State v. Valentine
| Decision Date | 01 September 1994 |
| Docket Number | No. 12628-5-III,12628-5-III |
| Citation | 75 Wn.App. 611,879 P.2d 313 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Ronald Floyd VALENTINE, Appellant. Panel One |
Neil H. Korbas, Deputy Prosecutor, Spokane, for respondent.
Ronald F. Valentine appeals his conviction on one count of third degree assault. He contends two jury instructions relieved the State of the burden of proving every element of the crime beyond a reasonable doubt and amounted to comments on factual issues. We affirm.
On May 16, 1990, at 1 p.m., Officer Richard Robinson called Officer John Moore at the Crime Prevention Center in When the car turned right without signaling, Officer Moore radioed Officer Robinson that he was going to stop the car for failure to signal. Officer Moore was driving an unmarked car. Although he turned on his dash-mounted blue light and beeped his horn, Mr. Valentine did not pull over for 4 blocks.
downtown Spokane. Officer Robinson had noticed a suspicious-looking 1 person wearing a black coat on a downtown street corner and asked Officer Moore to see if he knew the man. Officer Moore drove to the site and saw a man (Mr. Valentine) with a black coat get into a car and drive away. The officer followed.
After he had followed the car for about a block, Officer Moore recognized it as Mr. Valentine's. Officer Moore had issued him two notices of infraction for failure to have a front license plate, one 4 days earlier and another a month earlier. Each of these notices had been signed willingly on those occasions, although Officer Moore testified Mr. Valentine had been "less than cooperative".
The officer broadcast on the police radio he thought he was following Mr. Valentine and the car was not stopping. After Mr. Valentine pulled over, Officer Moore parked behind Mr. Valentine's car, Officer Robinson pulled in behind Officer Moore, and a third police vehicle, containing Officer Jay Jones, arrived and parked in a lot nearby.
Officer Moore, carrying a note pad and his portable radio, approached Mr. Valentine and asked for his driver's license. The officer later testified he usually took notes when he questioned a driver and then went back to his car to write the infraction notice in his ticket book. Officer Robinson walked to the right side of the car and began questioning the two passengers. 2
At first, Mr. Valentine refused to give Officer Moore his driver's license and complained he was being harassed Officer Moore told Mr. Valentine he was under arrest for failure to cooperate and for failure to sign a notice of infraction. He also told Mr. Valentine his car would be towed. In response, Mr. Valentine walked back to his car door, opened it and reached inside. He testified he told Officer Moore he was going to lock his car since it was going to be impounded. Both Officer Robinson and Officer Jones saw Mr. Valentine push the button to roll up his window. Thinking Mr. Valentine was trying to get into the car, Officers Moore and Robinson each grabbed one of his arms and pulled. Mr. Valentine testified he heard Officer Moore say "Let's get him now."
because he was black. On the third request, Mr. Valentine got out of his car and handed the officer his driver's license and car registration. Officer Moore remembered from the previous stop that Mr. Valentine's address on the license was not current and asked for his new address. Mr. Valentine cursed and told the officer to look it up. Officer Moore testified that when he asked Mr. Valentine if he was going to cooperate and sign the notice of infraction, the answer was an emphatic "no". Officer Jones testified he heard Mr. Valentine say "I am cooperating", and "I even have the front plate on the car". At this point, Mr. Valentine walked to the front of the car. Another police car, containing Detective Robert Webb, arrived.
Mr. Valentine spun around and punched Officers Moore and Robinson in their faces. 3 Officer Moore, who was injured, retreated, and Officer Jones and Detective Webb then entered the scuffle. A fifth officer, Sergeant Michael Yates, arrived and joined in. Sergeant Yates was investigating the scene because he had argued with Mr. Valentine the day before at a tavern. 4 As Sergeant Yates entered the melee, he felt Mr. Valentine tug on his gun holster. Although he guessed the movement might have been inadvertent, the sergeant He was charged with two counts of third degree assault against Officers Moore and Robinson. In his defense, Mr. Valentine denied he threw the first punch and insisted he used reasonable force to protect himself from an illegal arrest constituting police assault. On March 6, 1992, the jury returned a verdict of guilty to count 1 involving Officer Moore and a verdict of not guilty to count 2 involving Officer Robinson. Mr. Valentine, who had no prior criminal history, was sentenced to 60 days within a standard range of 1 to 3 months. This appeal followed.
decided to get the situation under control. While Detective Webb tried to twist Mr. Valentine's arm behind his back, Sergeant Yates applied a "carotid hold" to Mr. Valentine's neck. Soon Mr. Valentine slumped to the ground. He was cuffed and taken to jail, where the jail nurse supervisor refused to admit him because of his injuries. After 4 hours of treatment at a hospital emergency room, Mr. Valentine received and [879 P.2d 316] signed a notice of infraction and was booked into jail.
