State v. Bauer

• Citation: 180 Wash.2d 929,329 P.3d 67
• Decision Date: 17 July 2014
• Docket Number: No. 88559–1.,88559–1.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Douglas L. BAUER, Petitioner.

180 Wash.2d 929

329 P.3d 67

STATE of Washington, Respondent,

v.Douglas L. BAUER, Petitioner.

No. 88559–1.

Supreme Court of Washington, En Banc.

July 17, 2014.

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

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

GORDON McCLOUD, J.

¶ 1 TC, a child, took a loaded gun from the home where his mother lived with her boyfriend, Douglas Bauer. The gun belonged to Bauer. ¹ TC brought that loaded gun to school in his backpack a few days after he stole it. The gun discharged as TC was rummaging in his pack at the end of the day. The bullet struck TC's classmate, and it seriously injured her.

¶ 2 The State charged Bauer with assault in the third degree, alleging that he, “[w]ith criminal negligence, cause[d] bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.” RCW 9A.36.031(1)(d). Bauer moved to dismiss pretrial under State v. Knapstad,² arguing that the facts did not support a third degree assault charge as a matter of law. The State argued that the statutory phrase “causes bodily harm” reached Bauer's conduct as a primary “cause” of the harm to TC's classmate. The trial court agreed with the State and denied the motion to dismiss but then certified the matter to the Court of Appeals. In a split decision, the Court of Appeals upheld the trial court's ruling. State v. Bauer, 174 Wash.App. 59, 295 P.3d 1227 (2013). We now reverse the Court of Appeals.

FACTS

¶ 3 On February 22, 2012, at about 1:30 p.m., the children at Armin Jahr Elementary School in Bremerton, Washington, were getting ready to go home for the day. As the teacher prepared to lead the children from the classroom to the school bus, she heard a loud pop. Looking around, the teacher saw one child bent over with blood on her hands. She summoned other staff, and before long they realized that the bloodied child had been shot.

¶ 4 A staff member noticed a backpack on TC's desk. It contained a gun. The backpack was identified as TC's backpack, and after the police arrived, TC was transported to a Youth Services Center for booking. Police later concluded that the gun, a Heckler & Koch .45 caliber pistol, had discharged “while still inside the backpack.” Clerk's Papers (CP) at 86.

¶ 5 Police interviewed TC several times. TC explained that he had been visiting his mother and her boyfriend Bauer in their home for the past three years, since he was six years old. He asserted that ever since he first visited, he had seen multiple guns accessible throughout the house. TC said that his mother and Bauer told him the guns were all loaded. According to TC, the weekend before the shooting, as he was leaving Bauer's house, he saw a gun on a bedroom dresser and “swiped the gun into his backpack.” CP at 116. ³ TC explained that he took the gun because some classmates had “told him they were going to have teenagers come and beat him up.” Id. He asserted that the shooting was accidental. TC pleaded guilty in juvenile court to reckless endangerment and was sentenced to probation and counseling.

¶ 6 Police also interviewed TC's mother and Bauer, along with TC's siblings. Their statements corroborate TC's statements that there were multiple unsecured and loaded guns around the house.

¶ 7 The State charged Bauer with assault in the third degree under the deadly weapon prong. That portion of the assault statute states that a person is guilty of third degree assault who, “[w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.” RCW 9A.36.031(1)(d). The State also charged Bauer with TC's unlawful possession of a firearm, relying on the complicity statute, which states in relevant part that a person is liable for the criminal conduct of another if, “[a]cting with the kind of culpability that is sufficient for the commission of the crime, he or she causes an innocent or irresponsible person to engage in such conduct.” RCW 9A.08.020(2)(a). Bauer moved to dismiss both charges under Knapstad.⁴ He also moved to dismiss the charges on vagueness grounds.

¶ 8 The trial court granted the motion to dismiss the unlawful possession of a firearm charge, and the State did not appeal that decision. CP at 139. The trial court also denied the motions to dismiss the third degree assault charge. Id. However, the trial judge recognized that this ruling “involves a controlling question of law as to which there is substantial ground for a difference of opinion” and certified the questions to the Court of Appeals. CP at 142.

¶ 9 The Court of Appeals affirmed in a split decision. Bauer, 174 Wash.App. 59, 295 P.3d 1227. Two judges concluded that the word “causes” in the third degree assault statute was sufficiently flexible to present a jury question on whether Bauer “caused” the injury to TC's classmate by leaving a loaded gun where TC could access it. Id. at 69–70, 295 P.3d 1227. The two-member majority also held that the facts of the case did not preclude the State from seeking to convict Bauer under the complicity statute, RCW 9A.08.020. Id. at 77, 295 P.3d 1227. The majority rejected Bauer's vagueness argument. Id. at 80–81, 295 P.3d 1227.

