State v. Byrd

• Citation: 125 Wn.2d 707,887 P.2d 396
• Decision Date: 19 January 1995
• Docket Number: No. 61472-5,61472-5
• Parties: The STATE of Washington, Petitioner, v. James Mitchell BYRD, Respondent.
• Court: United States State Supreme Court of Washington

Page 707

125 Wn.2d 707

887 P.2d 396

The STATE of Washington, Petitioner, v. James Mitchell BYRD, Respondent.

No. 61472-5.

Supreme Court of Washington,

En Banc.

Jan. 19, 1995.

Norm Maleng, King County Prosecutor, John L. Belatti, Deputy, Appellate Unit, Seattle, for petitioner.

Lenell Nussbaum, Seattle, for respondent.

JOHNSON, Justice.

Defendant James Byrd was convicted of assault in the second degree. He challenges the trial court's use of a jury instruction based on former WPIC 35.50, contending the instruction's second paragraph unconstitutionally relieved the State of its burden of proving the Defendant's intent to cause apprehension and fear of bodily harm. The Court of Appeals reversed Byrd's conviction on that basis, holding the challenged instruction denied the Defendant a fair trial, 72 Wash.App. 774, 868 P.2d 158. This court granted the State's petition for review and we now affirm the decision of the Court of Appeals.

BACKGROUND

In December 1989, Paul and Jayne Byrd separated and filed for dissolution. At approximately the same time, Jayne and John "Butch" Lindemulder began to see each other frequently. Defendant James Byrd, brother of Paul Byrd, considered the relationship between Jayne and Lindemulder a betrayal of Lindemulder's friendship with Paul. James began monitoring Jayne's comings and goings.

On the afternoon of February 13, 1990, Lindemulder telephoned James Byrd "[t]o see if he was mad at me and why". RPI, at 34. ¹ According to Lindemulder, Byrd wanted to meet and threatened to "break my limbs and arms and legs.... and kill me". RPI, at 34. After initially refusing to meet Byrd, Lindemulder eventually revealed he was at his farm. Byrd denied threatening Lindemulder over the telephone and testified it was Lindemulder's idea to meet. Barbara Jarrett, who testified she was present with Byrd during the telephone conversation and transcribed what was said, stated Byrd did not threaten Lindemulder.

That evening Byrd, carrying a loaded pistol under a heavy coat, went to Lindemulder's farm. Byrd testified he brought the pistol because of John Lindemulder's reputation for owning and carrying guns. Byrd first encountered Lindemulder's brother Richard, who testified he thought Byrd had been drinking. Richard did not immediately tell Byrd of John's whereabouts, but after Byrd suggested John was "probably down screwing Jayne", Richard indicated John might be in his trailer. RPI, at 67. Byrd knocked on the door of John Lindemulder's trailer and Lindemulder let him in. Byrd and Lindemulder related different versions of the subsequent events.

Lindemulder testified Byrd accused him of "fooling around" with Jayne and threatened to cripple or kill him. After about 1/2 hour, during which Byrd made other threats, Byrd rose and went to the door. Instead of leaving, he took out his gun and put it to Lindemulder's head, pulled back the hammer, and told Lindemulder he was "history". Lindemulder sat motionless, believing Byrd would shoot him. After approximately 1 minute, Byrd lowered the hammer, put away the gun, and left the trailer. Lindemulder then called Jayne and told her what had happened; they met and went to the Duvall Police Station to report the incident.

Byrd testified his conversation with Lindemulder had been relatively calm. He expressed concern about the relationship between Lindemulder and Jayne Byrd and reminded Lindemulder The King County police arrested Byrd at his house. They obtained a search warrant for the house and seized a .357 magnum revolver containing five live rounds in the cylinder and one empty round that had been fired. A police officer testified that, from the position of the bullets in the gun, it appeared the gun had been fired and then the hammer cocked to move another live round beneath the hammer.

of his history of "messing around" with other women. As Byrd stood in the doorway and was about to leave, he pulled his gun and held it in the air, warning Lindemulder if he continued "this type of thing" with women, someday something could happen to him. Byrd denied threatening Lindemulder or pointing the gun at him.

James Byrd was charged by information with one count of assault in the second degree, with a special deadly weapon allegation. The jury returned a verdict of guilty as charged and Byrd was sentenced to 15 months in prison.

At trial Byrd took exception to the second paragraph of jury instruction 8, which defined assault as follows:

An assault 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. It is not necessary that bodily injury be inflicted, but it is sufficient if an apprehension and fear of bodily injury is created in another.

