State v. Birge
| Decision Date | 05 January 2021 |
| Docket Number | No. 53584-0-II (consolidated with) No. 53594-7-II,53584-0-II (consolidated with) No. 53594-7-II |
| Citation | 16 Wash.App.2d 16,478 P.3d 1144 |
| Parties | STATE of Washington, Appellant, v. Damion Ray BIRGE, Respondent. State of Washington, Appellant, v. Jesse L. Jahner, Respondent. |
| Court | Washington Court of Appeals |
Joseph James Anthony Jackson, Thurston County Prosecutor's Office, 2000 Lakeridge Dr. Sw Bldg. 2, Olympia, WA, 98502-6045, for Appellant.
J. C. Becker, Attorney at Law, P.O. Box 13253, Mill Creek, WA, 98082-1253, David Allen, Allen Hansen Maybrown & Offenbecher, PS, Allen Hansen & Maybrown PS, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, for Respondent.
PUBLISHED OPINION
Glasgow, J. ¶1 RC left KJC, her nine-year-old grandchild who had severe psychiatric issues and cognitive disabilities, with two social workers while she ran a brief errand. KJC then locked the social workers out of the house, broke windows, and grabbed kitchen knives. One of the social workers called 911 out of concern for KJC's safety. Before law enforcement arrived, RC returned. She disarmed and calmed KJC.
¶2 Two police officers, Damion Ray Birge and Jesse L. Jahner, then arrived and encouraged RC to discipline KJC by striking him with a belt. RC initially resisted but eventually struck KJC more than 20 times with a belt while one of the officers allegedly held the child down. KJC was then transported to the hospital due to cuts on his hand and for psychiatric treatment. The next day, medical staff discovered bruises on KJC's back, sides, and arms, and they notified police.
¶3 After the Tacoma Police Department and the Washington State Patrol (WSP) investigated, the State charged Birge and Jahner with third degree assault of a child both as principals and as accomplices. The State also charged them with official misconduct. Birge and Jahner moved to dismiss the charges under CrR 8.3(c) and State v. Knapstad.1 The trial court granted their motions and dismissed both charges.
¶4 The State appeals, arguing that the evidence, viewed in the light most favorable to the State, was sufficient to proceed to a jury trial on third degree assault and official misconduct. The defendants counter that the trial court properly dismissed the third degree child assault charges because, as a matter of law, the State could not prove that they had the requisite mental state. Defendants also argue that the evidence was insufficient to proceed to trial on the official misconduct charge and, alternatively, the official misconduct statute is unconstitutionally vague and overbroad.
¶5 Viewing the evidence in the light most favorable to the State, the State has presented sufficient evidence to establish a prima facie case of guilt of both third degree assault and official misconduct, even if some facts are in dispute. Moreover, the official misconduct statute is not unconstitutionally vague or overbroad. We reverse the trial court's dismissal of both charges and remand for proceedings consistent with this opinion.
FACTS
¶6 In 2017, nine-year-old KJC lived with his maternal grandmother, RC, who had adopted him. KJC was cognitively disabled and suffered from oppositional defiance disorder, posttraumatic stress disorder, fetal alcohol spectrum disorder, attention deficit hyperactivity disorder, and psychosis. KJC had been hospitalized five times in the previous three months due to his behavioral issues, which included threats of violence toward his grandmother. KJC regularly received counseling from Catholic Community Services caseworker Meluleki Ncube. Catholic Community Services staff also helped RC with caretaking.
¶7 Ncube and another caseworker, Michelle Straling, were at RC's house. RC left to pick up medications from a pharmacy across the street while Ncube and Straling stayed with KJC. While RC was gone, KJC locked Ncube and Straling out of the house. Ncube attempted unsuccessfully to get KJC to unlock the door. KJC then started screaming and yelling, breaking windows, and throwing dishes. He was holding at least one knife. Ncube called 911 because he was concerned for KJC's safety.
¶8 RC returned before law enforcement arrived. She unlocked the door and convinced KJC to drop the knives. KJC was sitting calmly on the couch when two Tacoma Police Department officers, Birge and Jahner, arrived. Birge and Jahner had previously responded to an incident involving KJC and had helped transport him to the hospital for mental health treatment.
¶9 Between the officers’ arrival and when they transported KJC to the hospital, RC hit KJC on the buttocks, back, and arms with a looped over belt at least 20 times in the presence of Ncube and Straling. The record contains conflicting descriptions about who instigated the spanking with the belt and how it occurred.
