State v. Cuellar

• Decision Date: 07 November 2011
• Docket Number: No. 65411–0–1.,65411–0–1.
• Citation: 164 Wash.App. 701,262 P.3d 1251
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Cynthia Roxana CUELLAR, Appellant.

164 Wash.App. 701
262 P.3d 1251

STATE of Washington, Respondent,
v.
Cynthia Roxana CUELLAR, Appellant.

No. 65411–0–1.

Court of Appeals of Washington, Division 1.

Nov. 7, 2011.

[262 P.3d 1251]

Oliver R. Davis, Washington Appellate Project, Seattle, WA, Cynthia Roxana Cuellar, Des Moines, WA, for appellant.Ann Marie Summers, King County Prosecutor's Office, Seattle, WA, for respondent.PUBLISHED IN PART BECKER, J.

[164 Wash.App. 702] ¶ 1 Cynthia Cuellar claimed that she bit a police officer in self-defense. The jury found her guilty of third degree assault. In the published portion of this opinion, we reject her contention that resisting arrest is a lesser included offense of third degree assault as charged in this case. Evidence that Cuellar ignored warnings to stay back and then aggressively approached police officers attempting to secure the participants in a domestic disturbance supported a reasonable inference that she provoked the need to act in self-defense. Accordingly, the trial court did not err in giving a first aggressor instruction. We also conclude that the deputy prosecutor's improper closing argument was not sufficiently prejudicial to affect the outcome of the trial. We therefore affirm Cuellar's conviction.

LESSER INCLUDED OFFENSE

¶ 2 Cuellar contends that the trial court erred in refusing to instruct the jury on the lesser included offense of resisting arrest. A defendant is entitled to an instruction

[262 P.3d 1252]

on a lesser included offense if (1) each element of the lesser offense is a necessary element of the charged offense (legal prong) and (2) the evidence supports an inference that the defendant committed only the lesser offense (factual prong). [164 Wash.App. 703] State v. Workman, 90 Wash.2d 443, 447–48, 584 P.2d 382 (1978). Consequently, “if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime.” State v. Turner, 143 Wash.2d 715, 729, 23 P.3d 499 (2001), quoting State v. Roybal, 82 Wash.2d 577, 583, 512 P.2d 718 (1973).¹ We apply this analysis to the greater offense as specifically charged and prosecuted, not to all statutory alternative means. State v. Berlin, 133 Wash.2d 541, 548, 947 P.2d 700 (1997).

¶ 3 To convict Cuellar of third degree assault as charged, the State had to prove that she assaulted a police officer “who was performing his or her official duties at the time of the assault.” RCW 9A.36.031(1)(g). A person resists arrest if she “intentionally prevents or attempts to prevent a police officer from lawfully arresting [her].” RCW 9A.76.040(1). Because intent to resist arrest is not a necessary element of third degree assault under RCW 9A.36.031(1)(g), a person can commit an assault on a police officer who is performing official duties unrelated to making an arrest. And resisting arrest does not require conduct that constitutes an assault. See State v. Williams, 29 Wash.App. 86, 92, 627 P.2d 581 (1981). Consequently, resisting arrest does not satisfy the legal prong of the Workman test.

¶ 4 Cuellar's reliance on State v. Marshall, 37 Wash.App. 127, 678 P.2d 1308, review denied, 101 Wash.2d 1017, 101 Wash.2d 1017 (1984), is misplaced. The assault charge in Marshall involved a statutory alternative means that encompassed resisting arrest. See RCW 9A.36.031(1)(a).² Unlike RCW 9A.36.031(1)(a), RCW 9A.36.031(1)(g) does not [164 Wash.App. 704] include resisting arrest as a necessary element. Marshall is therefore distinguishable. See also State v. Godsey, 131 Wash.App. 278, 289, 127 P.3d 11 (resisting arrest is a lesser included offense of assault under RCW 9A.36.031(1)(a)), review denied, 158 Wash.2d 1022, 149 P.3d 379 (2006).

¶ 5 The trial court correctly concluded that resisting arrest was not a lesser included offense of third degree assault under RCW 9A.36.031(1)(g).

¶ 6 Affirmed.

¶ 7 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.

******UNPUBLISHED TEXT FOLLOWS******

¶ 8 At about 10:30 p.m. on April 24, 2009, Kent police officers Mark Williams and Thomas Clark responded to a reported domestic disturbance at the Pembroke Apartment complex. The dispatch report indicated that someone might be armed with a knife.

¶ 9 Upon arrival, Williams and Clark watched from a distance as an apparently drunken man in the parking lot swung his fists unsuccessfully at another man. After waiting a few minutes for more officers to arrive, Williams and Clark walked across the parking lot and approached the man, later identified as Luis Cuellar.³ By now, two individuals held Luis on the ground.

