State v. Bower

• Decision Date: 23 March 1981
• Docket Number: No. 8475-5-I,8475-5-I
• Parties: STATE of Washington, Respondent, v. Robert W. BOWER, Appellant.
• Court: Washington Court of Appeals

Page 704

28 Wn.App. 704

626 P.2d 39

STATE of Washington, Respondent, v. Robert W. BOWER, Appellant.

No. 8475-5-I.

Court of Appeals of Washington, Division 1.

March 23, 1981.

[626 P.2d 40] David Patterson, Marysville, Court-appointed, for appellant.

Russell B. Juckett, Snohomish County Pros. Atty., Russell K. Jones, Deputy Pros. Atty., Everett, for respondent.

RINGOLD, Judge.

The defendant, Robert W. Bower, appeals a judgment and sentence entered upon his conviction at a jury trial of a violation of RCW 9.94.030, preventing a prison guard from performing his duties. ¹ We hold that the trial court erred by not instructing the jury that knowledge was an element of the offense and by refusing Bower's request for a lesser included offense instruction.

On July 24, 1979, Terrance L. Heminger, a guard at the Washington State Reformatory, was operating a lock box during a 10-minute period in which inmates could move freely in and out of their cells before returning to their morning activities. At this time, according to Heminger's testimony, Bower physically attacked and choked him and complained about curtains being removed from his cell. Bower released his hold and Heminger ordered him to leave the cell block. After Bower refused, Heminger locked the tier, left his post at the lock box and went to the officer's desk to write an infraction report. Heminger testified that he was fearful of another attack and, therefore, did not perform his duty to check all cells after closing the lock box. The purpose of the cell check was to ascertain that nobody was harmed and that each cell was locked and contained the proper inmate.

While Heminger was preparing his report, Bower approached him, grabbed the clipboard, ripped up several infraction report forms and threw the clipboard onto the floor. Bower then left the cell block and Heminger finished his report.

The defense presented testimony by Bower, another inmate and a guard that tended to show a nonviolent confrontation and an overreaction by Heminger. Bower testified to a friendly light squeeze on Heminger's neck during a discussion about the curtains. Bower denied choking shoving and threatening him. Bower and another inmate testified that Heminger became angry and left to write an infraction report. The guard who testified for the defense could only recall observing an argument between Bower and Heminger. Concerning the incident with the infraction report, Bower testified that he removed the papers from the clipboard, tore them up, and told Heminger that he now had something to report.

NECESSITY OF SCIENTER INSTRUCTION

Bower contends and the State concedes that RCW 9.94.030 defines a mala in se crime that has "knowledge" or "intent" as an implied element because the legislature did not expressly eliminate scienter from the definition of the offense. ² State v. Turner, 78 Wash.2d 276, 474 P.2d 91, 41 A.L.R.3d 493 (1970); State v. Minium, 26 Wash.App. 840, 615 P.2d 511 (1980); see also State v. Vanderveer, 115 Wash. 184, 196 P. 650 (1921). The State, citing authority holding that the word "abet" includes "knowledge" within its ordinary meaning, argues that the instruction requiring proof of "force, violence or the threat thereof" adequately presented the element of "intent" to the jury. State v. Gibson, 79 Wash.2d 856, 490 P.2d 874 (1971). The State contends that the use of force, violence or threats thereof necessarily includes intent.

"Threat" was defined by the jury instructions in this case to include "intent", but the jury did not have to find a threat of force or violence to convict the defendant. The instructions permitted conviction upon a showing that Bower accidentally or carelessly used force that, without any intent or knowledge by Bower, prevented Heminger from performing his duties. "Force" and "violence" are not defined in the instructions, and they do not include "knowledge" or "intent" in their ordinary meaning or when read in light of all other instructions.

State v. Gibson, supra, is distinguishable. The instruction in that case was in conjunctive form, requiring the jury to find aiding and abetting. Because "abet" had a common meaning that included guilty knowledge, the court held that the requisite scienter was before the jury. Here "threat" was defined to include the requisite mental state, but the disjunctive instruction was inadequate to inform the jury that the alternatives of force or violence had to be accompanied by the knowledge or intent that the conduct would prevent the performance of the guard's duties.

