State v. Bauer

• Decision Date: 08 March 2013
• Docket Number: No. 43511–0–II.,43511–0–II.
• Citation: 295 P.3d 1227
• Court: Washington Court of Appeals
• Parties: STATE Of Washington, Respondent, v. Douglas L. BAUER, Appellant.

295 P.3d 1227

STATE Of Washington, Respondent,

v.Douglas L. BAUER, Appellant.

No. 43511–0–II.

Court of Appeals of Washington,

Division 2.

March 8, 2013.

Wayne Clark Fricke, Attorney at Law, Tacoma, WA, for Appellant.

Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.

PENOYAR, J.

¶ 1 The State charged Douglas Bauer with third degree assault after his girl friend's nine-year-old son accidentally shot a classmate with Bauer's gun. The trial court denied Bauer's Knapstad¹ motion and vagueness challenge. On discretionary review, he argues that (1) the definition of “cause” in the third degree assault statute requires an “affirmative act”; (2) his actions were not the proximate cause of the assault; (3) he can only be held liable under the complicity statute; and (4) the assault statute is vague as applied to him. Because the State alleges Bauer performed an affirmative act, we reject his first claim. As to his second claim, we conclude “cause” legally means proximate cause. Proximate cause, in turn, involves two elements: actual cause, which requires a factual determination by the jury, and legal cause, a legal issue we address by reviewing legal precedent. On this claim, we conclude the State has alleged sufficient facts for the jury to find both actual cause and the facts supporting legal cause, thus the trial court properly denied Bauer's Knapstad motion. Additionally, the complicity statute does not bar liability here, and the third degree assault statute is not unconstitutionally vague because all of the elements are defined in statutes or case law.

FACTS

¶ 2 On February 22, 2012, nine-year-old TC brought a .45 caliber handgun to school. Near the end of the day, TC reached into his backpack and accidentally pulled the trigger, injuring his classmate, AK–B.

¶ 3 The gun was registered to Bauer, TC's mother's boyfriend. TC does not live with his mother, but he and his siblings would occasionally visit and stay the night. TC took the gun while he was visiting his mother the weekend before the shooting. TC told the police that he took the gun off the dresser in Bauer and his mother's downstairs bedroom while the rest of his family was upstairs. TC and his siblings often sleep in that bedroom, and they explained that they are allowed to access the downstairs portion of the house, including the bedroom, without supervision.

¶ 4 The children also stated that there are multiple guns throughout the house, including a shotgun in the downstairs bedroom, a handgun on the downstairs dresser, a handgun on the computer desk, a handgun under the couch, and a handgun in the glove compartment of the car. None of the guns are in areas forbidden to the children. Bauer and TC's mother both warned the children to never touch the guns because they were loaded. The police searched the house after the shooting and found a loaded handgun next to the computer, a loaded shotgun in the downstairs bedroom, an unloaded handgun in Bauer's car's glove compartment, and ammunition in a dresser drawer. Bauer told the police that he did not know TC had stolen the gun. He did admit that he knew—before TC left his house that weekend—that TC had taken money from the glove compartment of Bauer's vehicle.

¶ 5 TC's guardian stated that he does not allow guns in his home. TC told the police that he had never held or loaded a gun before and that no one had ever taught him how to use a gun.

¶ 6 On March 20, 2012, the State charged Bauer with third degree assault and unlawful possession of a firearm. Bauer filed a Knapstad motion to dismiss both charges. Under Knapstad, the trial court may dismiss a criminal case before trial when it is clear from the facts that the State cannot prove a necessary element of the crime. State v. Sanchez, 166 Wash.App. 304, 307, 271 P.3d 264 (2012). Bauer also challenged the third degree assault statute as unconstitutionally vague. The trial court dismissed Bauer's unlawful possession charge, but it denied his Knapstad motion and vagueness challenge with respect to the assault charge. Bauer filed a petition for discretionary review. The trial is stayed pending our decision.

ANALYSIS

I. Knapstad Motion

¶ 7 Bauer argues that we should reverse the trial court's dismissal of his Knapstad motion because there is no evidence that he assaulted the victim. Specifically, he argues that the assault statute requires him to perform an affirmative act, there is no proximate cause, and he can only be held criminally liable for another's acts under the complicity statute. We hold that the trial court properly denied Bauer's Knapstad motion because “cause” in the third degree assault statute means proximate cause and involves issues of foreseeability that are the province of the jury. Additionally, the complicity statute does not bar Bauer's liability.

