State v. Krup

• Decision Date: 16 January 1984
• Docket Number: No. 12088-3-I,12088-3-I
• Citation: 36 Wn.App. 454,676 P.2d 507
• Parties: STATE of Washington, Respondent, v. Bernard Wesley KRUP, Appellant.
• Court: Washington Court of Appeals

Page 454

36 Wn.App. 454

676 P.2d 507

STATE of Washington, Respondent, v. Bernard Wesley KRUP, Appellant.

No. 12088-3-I.

Court of Appeals of Washington,

Division 1.

Jan. 16, 1984.

Review Denied March 23, 1984.

Julie A. Kesler, Washington Appellate Defender Ass'n, court-appointed, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Greg Hubbard, Deputy Pros. Atty., Seattle, for respondent.

SWANSON, Judge.

Bernard Wesley Krup appeals his conviction of second degree assault with a knife. He asserts that certain jury instructions erroneously defined assault and erroneously required the jury to find him innocent of a greater offense before considering his guilt as to a lesser included offense.

On the morning of March 20, 1982, Krup twice entered Ms. Chung's grocery store, a store which he had often frequented for the primary purpose of playing the several video games there. According to Ms. Chung, and contrary to Krup's testimony, during this second occasion only she and Krup were in the store. Ms. Chung became frightened by what she termed Krup's strange activities and asked him to leave. He refused. Krup testified that Ms. Chung's refusal to sell him cigarettes and her insistence that he pay for a window, which he maintains she wrongfully accused him of having broken several days earlier, fueled the ensuing argument. Again, she ordered him to leave. He responded by pulling a pocket knife from his pocket, pointing it at her, and threatening to kill her. As he left the store, Krup stabbed the knife into the counter top at the end nearest the door. Defense witnesses testified that they did not see Krup point the knife at Ms. Chung but that he yelled at her exclaiming that he would see her in court. Krup denies having threatened to kill her, but admits having stabbed the knife into the counter.

At trial, the defendant objected to the use of certain jury instructions and the exclusion of others. Such objections form the basis of his appeal. The court gave jury instruction 7, ¹ which defined an assault in the language of paragraph 3 of WPIC 35.50, and refused to give the defendant's proposed jury instructions 5 ² and 6 ³ which defined an assault as an attempt and defined an attempt.

The trial court also gave, over defense objection, instructions 9 ⁴ and 13 ⁵ and verdict form B ⁶ to the jury which Krup asserts erroneously required the jury to acquit him of second degree assault before considering the lesser included offense of unlawful display of a weapon.

The jury returned with a verdict finding Krup guilty of second degree assault with a weapon.

THE "ASSAULT" INSTRUCTION

Krup was convicted under RCW 9A.36.020 which proscribes, but fails to define, second degree assault. The statute provides:

(1) Every person who, under circumstances not amounting to assault in the first degree shall be guilty of assault in the second degree when he:

* * *

(c) Shall knowingly assault another with a weapon or other instrument or thing likely to produce bodily harm; ...

Because "assault" is not statutorily defined, resort must be, and has been, made to the common law. Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 125 P.2d 681 (1942); Howell v. Winters, 58 Wash. 436, 108 P. 1077 (1910); see RCW 9A.04.060. Our courts typically have defined "assault" in general terms to be "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." 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; State v. Maurer, 34 Wash.App. 573, 663 P.2d 152 (1983); State v. Jimerson, 27 Wash.App. 415, 418, 618 P.2d 1027, rev. denied, 94 Wash.2d 1025 (1980); State v. Murphy, 7 Wash.App. 505, 511, 500 P.2d 1276, rev. denied, 81 Wash.2d 1008 (1972). This is regularly accompanied by an instruction defining "attempt." See, e.g., Murphy, at 512-13, 500 P.2d 1276. The defendant's proposed jury instructions utilized this approach and wording.