The parties do not specify the level of culpability required in the mental element of this offense. We believe the defendant must be aware of the result of his conduct before a conviction can be sustained under this statute. He, therefore, must act "knowingly" ³ as defined by RCW 9A.08.010(1)(b)(i). Bower's defense tended to show that he was not aware that his conduct would prevent the performance of Heminger's duties. Upon retrial, an instruction on "knowledge" must be given to the jury.

SUFFICIENCY OF THE EVIDENCE

Bower contends that there was insufficient evidence to convict him of the charged offense. He views the testimony as showing nothing more than a momentary contact with Heminger that did not prevent the performance of any duties.

Bower ignores critical portions of the victim's testimony. There was evidence that Bower choked Heminger and created such fear in Heminger's mind that he could not perform a safety check after closing the lock box. A subsequent safety check would not have fulfilled Heminger's duty to protect the inmates immediately after closing the lock box. There was also evidence that the incident prevented Heminger from completing the full 10 minutes at the lock box. Had "knowledge" been submitted to the jury, Heminger's testimony would have been sufficient to support a finding of the existence of that mental element. Reviewing the evidence in the light most favorable to the State, we find it would be sufficient to convince a rational fact finder of the guilt of the accused beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980).

LESSER INCLUDED OFFENSES

At trial, Bower submitted several requests for instructions on allegedly included offenses. The trial court refused these requests on the theory that the offense charged was specific and unique and was not subject to general offenses as lesser included crimes. On appeal, Bower contends the trial court erred by not instructing the jury on simple assault, malicious mischief and obstructing a public servant. The State responds that the prison statute is specific and supersedes the general crimes submitted by Bower. State v. Cann, 92 Wash.2d 193, 595 P.2d 912 (1979).

To obtain a lesser included offense instruction, two conditions must be satisfied. First, each element of the lesser offense must be a necessary element of the greater offense so that it is impossible to commit the greater offense without also committing the lesser offense. Second, the evidence in the case must support an inference that only the lesser offense was committed. RCW 10.61.006; State v. Bishop, 90 Wash.2d 185, 580 P.2d 259 (1978); State v. Donofrio, 141 Wash. 132, 250 P. 951 (1926); State v. Livengood, 14 Wash.App. 203, 540 P.2d 480 (1975).

Malicious mischief, RCW 9A.48.070-.090, does not satisfy the first condition. Malice and damage to property are elements of malicious mischief that are not included within the elements of the offense of preventing a prison guard from performing his duties. The trial court properly refused to submit malicious mischief to the jury.

Simple assault, RCW 9A.36.040, is also not a lesser included offense in the usual sense of the term. The greater offense of preventing a prison guard from performing his duties can be committed by threatening force or violence against a person not present at the time of the threat. RCW 9A.04.110(25). Such a threat would not be an assault under our law. See State v. Strand, 20 Wash.App. 768, 582 P.2d 874 (1978). ⁴

Obstructing a public servant, RCW 9A.76.020(3), is a necessarily included offense. The elements of this lesser offense are: (1) knowingly, (2) hindering, delaying or obstructing; (3) a public servant; (4) in the discharge of his official powers or duties. These elements are necessarily included within the greater offense of: (1) a prison inmate; (2) knowingly; (3) preventing; (4) a prison officer; (5) from carrying out his duties; (6) by force, violence or the threat thereof. RCW 9.94.030. It is impossible to violate RCW 9.94.030 without also violating RCW 9A.76.020(3). The second condition for obtaining an instruction is also satisfied in this case. Bower's defense supports a reasonable inference that his destruction of the infraction report forms knowingly delayed Heminger's preparation of a report but did not involve force, violence or threat thereof and did not prevent the guard from performing any duties.

The State does not dispute the foregoing analysis, but argues that the specific prison statute supersedes the general misdemeanor offense and bars its use in a prison case. The State relies on a line of authority involving offenses that differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct. State v. Cann, supra (misdemeanor criminal solicitation superseded by the felony of promoting prostitution); State v. Walls, 81 Wash.2d 618, 503 P.2d 1068 (1972) (felony of grand larceny superseded by the misdemeanor of defrauding an innkeeper); State v. Carroll, 81 Wash.2d 95, 500 P.2d 115 (1972) (gross misdemeanor conspiracy superseded by the felony of conspiring against certain governmental units); State v. Davis, 48 Wash.2d 513, 294 P.2d 934 (1956) (felony kidnapping superseded by the felony of hostage taking by a prison inmate); ⁵ State v. Becker, 39 Wash.2d 94, 234 P.2d 897 (1951)...