An assault is also an intentional act, with unlawful force, which creates in another a reasonable apprehension and fear of bodily injury, even though the actor did not actually intend to inflict bodily injury.

Clerk's Papers, at 53. This instruction mirrors the first and third paragraphs of former WPIC 35.50. ² Byrd argued the The Court of Appeals reversed Byrd's conviction, holding the challenged instruction failed to instruct the jury as to an essential element of second degree assault, thereby unconstitutionally relieving the State of its burden of proving Byrd intended to inflict bodily injury or to cause apprehension and fear of bodily harm. State v. Byrd, 72 Wash.App. 774, 776-78, 868 P.2d 158 (1994). The court found the second paragraph of instruction 8 referred only to an intentional act that results in creating in another a reasonable apprehension and fear of bodily injury, rather than an act done with the intent to create in another a reasonable apprehension and fear of bodily injury. Byrd, 72 Wash.App. at 780-81, 868 P.2d 158.

second paragraph of instruction 8 impermissibly instructed the jury it could convict him of assault without finding he intended to cause fear or apprehension of bodily injury.

The State petitioned this court for review, arguing the instructions were legally sufficient and did not relieve the State of its burden of proving the Defendant intended to create fear and apprehension in the mind of his victim. Two issues thus are before us:

(1) Does assault in the second degree, under the relevant definition of assault, require specific intent to create in another apprehension of bodily harm?

(2) If so, do the jury instructions given in this case fairly convey that requirement?

ANALYSIS

I

Assault in the second degree is defined by statute as follows, in pertinent part:

(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

....

(c) Assaults another with a deadly weapon; ...

RCW 9A.36.021(1). Because "assault" is not defined in the statute, courts resort to the common law for definitions. Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 504, 125 P.2d 681 (1942); State v. Krup, 36 Wash.App. 454, 457, 676 P.2d 507, review denied, 101 Wash.2d 1008 (1984). See also RCW 9A.04.060 (common law provisions supplement criminal statutes).

We have recognized two apposite definitions of criminal assault. The first definition, of long standing, is "an attempt, with unlawful force, to inflict bodily injury upon another, accompanied with the apparent present ability to give effect to the attempt if not prevented". Howell v. Winters, 58 Wash. 436, 438, 108 P. 1077 (1910). See also Guffey v. State, 103 Wash.2d 144, 149, 690 P.2d 1163 (1984); State v. Stewart, 73 Wash.2d 701, 703, 440 P.2d 815 (1968); State v. Alvis, 70 Wash.2d 969, 971, 425 P.2d 924 (1967); State v. Rush, 14 Wash.2d 138, 139, 127 P.2d 411 (1942); Peasley, 13 Wash.2d at 505, 125 P.2d 681. ³ More recently, we recognized a second definition of assault:

[A]n assault is "committed merely by putting another in apprehension of harm whether or not the actor actually intends to inflict or is incapable of inflicting that harm." The State v. Frazier, 81 Wash.2d 628, 631, 503 P.2d 1073 (1972) (quoting United States v. Rizzo, 409 F.2d 400, 403 (7th Cir.), cert. denied, 396 U.S. 911, 90 S.Ct. 226, 24 L.Ed.2d 187 (1969)).

concept is thought to have been assimilated into the criminal law from the law of torts. It is usually required that the apprehension of harm be a reasonable one.

This second definition of assault applies in James Byrd's conviction. Under this definition, the State must prove the Defendant acted with an intent to create in his or her victim's mind a reasonable apprehension of harm. State v. Austin, 59 Wash.App. 186, 192-93, 796 P.2d 746 (1990); Krup, 36 Wash.App. at 458-59, 676 P.2d 507. This requirement is summarized in a passage quoted in both Austin and Krup:

A majority of jurisdictions have extended the scope of the crime of assault to include, in addition to (not as an alternative to) the attempted-battery type of assault, the tort concept of the civil assault, which is committed when one, with intent to cause a reasonable apprehension of immediate bodily harm (though not to inflict such harm), does some act which causes such apprehension. It is sometimes stated that this type of assault is committed by an act (or by an unlawful act) which reasonably causes another to fear immediate bodily harm. This statement is not quite accurate, however, for one cannot (in those jurisdictions which have extended the tort concept of assault to criminal assault) commit a criminal assault by negligently or even recklessly or illegally acting in such a way (as with a gun or a car) as to cause another person to become apprehensive of being struck. There must be an actual intention to cause apprehension, unless there exists the morally worse intention to cause bodily harm.

(Footnotes omitted. Italics ours.) Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 611 (1972). See Krup...