Opinion
No. 54124-2-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-09178-1. Judgment or order under review. Date filed: 04/16/2004. Judge signing: Hon. Carol A. Schapira.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Lo Sykes — Informational only, Doc # 942384, Airway Heights Corr. Center, P.O.BOX 1899, Airway Heights, WA 99001-1899.
Counsel for Respondent(s), Cristy J. Craig, King County Prosecuting Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Lovell Sykes appeals his conviction of third degree assault arguing that he was denied a unanimous jury verdict because the jury was instructed on both intentional touching and attempted battery forms of assault with no unanimity instruction, the prosecutor elected in closing argument to focus upon Sykes striking the police officer's hands, and there is no evidence to support an attempted battery form of assault. Because there is sufficient evidence to support either form of assault there is no lack of unanimity. We affirm.
Officers Chan and Reyes pulled over Sykes for speeding. Sykes gave a false name but later began spelling out his true name. The officers had him step out of the car and put his hands on the car. While Officer Chan was patting him down, Sykes pushed away from the car forcing Officer Chan back into the street. When Sykes began to run, Officer Chan grabbed hold of Sykes' shirt. Sykes began hitting Chan's hands with his hands and fists. Officer Chan grabbed one of Sykes' legs and Sykes kicked Chan in the head with his other leg. Officer Reyes saw Sykes hit Chan's hands and saw him raising his arms. Officer Reyes thought Sykes was going to hit Officer Chan in the head or sling him to the ground, so he joined in the fight, ultimately restraining Sykes.
Sykes was charged with third degree assault. The `to convict' jury instruction included the element that Sykes `assaulted' Chan. Another instruction defined assault including a paragraph on intentional touching (`an intentional touching or striking of another that is harmful or offensive') and a paragraph on attempted battery (`an act done with the intent to inflict bodily injury tending but failing to accomplish it') forms of assault. In his closing argument, the prosecutor discussed the element that Sykes assaulted Chan, noting that both Officer Chan and Officer Reyes testified that Sykes hit Chan's hands: `The defendant hit Officer Chan. That — is it touching? Certainly. Is it harmful and offensive? Would a reasonable person find being hit harmful and offensive? That's up to you to decide. The ball's in your court.' During their deliberations the jury inquired whether they needed to find both paragraphs of the alternative definitions of assault. The court responded that either paragraph was adequate and directed the jury to read all of the instructions. The jury found Sykes guilty of third degree assault.
The premise of Sykes' argument is that he was charged with two alternative means of committing assault, and that the prosecutor elected in closing to rely solely upon the single act of his hitting Officer Chan's hands, because the prosecutor `told the jury it need not resolve whether Officer Chan was assaulted by any means other than by Mr. Sykes hitting the officer's hands.' Because there is no evidence of the alternative means of an attempted battery related to Sykes hitting at the hands of Officer Chan, Sykes argues he has been denied a unanimous jury verdict. But Sykes blends together two different doctrines of unanimity and provides no compelling authority for this proposition.
If multiple acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, the State must elect the particular criminal act upon which it will rely for conviction, or the trial court must instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt. The multiple acts unanimity doctrine has no application here, where one continuous physical altercation is the basis for charge of a single act of assault.
State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).
Jury unanimity is not required when the defendant's acts form one continuing course of conduct. State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988).
Sykes' unanimity argument turns on alternative means analysis. In an alternative means case, "the evidence includes only one event, even though it discloses alternative means by which the defendant may have participated in that event." Jury unanimity as to the means used to commit the crime is satisfied if there is substantial evidence to support each of the alternative means charged.
State v. Hanson, 59 Wn. App. 651, 657 n. 7, 800 P.2d 1124 (1990); State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988).
State v. Arndt, 87 Wn.2d 374, 377, 553 P.2d 1328 (1976).
Even assuming that the trial court created an alternative means case by giving two definitions of assault, there is sufficient evidence of both the intentional touching and attempted battery forms of assault. It is undisputed that the two police officers provided sufficient evidence of an intentional touching form of assault. They both testified that Sykes hit Officer Chan's hands with his hands and fist. Attempted battery is an act, with unlawful force, done with intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied with the apparent present ability to inflict the bodily injury if not prevented. Raising a hand to another with intent to cause harm with an apparent purpose to strike is sufficient; there is no requirement to demonstrate the extent of harm intended:
State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000).
We are committed to the rule that an assault is an attempt, with unlawful force, to inflict bodily injury upon another, Within this definition, one would be guilty of assault, if he raised a hand in anger with an apparent purpose to strike'
State v. Garcia, 20 Wn. App. 401, 403, 579 P.2d 1034 (1978) quoting State v. Rush, 14 Wash. 2d 138, 139, 127 P.2d 411 (1942). See State v. R.H.S., 94 Wn. App. 844, 847, 974 P.2d 1253 (1999) (`Without question, any reasonable person knows that punching someone in the face could result in a broken jaw, nose, or teeth, each of which would constitute substantial bodily harm. Accordingly, the evidence was sufficient to support the court's verdict.')
A reasonable jury could have been persuaded by the evidence in the record that Sykes' violent thrashing with the officers while they attempted to subdue him, including raising his arms in preparation to strike Officer Chan in the head or to fling him to the ground included both intentional touching and attempted battery forms of assault.
Sykes argues that the prosecutor's closing argument was an election precluding the jury from considering any evidence other than Sykes striking at the hands of Officer Chan. But the prosecutor merely focused upon the evidence that Sykes struck at Officer's Chan's hand. Sykes offers no persuasive authority that the closing argument precluded the jury from considering all aspects of the continuous physical altercation with the police officers.
We affirm.
BAKER, ELLINGTON, and BECKER, JJ.