Our courts have also stressed, however, that whether there has or has not been an assault in a particular case depends more upon the reasonable apprehension and fear of bodily injury created in the victim's mind by the actor's apparent present ability to cause bodily harm, than upon the actor's undisclosed intention. See Rush, supra; Peasley, supra; Murphy, supra; accord State v. Strand, 20 Wash.App. 768, 779, 582 P.2d 874 (1978).

Our Supreme Court further elucidated the law concerning criminal assault in State v. Frazier, 81 Wash.2d 628, 631, 503 P.2d 1073 (1972), by quoting from United States v. Rizzo, 409 F.2d 400, 403 (7th Cir.1969), cert. denied, 396 U.S. 911, 90 S.Ct. 226, 24 L.Ed.2d 187 (1969):

One concept is that an assault is an attempt to commit a battery. There may be an attempt to commit a battery, and hence an assault, under circumstances where the intended victim is unaware of danger. Apprehension on the part of the victim is not an essential element of that type of assault....

The second concept is that an 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 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.

(Footnotes omitted). See also Maurer, 34 Wash.App. 1 at 579, 663 P.2d 152; Strand, 20 Wash.App. at 780, 582 P.2d 874.

Although Krup's criminal assault charge falls into this second category, the State is not relieved from proving Krup acted with an intent or design to create in his victim's mind a reasonable apprehension of harm; negligence alone is insufficient. See State v. Wheeler, 95 Wash.2d 799, 631 P.2d 376 (1981); State v. Shipp, 93 Wash.2d 510, 610 P.2d 1322 (1980); accord State v. Ticeson, 26 Wash.App. 876, 614 P.2d 245 (1980). It has been noted that,

[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.

LaFave and Scott, Handbook on Criminal Law, at 611 (1972) (footnotes omitted; emphasis in the original).

The court properly instructed the jury on this "actual intention" element by specifically defining assault as an intentional act, ⁷ defining intent, ⁸ and further defining the "knowledge" element ⁹ statutorily required to be found for criminal assault.

With these instructions, the court clearly overcame any hurdle presented in Murphy, supra, and Jimerson, supra, cited by the defendant. In Murphy the court's instructions failed to present the jury with a question of intent, which is the distinction between violence menaced and violence begun. Similarly, Jimerson, supra, is not dispositive, because the only issue there concerned Jimerson's choice of instruments for the accomplishment of the assault, and not his intention to assault.

Moreover, several cases have upheld the use of jury instructions which mirrored WPIC 35.50. ¹⁰ Shipp, 93 Wash.2d at 517- 18, 610 P.2d 1322; State v. Johnson, 29 Wash.App. 807, 812, 631 P.2d 413, rev. denied, 96 Wash.2d 1009 (1981); State v. Hinz, 22 Wash.App. 906, 594 P.2d 1350 (1979), aff'd, 93 Wash.2d 510, 610 P.2d 1322 (1980). These instructions gave the jury three mutually exclusive theories for conviction of second degree assault: (1) attempted battery; (2) actual battery; and (3) intentional actions which, although not intended to cause actual bodily injury, created in the victim's mind a reasonable apprehension and fear of bodily harm. The Washington Supreme Court Committee on Jury Instructions commented that the third definition is to be used "in cases where [as here] there is evidence that the actor's intent was not to inflict bodily injury but only to create the apprehension or fear of bodily injury in the victim." WPIC 35.50, Note on Use at 200. We concur.

State v. Wheeler, supra, also upheld the use of a second degree "assault" instruction ¹¹ similar to the one under consideration here. Wheeler had appealed his conviction on the basis of an instruction which unconstitutionally defined the term "knowingly" in the words of the second degree assault statute. The court found that this unconstitutional "knowledge" instruction constituted harmless error, because the "assault" instruction, as in the instant case, defined assault as an "intentional" act. See also State v. Shipp, supra.

Krup contends that, given the court's instructions, if his stabbing the knife into the counter was a criminal act, the jury could have found him to have acted intentionally. Having acted intentionally, he contends that the jury then could have convicted Krup of second degree assault, although he lacked an intent to cause Ms. Chung apprehension or fear of bodily harm. This argument fails to consider the words of the "assault" instruction, however, which required the jury also to find that...