¶10 According to Jahner's initial report, RC told Jahner and Birge as soon as they arrived that KJC had hurt her before and KJC had been involuntarily committed several times. Jahner stated KJC began to act "defiant," kicking and punching RC, throwing a toy at her head, and calling her a "f***ing b**** that will die." Clerk's Papers at 2. Jahner said that RC told the officers she feared for her life. Jahner explained that KJC was transported to Mary Bridge Children's Hospital to treat the cuts on his hands. Jahner's initial police report never mentioned that RC struck KJC with a belt, nor did it indicate that any discussion of physical discipline occurred.
¶11 KJC stayed overnight at the hospital. The next morning, medical staff noticed that KJC had "marks [on his] back, sides, and arms." Suppl. Clerk's Papers (SCP) at 291. When a nurse asked KJC what happened, he said that his grandmother hit him with a belt. KJC reported mild pain on his low back when touched. An emergency room doctor examined KJC, observing and photographing "multiple linear marks consistent with belt marks to his bilateral arms, sides, and back." SCP at 297.
¶12 A hospital social worker, Cobi Silver, separately contacted Ncube and RC. Ncube told Silver that "the officers told the grandmother to get a belt and discipline [KJC]." SCP at 293. Ncube reported that one of the officers struck the table with the belt to demonstrate how to hit KJC and instructed RC to " ‘do it now to [KJC].’ " Id. Similarly, RC told Silver that the officers told her to get a belt when they arrived, which she did because she initially "thought they ‘didn't want to use handcuffs on a kid.’ " Id. RC reported that Birge and Jahner "told her that they [would] not help her or call [emergency medical services] unless she beat[ ] [KJC] with the belt." Id. RC said that she had promised KJC she would never hit him, but she felt pressured to do so by the officers.
¶13 Silver, the hospital social worker, contacted the Tacoma Police Department to report the bruising on KJC's body. Officer James Pincham saw the bruises and noted that KJC had eight bruises and one abrasion. Pincham spoke to RC, who told him that on the day of the incident, the officers asked if she ever physically disciplined KJC, and she said she did not. RC explained that Birge and Jahner then yelled at her to get a belt. She reported that she hit KJC with the belt only because Birge and Jahner told her to. RC said the officers threatened not to respond in the future and threatened not to order an ambulance to transport KJC to the hospital that day unless she hit KJC with the belt. According to RC, Birge and Jahner "instructed [her] to hit [KJC] for every window that he broke," and Jahner said, " ‘[W]e ask people to do things once, and then we make them do it.’ " SCP at 301, 303.
¶14 Pincham also interviewed Ncube, who confirmed that the officers asked RC if she physically disciplined KJC and told RC that she was legally entitled to physically discipline KJC. Ncube stated that Birge told RC to " ‘beat the demons’ out of [KJC]." SCP at 301.
¶15 At the request of his superior, Jahner completed a supplemental report. In it, Jahner stated that RC told the officers when they arrived that she was afraid KJC could seriously hurt her. The officers then asked RC if she had ever physically disciplined KJC. RC said she had not. Birge and Jahner then informed RC that she could use physical force to discipline her child under RCW 9A.16.100. RC was worried she would not be able to "effectively discipline" KJC because she had a back injury. SCP at 278. Birge and Jahner told RC that she could use "small items as an extension of her hand," and RC "grabbed her own belt out of her room." Id. Jahner said RC asked the officers to physically discipline KJC themselves, but they explained they could not legally do so.
¶16 Jahner reported that RC then gave KJC "several legal spankings with the belt" but KJC was combative. Id. RC struck KJC several more times as punishment for being combative, and then struck KJC again several times because he threw a toy toward her head. KJC yelled at RC that he was going to kill her. Eventually, an ambulance transported KJC to the hospital because he was threatening to kill RC and she was afraid. Jahner wrote that RC "thank[ed] us both several times." Id.
¶17 At the request of the Tacoma Police Department, WSP detective James Meldrum interviewed RC, Ncube, and Straling and created a written report describing these interviews. Meldrum certified under penalty of perjury that he had truthfully reported the interviews.
¶18 Ncube reiterated to Meldrum that Birge instructed RC to " ‘beat the demons out of [KJC].’ " SCP at 306. Ncube also noted that neither officer "cautioned [RC] on how hard to strike [KJC] or what limits she had with the belt." SCP at 305. Ncube recalled at least 25 strikes and thought the striking was "excessive." SCP at 306. Ncube explained that "Jahner grabbed [KJC] and held him face down exposing his buttocks." SCP at 305. Ncube also...
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