State v. Riojas
| Decision Date | 21 October 2014 |
| Docket Number | No. 31386-7-III,31386-7-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. MERSADEZE SIDNEY RIOJAS, Appellant. |
SEDDOWAY, C.J. — Mersadeze Riojas was being questioned by Sergeant Michael Moses outside a late night party about possible criminal activity by partygoers. Angered by the line of questions, she walked away, ignoring his command that she was not free to leave. When he firmly grabbed her upper arm to prevent her from leaving, she swung around and hit him. She was convicted following a jury trial of third degree assault of a law enforcement officer.
Ms. Riojas sought to defend on the basis that the sergeant's detention of her was unlawful under Terry v. Ohio;1 that as a result, he was not performing his "official duties' at the time she hit him; and that her response to being grabbed was an instinctive act rather than an intentional one. She argues that the State's evidence was insufficient and that several evidentiary and instructional errors by the trial court require reversal.
Substantial evidence supported the State's case and we find no error or abuse of discretion. We affirm.
At about one a.m. on a summer morning in 2012, several Walla Walla police officers responded to a report of a party at a warehouse involving "under-aged drinking, fightingt[,] and possibly a gun." Report of Proceedings (RP) at 115. Upon arriving at the warehouse, officers saw several vehicles parked outside. They saw open beer cans and bottles and could smell alcohol. They could hear people yelling inside the warehouse (voices they perceived to be female) and the sound of glass breaking.
Sergeant Michael Moses, one of the responding officers, was speaking with a young man who had emerged from the warehouse to object that the officers were trespassing and needed to leave when a young woman, later identified as Bailee Culver, ran out of a door located on a loading dock. Apparently intoxicated and unaware that she was above ground level, Ms. Culver ran off the edge of the dock and immediately fell, tumbling forward and yelling, '"Those Mexican girls are chasing me and . . . throwing bottles at me and I don't know why.'" RP at 122. The defendant, Mersadeze Riojas, ran out the door close on the heels of Ms. Culver and jumped off the loading dock, landing on her feet. Officer Ignacio Colin was standing in the immediate vicinity and as Ms. Riojas straightened up, still headed for Ms. Culver, he grabbed and stopped her, stating, " " RP at 85, Officer Colin continued talking to Ms. Riojas, who calmed down.
According to Officer Colin, Ms. Riojas "appeared to be highly intoxicated." RP at 86. When he asked Ms. Riojas why she had been chasing Ms. Culver, she stated that Ms. Culver had been going after her friend and she did not like that, so she went after Ms. Culver. Ms. Riojas claimed to have recently turned 21 and told the officer she had identification in her car; the officer then escorted her to her car, where they continued talking.
As Officer Colin was finishing up his conversation with Ms. Riojas, Sergeant Moses approached the two. Just as Sergeant Moses reached them, Ms. Riojas stated that Ms. Culver had been chasing her with a knife. Officer Colin took the opportunity of the arrival of Sergeant Moses—his superior—to leave, in order to investigate other partygoers and their cars. As Officer Colin walked away, Sergeant Moses asked Ms. Riojas why she had been fighting, to which Ms. Riojas responded that she had not been fighting. Ms. Riojas would later testify that the sergeant's questions were "[a]ccusatory . . . so I told him believe what he wants, obviously he is white, he is going to believe [Ms. Culver] because she is white." RP at 261. Ms. Riojas later admitted that she lied when she said that Ms. Culver had a knife.
Unwilling to talk further with the sergeant, Ms. Riojas said, "'Whatever . . . fuck this,'" and began to walk away. RP at 112. Sergeant Moses told Ms. Riojas that she wasnot free to leave, to which she responded, "'Fuck you,'" and continued on her way. Id. at 113. The sergeant caught up with Ms. Riojas and firmly grabbed her right upper arm. Ms. Riojas immediately swung around and hit him in the lip with her left hand.
Upon being struck, Sergeant Moses pulled Ms. Riojas to the ground and told her she was under arrest for assaulting a police officer. Another officer assisted the sergeant in handcuffing Ms. Riojas and walking her to the patrol car. She resisted the officers' movements, screaming that they were hurting her. Ms. Riojas was the only partygoer arrested that night and was later charged with assault in the third degree under RCW 9A.36.031(1)(g), which criminalizes "[a]ssault[ing] a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault."
