Opinion
No. 21578-4-III.
Filed: February 5, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-01400-4. Judgment or order under review. Date filed: 11/13/2002.
Counsel for Appellant(s), Donald G. Miller, Attorney at Law, 422 W Riverside Ave Ste 518, Spokane, WA 99201-0302.
Counsel for Respondent(s), Frank Alan Grigaliunas, Spokane County Prose Atty Ofc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Robert D. Pagel appeals his conviction for third degree assault against Officer Michael Roberge. He contends there was insufficient evidence for the jury to find he intended to assault a police officer. We affirm.
Police officers received a report of domestic violence at Mr. Pagel's Spokane residence on May 12, 2002. They went to the house and heard screaming inside. Officer Roberge went to the front door and Officer Bart Stevens went to the back. Mr. Pagel ran out the back door, and Officer Stevens placed him in handcuffs and escorted him to the patrol car.
Before he could be put inside the car, Mr. Pagel began hitting his head on the trunk. He then started walking back to the house. When Officer Stevens told him to stop, Mr. Pagel turned, lowered his head, and charged and struck the officer. Officer Roberge and another officer then joined the fracas, during which Officer Roberge placed Mr. Pagel in a neck restraint. Officer Roberge testified Mr. Pagel kicked him several times during the struggle.
Mr. Pagel was charged with two counts of third degree assault, committed against Officers Stevens and Roberge, and one count of fourth degree assault, committed against Mr. Pagel's wife, Michelle Pagel.
At trial, Mr. Pagel testified he kicked his legs to stop the choking because he thought the officers were killing him.
A jury found Mr. Pagel guilty of assaulting the officers but not guilty of assaulting Ms. Pagel.
The sole issue on appeal is whether the evidence was sufficient to find Mr. Pagel assaulted Officer Roberge. We must view the evidence in a light most favorable to the State and must examine whether any rational factfinder could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). We must draw all reasonable inferences in the State's favor and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).
The jury here was instructed that assault is `an intentional touching or striking of another person.' Clerk's Papers at 54. This is the definition of assault by actual battery, which is a general intent crime. See State v. Daniels, 87 Wn. App. 149, 155, 940 P.2d 690 (1997), review denied, 133 Wn.2d 1031 (1998). To prove assault by battery, the State is not required to prove `intent to inflict substantial bodily harm or cause apprehension.' Id. It is required to prove only that the defendant intended `to do the physical act constituting assault.' State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000), review denied, 143 Wn.2d 1023 (2001).
Mr. Pagel contends in part that he did not intend to kick or harm Officer Roberge, because he was only attempting to prevent them from killing him. Whether he intended to harm or even to strike Officer Roberge, however, it is undisputed that he intended to kick. He thus intended to do the physical act that constituted the assault on Officer Roberge. The evidence was sufficient to find the requisite general intent.
Mr. Pagel also contends his actions were a lawful resistance to Officer Roberge's improper neck restraint. The jury was instructed that a person has the right to resist arrest if he is in actual and imminent danger of serious injury. See State v. Valentine, 132 Wn.2d 1, 21, 935 P.2d 1294 (1997) (if faced with more than loss of freedom, person may use reasonable and proportional force to resist unlawful arrest). However, the jury also was instructed that a person may not provoke a response that creates the necessity for acting in self-defense. Even if the jury reasonably could have found Officer Roberge's neck restraint to be improper and dangerous, it also reasonably could have found that Mr. Pagel was the aggressor who provoked the fracas and thereby created the necessity for acting in self-defense. A rational jury thus could have found Mr. Pagel guilty of assaulting Officer Roberge, even if the neck restraint was improper.
The conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and KURTZ, J., Concur.