State v. Calvin

• Decision Date: 22 October 2013
• Docket Number: No. 67627–0–I.,67627–0–I.
• Citation: 316 P.3d 496
• Parties: STATE of Washington, Respondent, v. Donald L. CALVIN, Appellant.
• Court: Washington Court of Appeals

316 P.3d 496

STATE of Washington, Respondent,

v.Donald L. CALVIN, Appellant.

No. 67627–0–I.

Court of Appeals of Washington, Division 1.

May 28, 2013.

As Amended on Reconsideration Oct. 22, 2013.

Elaine L. Winters, Washington Appellate Project, Attorney at Law, Seattle, WA, for Appellant.

Donald Lee Calvin, Bellingham, WA, pro se.

Kimberly Anne Thulin, Whatcom Cty. Pros. Atty's Office, Whatcom County Prosecutor's Office, Attorney at Law, Bellingham, WA, for Respondent.

APPELWICK, J.

¶ 1 After an altercation with a park ranger, Calvin was convicted of assault in the third degree and resisting arrest. He argues that his convictions are not supported by substantial evidence, that he was entitled to a self-defense instruction, that he was prejudiced by prosecutorial misconduct, that the trial court erred by correcting and replacing an instruction during jury deliberations, and that there is no evidence to support a finding that he has the ability to pay legal financial obligations. We affirm.

FACTS

¶ 2 In April 2010, Alexander Moularas was a park ranger at Larrabee State Park in Bellingham. The park closes to day users half an hour after sunset. On April 10, Ranger Moularas closed the gate at 8:30 p.m. At around 9:15 p.m., he discovered a car idling in front of the closed gate. Ranger Moularas was driving a dark blue truck with a white stripe across it, a park shield on the door, and a law enforcement light bar on top. He was wearing his uniform

¶ 3 When he pulled up, Ranger Moularas saw Donald Calvin standing outside of his idling vehicle. Ranger Moularas rolled his window down, shut off the ignition, and announced himself as a ranger. Calvin was aggravated, said that he just wanted to take a shower, and asked if Ranger Moularas was going to let him in. Ranger Moularas informed Calvin that the facilities were closed at that point and only available to campers. In a strained tone, Calvin asked how much it was going to cost him to get in. Ranger Moularas responded that the price for camping was $14.

¶ 4 Calvin approached the park vehicle and came within two feet of the open window. Ranger Moularas was trained not to be approached in his vehicle. He became apprehensive because of Calvin's proximity to his window and the minimal lighting in the area. He exited his vehicle and repeated that Calvin could enter as a camper, but needed to leave if he had no intention of camping. Calvin asked for Ranger Moularas's name. Ranger Moularas responded by giving his first and last name, and Calvin shouted, “Well, at least you know your damn name.” At that point, Ranger Moularas thought Calvin might have been under the influence of intoxicants. He took out his flashlight and pointed it at Calvin's chest. Calvin said, “Get that F-ing light out of my face,” put his hand up, and reached toward Ranger Moularas. They were standing approximately five feet apart.

¶ 5 Ranger Moularas told Calvin to get back. When Calvin did not retreat, he sprayed him with a quick burst of pepper spray. Calvin advanced such that Ranger Moularas had to back up approximately 10 feet. He yelled at Calvin to get back and get on the ground. When Calvin kept coming with his hands toward his face in an aggressive posture, Ranger Moularas struck him with his baton approximately six times.

¶ 6 Calvin began walking away. Ranger Moularas holstered his baton and went after Calvin to arrest him for assault. He yelled, “Police, get on the ground,” grabbed Calvin's left arm, and took him to the ground. He was able to cuff Calvin's left wrist, but Calvin would not yield his right arm. Ranger Moularas told Calvin to quit resisting and give his arm, but Calvin struggled for approximately a minute before Ranger Moularas could get the second cuff on. Ranger Moularas read Calvin his rights and Whatcom County sheriffs took him from the scene. Calvin referred to Ranger Moularas as “ranger dick.”

¶ 7 The State charged Calvin with assault in the third degree and resisting arrest. Calvin offered a different version of events at trial. He testified that he initially approached Ranger Moularas's vehicle because he could not understand what he was saying. When Ranger Moularas asked him to leave, he returned to his vehicle. According to Calvin, only then did Ranger Moularas get out of his vehicle. He walked over toward Calvin, who was by then sitting in his car, shined his flashlight in, and told Calvin to get out. When Calvin got out, Ranger Moularas shined a flashlight in his eyes. Calvin put his hands up to block the light and Ranger Moularas immediately sprayed him with pepper spray. Calvin testified that he had no intent to harm Ranger Moularas, and did not move toward Ranger Moularas before Ranger Moularas started to beat him. But, Calvin acknowledged that he was angry. Calvin knew Ranger Moularas was associated with the park, but denied knowing he was a ranger. Calvin denied resisting arrest, but stated he rolled and twisted to avoid being hit by Ranger Moularas's baton.