Mr. Valentine's assignments of error are limited to challenges to the jury instructions included and excluded by the court.
Mr. Valentine first contends jury instruction 17, defining reasonable resistance to unlawful arrest, contains a provision unsupported by the evidence and shifts the State's burden of proof on an essential element of the case. Instruction 17 provides:
A person unlawfully arrested by an officer may resist the arrest; the means used to resist an unlawful arrest must be reasonable and proportioned to the injury attempted upon the party sought to be arrested. The use of force to prevent an unlawful arrest which threatens only a loss of freedom, if you so find, is not reasonable.
(Italics ours.) Mr. Valentine disputes only the emphasized sentence above.
Jury instructions must not be misleading, must permit a party to argue his or her theory of the case and, when read as a whole, must properly inform the trier of fact on the law. State v. Dana, 73 Wash.2d 533, 536-37, 439 P.2d 403 (1968); State v. Gibson, 32 Wash.App. 217, 222, 646 P.2d 786, review denied, 97 Wash.2d 1040 (1982). "An instruction on any issue or theory which is unsupported by the evidence is improper." Gibson, at 223, 646 P.2d 786.
It is prejudicial error to submit a theory to the jury in the absence of evidence to support the theory. State v. Hughes, 106 Wash.2d 176, 191, 721 P.2d 902 (1986). Substantial evidence is evidence sufficient to convince a fair-minded person of the truth of the declared premise. Caruso v. Local 690, Int'l Bhd. of Teamsters, 107 Wash.2d 524, 530, 730 P.2d 1299, cert. denied, 484 U.S. 815, 108 S.Ct. 67, 98 L.Ed.2d 31 (1987).
Mr. Valentine was charged with violating RCW 9A.36.031(1)(g), 5 which provides that a person is guilty of third degree assault if he or she "[a]ssaults a law enforcement officer ... who was performing his or her official duties at the time of the assault." During the process of a lawful arrest, an arrestee or an interested third party may not use force against the arresting officer unless the arrestee can show he or she was in actual danger of serious injury. State v. Holeman, 103 Wash.2d 426, 430, 693 P.2d 89 (1985); State v. Ross, 71 Wash.App. 837, 843, 863 P.2d 102 (1993); State v. Smits, 58 Wash.App. 333, 341, 792 P.2d 565 (1990). In the event an arrest is unlawful, however, the arrestee has the right to resist as long as the resistance is reasonable and proportioned to the injury threatened. State v. Hornaday, 105 Wash.2d 120, 131, 713 P.2d 71 (1986); State v. Crider, 72 Wash.App. 815, 820, 866 P.2d 75 (1994). The use of force to prevent an unlawful arrest which threatens only a loss of freedom, however, is not reasonable. Crider, at 820, 866 P.2d 75; Seattle v. Cadigan, 55 Wash.App. 30, 37, 776 P.2d 727, review denied, 113 Wash.2d 1025, 782 P.2d 1069 (1989). Some courts have ruled that the Whether or not the arrest here was lawful, Mr. Valentine did not have the right to resist with force unless he was threatened with at least more than a mere loss of freedom. Crider, 72 Wash.App. at 820, 866 P.2d 75. The record shows that Officer Moore told Mr. Valentine he was under arrest; Mr. Valentine responded by walking away from the officer, opening his car door and reaching inside. Both Officer Moore and Officer Robinson testified they grabbed Mr. Valentine because they feared he was attempting to avoid arrest by getting in his car. Sufficient evidence was presented to the jury to find that Mr. Valentine was threatened only with a loss of freedom and he therefore had no right to use force. Caruso, 107 Wash.2d at 530, 730 P.2d 1299.
Holeman standard requiring actual threat of serious bodily injury applies to both lawful and unlawful arrests under RCW 9A.36.031(1)(g). Ross, 71 Wash.App. at 842-43, 863 P.2d 102; Smits, 58 Wash.App. at 341, 792 P.2d 565.
Mr. Valentine next contends the phrase "if you so find" in instruction 17 removes the State's burden to prove Mr. Valentine's lack of reasonableness beyond a reasonable doubt. He asserts this phrase allows the jury to find lack of reasonableness--and therefore an unlawful use of force to resist unlawful arrest--with only a scintilla of evidence. In effect, he argues, the sentence creates an irrebuttable presumption regarding the element of reasonable force: if the jury finds, even by a mere preponderance of the evidence, the...
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