¶ 10 Bauer sought discretionary review by this court, and we granted it. State v. Bauer, 177 Wash.2d 1019, 304 P.3d 115 (2013). We hold that the third degree assault statute does not apply to Bauer's conduct. We further hold that the complicity statute does not expand the assault statute's reach to Bauer's conduct. Because we resolve the case on those grounds, we do not reach Bauer's vagueness challenge.

ANALYSIS

A. Knapstad Motion

i. Standard of Review

¶ 11 Under Knapstad, a defendant may move to dismiss a criminal charge on the ground that there are no disputed material facts and the undisputed facts do not establish a prima facie case of guilt as a matter of law. Knapstad, 107 Wash.2d at 356–57, 729 P.2d 48. We review a trial court's decision on a Knapstad motion de novo. See State v. Montano, 169 Wash.2d 872, 876, 239 P.3d 360 (2010) (citing State v. Conte, 159 Wash.2d 797, 803, 154 P.3d 194 (2007)).

ii. Causation in Criminal Law Is Different from Causation in Tort

¶ 12 In this case, resolution of the Knapstad motion turns on statutory interpretation—primarily, the meaning of the word “causes” in the third degree assault statute. RCW 9A.36.031(1)(d). The legislature has provided the following rule for interpreting such criminal statutes: “[t]he provisions of the common law relating to the commission of crime and the punishment thereof, insofar as not inconsistent with the Constitution and statutes of this state, shall supplement all penal statutes of this state....” RCW 9A.04.060. The assault statute does not define the term “cause.” We therefore turn to “the common law relating to the commission of crime and the punishment thereof” to supplement that provision. Id.

¶ 13 Our court has ruled that “[b]efore criminal liability is imposed, the conduct of the defendant must be both (1) the actual cause, and (2) the ‘legal’ or ‘proximate’ cause of the result.” State v. Rivas, 126 Wash.2d 443, 453, 896 P.2d 57 (1995) (quoting 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.12, at 392 (1986)).⁵

¶ 14 “ ‘Cause in fact refers to the “but for” consequences of an act-the physical connection between an act and an injury.’ ” State v. Dennison, 115 Wash.2d 609, 624, 801 P.2d 193 (1990) (quoting Hartley v. State, 103 Wash.2d 768, 778, 698 P.2d 77 (1985)). “Legal causation, on the other hand,”

involves a determination of whether liability should attach as a matter of law given the existence of cause in fact. If the factual elements of the tort are proved, determination of legal liability will be dependent on “mixed considerations of logic, common sense, justice, policy, and precedent.”

Hartley, 103 Wash.2d at 779, 698 P.2d 77 (quoting King v. City of Seattle, 84 Wash.2d 239, 250, 525 P.2d 228 (1974) (citing 1 Thomas Atkins Street, Foundations of Legal Liability 100, 110 (1906))).⁶

¶ 15 This court, in agreement with commentators and other jurisdictions, has observed that “as to cause in fact, tort and criminal situations are exactly alike.” Dennison, 115 Wash.2d at 624 n. 15, 801 P.2d 193 (citing LaFave & Scott, supra, at 397 n. 31).

¶ 16 Legal causation, however, is different. Commentators and courts recognize that criminal law and tort law serve different purposes and therefore have different principles of legal causation. “[W]ith crimes, where the consequences of a determination of guilt are more drastic ... it is arguable that a closer relationship between the result achieved and that intended or hazarded should be required.” 1 Wayne R. LaFave, Substantive Criminal Law § 6.4(c), at 472 (2d ed.2003). “The wider doctrines of causation currently applied in tort law should not be extended to criminal law.... [I]n criminal law, ... it is not normally enough merely to prove that [the] accused occasioned the harm; he must have ‘caused’ it in the strict sense.” H.L.A. Hart & Tony Honore, Causation in the Law 350–51 (2d ed.1985); see alsoJerome Hall, General Principles of Criminal Law 254–55 (2d ed.1960) (noting that causation in tort may be much broader than causation in criminal law).⁷

¶ 17 Most states that have addressed the question agree that legal causation is defined more narrowly in criminal law than it is in tort law. The Pennsylvania Supreme Court explained, in the context of felony murder:

A closer causal connection between the felony and the killing than the proximate-cause[ ⁸] theory normally applicable to tort cases should be required because of the extreme penalty attaching to a conviction for felony murder and the difference between the underlying rationales of criminal and tort law. The former is intended to impose punishment in appropriate cases while the latter is primarily concerned with...