¶ 8 The jury found Calvin guilty on both charges. He appeals.

DISCUSSION

I. Sufficiency of the Evidence

¶ 9 Calvin argues that neither his conviction for assault in the third degree nor his conviction for resisting arrest is supported by sufficient evidence. Evidence is sufficient to support a conviction if, after the evidence and all reasonable inferences from it is viewed in the light most favorable to the State, a rational trier of fact could find each element of the crime proven beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980).

A. Assault in the Third Degree

¶ 10 As instructed in this case, the elements of assault in the third degree are that (1) Calvin committed an act with the intention of placing Ranger Moularas in apprehension and fear of bodily injury, (2) the act in fact created a reasonable apprehension and imminent fear of bodily injury, (3) Ranger Moularas was a law enforcement officer who was performing his official duties, and (4) the acts occurred in the State of Washington. Whether Calvin intended to actually inflict bodily injury is immaterial under the jury instructions. Calvin argues that there was insufficient evidence to prove that Ranger Moularas's fear of bodily injury was reasonable or that he intended to place Ranger Moularas in fear of bodily injury.

1. Reasonable Apprehension and Fear

¶ 11 The incident occurred in a dark, isolated area. Ranger Moularas testified that Calvin was aggravated and appeared unbalanced or under the influence. He testified that Calvin reached his hand toward him, swore at him multiple times, and eventually forced him to back up about 10 feet. Those facts are sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Ranger Moularas's apprehension and fear were reasonable.

¶ 12 Calvin's arguments to the contrary are unavailing. He first offers other reasonable interpretations of the evidence. For instance, he claims he has trouble hearing and it is normal to approach someone when you are talking. He also argues he raised his hands to his face only after Ranger Moularas aimed a flashlight at him, and put his fists towards his face only when Ranger Moularas sprayed him with pepper spray. But, in a sufficiency inquiry the court views the evidence in the light most favorable to the State. Calvin's alternative interpretations are irrelevant.

¶ 13 Calvin next compares the State's evidence to other cases in which there was more evidence that apprehension and fear were reasonable. In State v. Brown, a police officer was placed in reasonable fear when the defendant spun around, unzipped his jacket, removed a cigarette lighter that looked like a handgun, and pointed the lighter at the officer. 140 Wash.2d 456, 461–62, 998 P.2d 321 (2000). In State v. Godsey, a police officer was placed in reasonable fear when the defendant approached him with fists up, invited him to “ ‘[c]ome on,’ and took a step toward him.” 131 Wash.App. 278, 288, 127 P.3d 11 (2006) (alteration in original). But, those were not sufficiency cases. The mere fact that Calvin's actions in this case were not as overt as the defendants' acts in those cases does not mean there was insufficient evidence here.

¶ 14 Finally, Calvin argues that he did not make a true threat and the use of a strained or sarcastic tone of voice does not create a reasonable fear of assault. But, Calvin's tone was not the only evidence that Ranger Moularas's fear was reasonable. And, the State was not required to prove that Calvin made a true threat because that is not an element of assault. SeeRCW 9A.36.031(1)(a).

2. Intent

¶ 15 In arguing that he did not have the requisite intent, Calvin points to his own testimony and compares this case to another case with more egregious facts to demonstrate that he had no intent to place Ranger Moularas in fear of bodily injury. Neither of those tactics establishes the absence of facts sufficient to find that Calvin intended to create a fear of bodily injury. Calvin acknowledged that he was angry when Ranger Moularas shined the flashlight on him and conceded that he may have told Ranger Moularas to get “that fucking flashlight out of my face.” Ranger Moularas testified that as Calvin said that, he put his hand up and moved toward him. After Ranger Moularas sprayed Calvin with pepper spray, Calvin kept his fists up toward his face and continued to come toward him such that he had to back up approximately 10 feet. Calvin's acknowledged anger, combined with his movement toward Ranger Moularas, provide sufficient evidence for a rational trier of fact to find that Calvin intended to create a fear of bodily injury.

B. Resisting Arrest

¶ 16 The jury was instructed that, to convict Calvin of resisting arrest, the State had to prove that he intentionally prevented or attempted to prevent a peace officer from lawfully arresting him. Calvin argues that he could not have committed the crime of resisting arrest, because he did not...