¶ 8 To prevail on a Knapstad motion, the defendant must show that there are no material facts in dispute and that the undisputed facts do not establish a prima facie case of guilt. Knapstad, 107 Wash.2d at 356, 729 P.2d 48. A trial court may dismiss a criminal charge under Knapstad if the State's pleadings and evidence fail to establish prima facie proof of all elements of the charged crime. State v. Sullivan, 143 Wash.2d 162, 171 n. 32, 19 P.3d 1012 (2001). The trial court shall view all evidence and make all reasonable inferences in the light most favorable to the State. CrR 8.3(c)(3); State v. Jackson, 82 Wash.App. 594, 608, 918 P.2d 945 (1996). It may not weigh conflicting statements, and it may not base its decision on the statement it finds most credible. CrR 8.3(c)(3). We will uphold the trial court's dismissal of a charge on a Knapstad motion if no rational fact finder could have found the elements of the charged crime beyond a reasonable doubt. State v. O'Meara, 143 Wash.App. 638, 641, 180 P.3d 196 (2008).

¶ 9 Bauer argues that he cannot be convicted of assault because his alleged actions—keeping loaded firearms where children could easily take them—were not sufficiently a “cause” of the shooting. To explain why we disagree, we must explain how causation is treated in criminal cases.

¶ 10 We are all familiar with cause and causation in our daily lives. When a tree blows down in a storm, we expect that wind was the cause. We also recognize that there may be more than one cause of an event. Perhaps the tree blew down because of both the wind and the saturated soil. The law refers to cause of this sort as “actual cause.” See Hartley v. State, 103 Wash.2d 768, 778, 698 P.2d 77 (1985) (referring to actual cause as “cause in fact”).

¶ 11 In society, we are also familiar with attributing moral blame for an event. In assessing blame, we take into account many factors. How direct was the cause? Was the person aware of the risk? Should the person have realized the consequences that resulted? Using a similar line of reasoning, the law describes a cause for which a person may be held liable as “legal cause.” State v. McDonald, 90 Wash.App. 604, 616, 953 P.2d 470 (1998). As in moral assessments of blame, legal cause analysis involves consideration of whether the consequences were apparent and of the actor's state of mind in proceeding in the face of these consequences. “Foreseeability” is the legal catchword for whether the consequences were apparent. The concept of foreseeability is treated similarly in civil and criminal cases. But the state of mind that must be shown to assess blame in criminal cases is higher than in civil cases. In a civil negligence case, the claimant must show merely that the actor was not reasonably careful in view of the apparent risk. Johnson v. Emp't Sec. Dep't, 64 Wash.App. 311, 317, 824 P.2d 505 (1992). But in a criminal negligence case, the State must show that the defendant's actions were at least a gross deviation from what a normally careful person would have done. RCW 9A.08.010(1)(d). Finally, as shorthand for situations where both actual and legal cause are present, the law uses the concept of “proximate cause.” Hartley, 103 Wash.2d at 777, 698 P.2d 77. We now apply this roadmap to this case.

¶ 12 We hold that “cause” as used in the third degree assault statute should be construed as “proximate cause” because it has been so construed in similar criminal statutes. Under a proximate cause analysis, the State has alleged facts to support a jury's finding of both actual and legal cause. Additionally, Bauer's arguments are unpersuasive because he performed an affirmative act, his proposed definition of cause comes from distinguishable case law, and the presence of supervening acts is a jury question. Therefore, we affirm the trial court's denial of Bauer's Knapstad motion.

A. Statutory Interpretation

¶ 13 The State charged Bauer with third degree assault. The third degree assault statute requires the State to prove that Bauer “[w]ith criminal negligence, cause[d] bodily harm to another person by means of a weapon.” RCW 9A.36.031(1)(d). We must interpret the meaning of “cause” in this statute.

¶ 14 The legislature has provided guidance for construing its criminal statutes. RCW 9A.04.020. The general purposes of the criminal code are “[t]o forbid and prevent conduct that inflicts or threatens substantial harm to individual or public interests;” “[t]o safeguard conduct that is without culpability from condemnation as criminal;” and “[t]o give fair warning of the nature of the conduct declared to constitute an offense.” RCW 9A.04.020(1)(a)-(c). With these goals in mind, “[t]he provisions of [the criminal code] shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title.” RCW 9A.04.020(2).²

¶ 15 As noted, the third degree assault statute requires the State to prove that Bauer, “[w]ith criminal negligence, cause[d] bodily harm to another person by means of a weapon.” RCW...