¶ 10 After the individuals got up, the officers ordered Luis to remain on the ground. When he failed to comply and attempted to walk away, the officers used a stun gun on him and knocked him to the ground, where they were eventually able to handcuff him. In the meantime, Officer Joel Makings and Sergeant Eric Hemmen arrived and took over for Williams and Clark. Luis remained on the ground kicking and screaming.

¶ 11 Williams and Clark went to investigate the apartment where the disturbance had reportedly started. Inside the apartment, the officers found signs of a struggle, including items in disarray, a large hole in the bathroom door, and blood on the bathroom floor and on the washer and dryer. Before they could search further, the officers heard screaming and the sounds of a heated argument from outside in the parking lot and left the apartment to assist their fellow officers.

¶ 12 Outside, Williams and Clark saw that Hemmen was still attempting to control Luis, while Makings was placing handcuffs on a woman, later identified as Hilda Cuellar. According to Makings, Hilda had continued to approach Luis and then started hitting Makings when he attempted to turn her away. About 10 to 15 people from the apartment complex had gathered around and were yelling “let them go” ⁴ as they moved toward the officers who were attempting to control Hilda and Luis.

¶ 13 Upon arrival, Officer Heather Vance encountered Cynthia, who was attempting to approach the officers, and ordered her to stay back. A short time later, when assisting with Luis, Vance saw Cynthia approaching, apparently very upset and “in attack mode.” ⁵ Makings saw Cynthia running toward the officers yelling something like “get off my family, get away from my family.” ⁶

¶ 14 As he returned to the parking lot, Officer Clark saw Cynthia screaming and advancing toward one of the officers. When that officer tried to grab her, she pulled away. Cynthia appeared to be “highly agitated, angry, and ... was advancing on officers that were trying to hold the crowd at bay.” ⁷ Concerned that the situation was worsening and that Cynthia's aggressiveness posed a safety risk to the other officers, Clark approached her from behind, placed his arm around her neck, and applied a lateral vascular neck restraint (LVNR).⁸

¶ 15 Cynthia continued to flail her arms as Clark repeatedly ordered her to stop resisting. When she eventually lowered her arms, Clark released his hold. Cynthia immediately resumed her resistance, and as Clark tried to reapply the LVNR, Cynthia bit his forearm and did not release Clark's arm until he had wrestled her to the ground and struck her in the face. Several officers were eventually able to restrain Cynthia after using a stun gun on her several times.

¶ 16 Because she had remained standing, Clark did not believe that Cynthia had lost consciousness. Other officers thought that Cynthia had slumped and appeared to be losing consciousness after Clark applied the LVNR.

¶ 17 Cynthia testified that on the evening of the incident, she was visiting her cousin Hilda, who lived in the same apartment complex. Her cousin Luis was also present. At some point, an argument broke out in another room and several family members forced Luis outside. When she heard yelling, she went outside and saw police officers using a stun gun on Luis. As Cynthia started walking over to Luis to calm him down, a police officer threw her down to the ground without warning. The officer then pulled her to her feet and put his arm around her neck. Because she was unable to breathe, she bit the officer's arm. The officer then hit her in the face and used a stun gun on her before placing her in handcuffs. Cynthia denied that any officer had attempted to stop her from approaching Luis.

¶ 18 The State charged Cynthia Cuellar with one count of third degree assault. The court instructed the jury on Cynthia's claim of self-defense. Over defense objections, the court also gave the State's proposed first aggressor instruction. The jury found Cynthia guilty as charged, and the court imposed a first time offender waiver sentence of four days of confinement for time served.

ANALYSIS Aggressor Instruction

¶ 19 Cuellar contends the trial court committed reversible error when it gave the State's proposed first aggressor instruction over defense counsel's objection.⁹ A jury instruction is appropriate if there is evidence to support the theory on which the instruction is based. State v. Davis, 119 Wash.2d 657, 665, 835 P.2d 1039 (1992). Although not favored, an aggressor instruction is proper if there is credible evidence, even if disputed, “from which a jury can reasonably determine that the defendant provoked the need to act in self-defense.” State v. Riley, 137 Wash.2d 904, 909, 976 P.2d 624 (1999). The provoking act must be intentional and related to the assault for which self-defense is claimed, but cannot be the actual assault. State v. Kidd, 57 Wash.App. 95, 100, 786 P.2d 847, review denied, 115 Wash.2d 1010, 797 P.2d 511 (1990). Words alone are insufficient provocation to support the giving of an aggressor instruction. See Riley, 137 Wash.2d at 911, 976 P.2d 624. Whether the evidence was sufficient to support the giving of an aggressor instruction is a question of law that we review de novo. State v. Bea, 162...