State v. Johnson

• Decision Date: 22 April 1981
• Docket Number: No. 4587-II,4587-II
• Citation: 29 Wn.App. 307,628 P.2d 479
• Parties: The STATE of Washington, Respondent, v. Randy L. JOHNSON, Appellant.
• Court: Washington Court of Appeals

Page 307

29 Wn.App. 307

628 P.2d 479

The STATE of Washington, Respondent, v. Randy L. JOHNSON, Appellant.

No. 4587-II.

Court of Appeals of Washington, Division 2.

Decided April 22, 1981.

As Changed May 13, 1981.

Elizabeth Penoyar, South Bend, for appellant.

Jeremy Randolph, Special Deputy Pros. Atty. for Pacific County, Chehalis, for respondent.

PEARSON, Judge.

In this appeal from a conviction for third degree assault, defendant argues that probable cause did not support his warrantless arrest, and that the State failed to prove that he assaulted a police officer with intent to "prevent" or "resist" his apprehension or detention pursuant to RCW 9A.36.030(1)(a). We disagree and affirm.

On the evening of July 25, 1979, Officer Wyatt Gilkie, a uniformed member of the Long Beach police force, was dispatched to investigate a noise disturbance call. Near the scene, he observed defendant Randy Johnson straddling a woman who was crying and struggling to get up. ¹ Following the refusal of his command to defendant to let the woman up, Officer Gilkie at some point told Johnson that he was under arrest. Johnson then removed the officer's eyeglasses, placed them on the hood of the patrol car, and said, "C'mon Nigger. I'm going to whip your ass." Defendant is more than 6 feet, 7 inches tall, and much larger than Officer Gilkie. In response to defendant's threat, the officer retreated and radioed for assistance.

After much physical effort and the arrival of four more police officers, Johnson was placed unhandcuffed in the rear of the patrol car. The front and back seats of the car were separated by a partition which allowed approximately 6 inches of clearance between the top of the partition and roof. During the long drive to the police station, Johnson repeatedly reached over the partition and tapped Officer Gilkie on the head, interfering with the officer's driving. Defendant testified, in essence, that he tapped the officer on the head to be insulting. Officer Gilkie was not physically harmed by the assault. In a trial to the bench, defendant was convicted of third degree assault solely on the basis of his conduct within the patrol car.

We first address the question of whether probable cause existed to make defendant's arrest a "lawful apprehension or detention," pursuant to RCW 9A.36.030(1)(a). (Italics ours.) The existence of probable cause for the arrest is crucial to the State's case because, as defendant correctly contends, not only does a citizen have the right to resist an unlawful arrest so long as that resistance is reasonable in light of all the circumstances, Kennewick v. Keller, 11 Wash.App. 777, 787, 525 P.2d 267 (1974), but if an officer's actions are unlawful, a defendant cannot be convicted of third degree assault, which requires intent to prevent or resist lawful apprehension or detention, State v. Humphries, 21 Wash.App. 405, 408, 586 P.2d 130 (1978).

A police officer may, however, arrest a person without a warrant upon probable cause that the person has committed or is committing a misdemeanor or felony. RCW 10.31.100. Probable cause exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in a belief that an offense has been committed. The determination will rest on the totality of the facts and circumstances within the officer's knowledge at the time of the arrest. State v. Fricks, 91 Wash.2d 391, 398, 588 P.2d 1328 (1979).

Applying these principles to the facts of the present case, we have determined, in the course of our independent evaluation of the record, ² see State v. Daugherty, 94 Wash.2d 263, 269, 616 P.2d 649 (1980), that defendant's actions toward the woman he was physically restraining at the time of the arresting officer's arrival, and his subsequent removal of the officer's glasses, either alone or in combination, ³ provided probable cause for his warrantless arrest. Accordingly, we hold that there is no merit to defendant's contention that neither his apprehension nor subsequent detention was lawful.

The next question is whether defendant assaulted the arresting officer with intent to "prevent" or "resist" his apprehension or detention, within the meaning of RCW 9A.36.030(1)...