Opinion
No. 37813-2-II.
May 12, 2009.
Appeal from a judgment of the Superior Court for Mason County, No. 08-1-00044-3, Toni A. Sheldon, J., entered May 30, 2008.
Reversed and remanded by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Armstrong, JJ.
UNPUBLISHED OPINION
A jury found Andrew Tallett guilty of first degree burglary, third degree assault, indecent liberties, and fourth degree assault, based on evidence that he refused to leave his former wife's residence, punched her in the face, hit their 11-year-old son, removed his ex-wife's pants and underpants, and touched her vaginal area in their son's presence. Tallett appeals only the third degree assault conviction. He argues that the trial court should not have allowed that charge to go to the jury because there was insufficient evidence to show that he had used a weapon, instrument, or thing, as required by RCW 9A.36.031(1)(d). We find no clear legislative intent to treat hands or fists as weapons or things for the purposes of assault, and reverse the conviction and remand for resentencing on the other convictions.
A commissioner of this court considered the matter pursuant to RAP 18.14 and referred it to a panel of judges.
FACTS
On the afternoon of January 20, 2008 Danya Diaz-Tallett came home to find Tallett watching television with their son, Andrew. She went into her bedroom and closed the door to change her clothes. Tallett followed. Diaz-Tallett noticed that Tallett had been drinking and told him to get out of her bedroom. When he refused, she told him he needed to leave the house. Instead, he took a shower, then confronted her again, pushed her onto her bed, climbed on top of her, and punched her several times in the face, while pressing down on her neck with his forearm, making it hard for her to breathe. Andrew heard his mother's cries and tried to help her. When that failed, he tried to call 911, but Tallett followed him and hit him several times. Diaz-Tallett, too, called 911. In the middle of her call, Tallett wrestled the phone from her hand and disconnected the call. He then removed her pants and touched her vaginal area.
ANALYSIS
The State charged Tallett under RCW 9A.36.031(1)(d), which provides that a person is guilty of third degree assault when, with criminal negligence, he or she "causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm." Tallett argues that his hands and fists do not constitute weapons, instruments, or things under the statute.
A "weapon" is "an instrument of offensive or defensive combat, or anything used, or designed to be used, in destroying, defeating, threatening, or injuring a person." Black's Law Dictionary 1479 (6th ed. 1991). An "instrument" is commonly defined as a "means whereby something is achieved, performed, or furthered." Webster's Third New Int'l Dictionary 1172 (2002); see also State v. Hoeldt, 139 Wn. App. 225, 229, 160 P.3d 55 (2007). A weapon does not have to be an inanimate object. Hoeldt, 139 Wn. App. at 229-30 (holding that a dog could be a dangerous weapon). Under these definitions, a fist could be considered to be a weapon.
However, construing an earlier statute, Rem. Rev. Stat. § 2414, our supreme court has held to the contrary. In State v. Johnson, 23 Wn.2d 751, 752-53, 162 P.2d 440 (1945), Johnson was convicted of second degree assault for striking the victim with his fists and breaking her jaw. Johnson argued that the jury should have been instructed on third degree assault (the equivalent of our current fourth degree assault). Johnson, 23 Wn.2d at 752-53. The court upheld the conviction because the provision under which he was charged, Rem. Rev. Stat. 2414(3), provided for conviction on the basis of grievous bodily harm, inflicted "with or without a weapon" Johnson, 23 Wn.2d at 753. In State v. Donofrio, 141 Wash. 132, 250 P. 951 (1926), the defendant was charged under Rem. Rev. Stat. 2414(4), which applied to an assault committed with "a weapon or other instrument or thing likely to produce bodily harm." The Donofrio court held that under the evidence presented, the jury might have found that defendant struck the victim only with his fist or hand, and the trial court therefore erred in failing to instruct on third degree assault. Donofrio, 141 Wash. At 137-38.
Presumably aware of these interpretations, the legislature has continued to use precisely the same language from Rem. Rev. Stat. 2414(4) in RCW 9A.36.031(1)(d). When the legislature does not amend a statute after judicial construction of it, the legislature is presumed to agree with that construction. State v. Bradshaw, 152 Wn.2d 528, 535, 98 P.3d 1190 (2004); State v. Edwards, 84 Wn. App. 5, 12-13, 924 P.2d 397 (1996).
In fact, the Johnson and Donofrio interpretations seem most consistent with the legislature's intent. RCW 9A.36.031 makes a clear distinction between assaults with weapons and those that do not involve weapons. If no weapon is used, and there is no other aggravating factor, the harm inflicted must be greater in order to constitute third degree assault. Compare RCW 9A.36.031(1)(d) (simply requiring bodily harm) with RCW 9A.36.031(1)(f) (requiring bodily harm that includes "substantial pain that extends for a period sufficient to cause considerable suffering"). Presumably, the distinction is based on the premise that there is greater potential for harm, and thus, greater culpability when the defendant has armed himself or herself. The distinction has no purpose unless "weapons" are limited to those things that a person has discretion to possess.
Finally, we note that even if we do not consider Johnson and Donofrio controlling, or the legislative intent clear, RCW 9A.36.031(1)(d) is ambiguous, and must under the rule of lenity, be interpreted in Tallett's favor. State v. Lively, 130 Wn.2d 1, 14, 921 P.2d 1035 (1996); In re Pers. Restraint of Seitz, 124 Wn.2d 645, 651-52, 880 P.2d 34 (1994).
We hold that as used in RCW 9A.36.031(1)(d), the terms "weapon," "instrument," and "thing" do not include hands or fists. There was no evidence that Tallett used anything else in the assault on his former wife. We accordingly reverse the conviction of third degree assault and remand for resentencing on the other convictions.
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.
BRIDGEWATER, J. and ARMSTRONG, J., concur.