bodily injury on another along with the apparent ability to inflict such an injury; and by placing the victim in reasonable apprehension of bodily harm. State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000). Assault by battery is an unlawful touching that was neither legally consented to nor otherwise privileged, and that is harmful or offensive. State v. Garcia, 20 Wn. App. 401, 403, 579 P.2d 1034 (1978).
Intent is an element of assault. See, e.g., State v. Brown, 140 Wn.2d 456, 470, 998 P.2d 321 (2000); Kruger, 116 Wn. App. at 692 . Assault by battery requires intent to commit the physical act that constitutes the assault. Hall, 104 Wn. App. at 62 . The other two forms of assault require the specific intent to inflict harm or to cause reasonable apprehension of bodily harm. Id.
In this case, Mr. Sullivan was charged with third degree assault based on the actual battery of Deputy Getchell. As such, the State was not required to prove the specific intent to inflict harm or to create reasonable apprehension of bodily harm, but was required to prove that Mr. Sullivan intentionally touched Deputy Getchell without his consent and in a manner that was harmful or offensive to the officer.
Sufficient evidence was presented to support a jury finding beyond a reasonable doubt that Mr. Sullivan had the requisite intent to commit third degree assault. Deputy Getchell testified that Mr. Sullivan was behaving in an agitated manner and appeared to intentionally knock the deputy onto the ground. He and the other officers testified that Mr. Sullivan pinned the deputy down and attempted to retrieve Deputy Getchell's gun. Each of these acts was intentional and volitional, and these acts formed the basis for the charge of third degree assault against Mr. Sullivan.
The jury was free to believe Mr. Sullivan's story that he was pulled down to the ground by Deputy Getchell and all contact between them was inadvertent on his part. But, the jury chose to give credence to the officer's version of events. This was within the province of the jury, and this court generally does not question such credibility determinations. See, e.g., State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Therefore, there was sufficient evidence to support the jury's verdict. Mr. Sullivan raises two additional grounds for review. He argues there was insufficient evidence of the essential element of intent. This issue is identical to the one presented in his appeal, and fails for the reasons stated above.
His second ground for review is that the underlying arrest that he was resisting by force was unlawful. Mr. Sullivan appears to be arguing that, because he was resisting an unlawful arrest, the force that he used in doing so was justified.
Unlawfulness of the Arrest
Historically, the unlawfulness of an arrest could justify the use of force by an individual in resisting an arrest. See, e.g., State v. Valentine, 132 Wn.2d 1, 11-15, 935 P.2d 1294 (1997) (discussing the historical roots of the common law right to forcibly resist illegal arrest). However, based on the current protections afforded to those arrested, the modern trend rejects this common law rule. Id. at 15-18. The current law in Washington does not recognize the right to use force to resist even an unlawful arrest when the only harm threatened is the loss of freedom. Id. at 21.
There are limited circumstances under which a person may claim the use of force against a law enforcement officer is justified as self-defense. An arrestee charged under RCW 9A.36.031 (1)(g) must show that there was an imminent threat of serious physical harm in connection with the arrest in order to establish the legitimate use of force in self-defense. Mierz, 127 Wn.2d at 476-77 . It is generally recognized that the threat of serious injury must also be due to the use of excessive force by law enforcement. See State v. Westlund, 13 Wn. App. 460, 469, 536 P.2d 20 (1975).
The threat faced by an individual is judged under an objective standard. Such force can only be used if the arrestee was actually facing the imminent danger of serious injury or death. State v. Bradley, 141 Wn.2d 731, 737, 10 P.3d 358 (2000). Moreover, a person cannot provoke a response that creates the necessity for self-defense and still avail him or herself of the defense. See, e.g., State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999).
Here, Mr. Sullivan provides this court with no proof of any imminent threat of serious bodily harm that would justify his use of force in resisting arrest. Additionally, Mr. Sullivan appears to be the aggressor who provoked the response of the officers because of his aggression and failure to comply with their requests. Mr. Sullivan's entire argument for justification is that the law enforcement officers lacked a lawful basis for his arrest. Even if this court were to assume that Mr. Sullivan's arrest was not lawful, this alone is insufficient to justify his use of force to resist that arrest.
We affirm.
A majority of the panel has determined 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.
KATO, J. and BROWN, J., concur.
Judge Philip J. Thompson is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.