The morning after Ms. Riojas's arrest, Detective Miguel Sanchez went to the jail and spoke with her. According to the detective, when he told Ms. Riojas that she had been arrested for assaulting an officer, she laughed and said, " RP at 178. As he was leaving, Ms. Riojas told the detective, "'I can't remember anything.'" Id.
Ms. Riojas filed a pretrial Knapstad2 motion to dismiss, arguing that because Sergeant Moses had neither probable cause to arrest nor reasonable suspicion of criminalactivity sufficient to justify a temporary detention, no rational trier of fact could find that he was performing his official duties at the time of the assault. She argued that no reasonable trier of fact could decide that Ms. Riojas was not acting in self-defense. The trial court denied the motion. In a letter opinion, it found that detention was lawful because "[tjhere were 'articulable objective reasons to suspect' that Ms. Riojas was engaged in criminal activity" and "[t]hose facts are not in dispute." Clerk's Papers (CP) at 20.
The State then moved in limine to exclude any evidence or argument that Ms. Riojas acted in self-defense or that her detention or arrest was unlawful. It pointed out that the lawfulness of police conduct is not an element of the crime charged and that there was no evidence to support an imminent threat of serious harm to Ms. Riojas required to establish legitimate use of force in self-defense against a police officer. It argued that an order in limine would ensure that the jurors would not hear "impermissible evidence." CP at 22. The court granted the motion, stating that Ms. Riojas could make an offer of proof to create a record for appeal and could, if she wished, move for reconsideration.
Midway through the trial, Ms. Riojas renewed her request that the court dismiss the assault charge based on the absence of evidence that the sergeant was performing his official duties. The trial court again refused to dismiss.
Ms. Riojas proposed jury instructions, one of which would have informed the jury that "[a]n unlawful detention is by definition not part of lawful police duties," based on astatement made in this court's decision in State v. Barnes, 96 Wn. App. 217, 225, 978 P.2d 1131 (1999). CP at 30. Another explained that force used "by a person who reasonably believes that she is about to be injured or in preventing or attempting to prevent an offense against the person" was a defense to a charge of third degree assault. CP at 35 (citing 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 17.02 (3d ed. 2008) (WPIC)). Alternatively, Ms. Riojas asked that the court give WPIC 17.02.01, the pattern instruction for lawful force in resisting detention. The court refused to give any of the three instructions.
The trial court did instruct the jury on the definition of assault, using the pattern instruction set forth in WPIC 35.50. Among the definition language included in the instruction was that "[a]n assault is an intentional touching or striking . . . of a person, with unlawful force." CP at 44 (Instruction 5). Ms. Riojas did not object to the instruction.
The jury found Ms. Riojas guilty as charged. She appeals.
Ms. Riojas assigns error to the trial court's (1) refusal to dismiss the charge for insufficient evidence, (2) exclusion of evidence that she acted in self-defense and her training in self-defense, (3) alleged violation of her constitutional right to present a defense, (4) refusal to give Ms. Riojas's proposed instruction on self-defense, and (5) use of the undefined and allegedly vague term "unlawful force" in its instructions to the jury.
We begin by summarizing Washington law on two matters: first, the construction of the "performing official duties" element of third degree assault of a law enforcement officer, and second, the circumstances under which a person may lawfully use force in self-defense against a law enforcement officer. We then turn to Ms. Riojas's assignments of error.
RCW 9A.36.031 includes two means of committing third degree assault against a law enforcement officer engaged in performing official duties at its subsections (1)(a) and (1)(g). RCW 9A.36.031(1)(g) is the broader of the two. See State v. Ross, 71 Wn. App. 837, 843, 863 P.2d 102 (1993) (). While RCW 9A.36.031(1)(a) applies to a defendant's assault preventing or resisting "the lawful apprehension or detention of himself, herself, or another person," RCW 9A.36.031(1)(g), with which Ms. Riojas was charged, provides;
(g) Assaults a law enforcement officer or other employee of a law...
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