Appeal from Superior Court of King County. Docket No: 94-1-02345-1. Date filed: 03/27/95. Judge signing: Hon. Arthur E. Piehler.
Authored by Ann L. Ellington. Concurring: Visiting Judge H. Joseph Coleman
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Police officers were at an apartment building to investigate a complaint. Brian Jones approached and wanted to go inside an apartment which belonged to his aunt. A confrontation ensued, and Jones was charged with assaulting two of the officers. Jones was convicted of one count of third degree assault.
Thereafter, the Supreme Court ruled in State v. Byrd, 125 Wash. 2d 707, 887 P.2d 396 (1995), that in assault cases, the jury should receive an instruction which was not given to Jones' jury. Jones therefore seeks reversal. While failure to give the instruction was error under Byrd, given the facts and theories of this case the error was harmless, and we affirm.
Facts/Procedure Four officers investigating a drug complaint were at the door of Jones' aunt's apartment. Jones approached in an agitated fashion and attempted to go inside. After a confrontation, Jones was arrested and charged with third degree assault against Officers Parton and Myers.
At trial, three officers and Jones testified. The court instructed the jury, giving standard assault instructions, including the following:
An assault is an intentional touching or striking or cutting of the person or body of another, regardless of whether any actual physical harm is done to the other person.
An assault is also an intentional act, with unlawful force, which creates in another a reasonable apprehension and fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
The instructions were not objected to. The jury concluded Jones assaulted Parton, but could not reach a verdict as to the charge of assault on Myers.
After Jones' trial, the Washington State Supreme Court held that an essential element of second degree assault by creation of fear of injury is not just actual creation of fear of injury, but intent to do so. The court found the standard instruction defining assault by means of creation of fear (identical to that given here) to be deficient because it fails to inform the jury of the intent requirement and thereby unconstitutionally relieves the State of part of its burden of proof of an essential element of the crime. Byrd, 125 Wash. 2d at 713-14. Thus, failure to give the Byrd instruction properly defining assault by creation of fear was error.
Reversal is required unless the error was harmless.
An error of instruction which relieves the State of its burden of proof is of constitutional magnitude. State v. Byrd, 72 Wash. App. 774, 782, 868 P.2d 158 (1994), affirmed, 125 Wash. 2d 707, 887 P.2d 396 (1995). Thus, reversal is required unless the error is harmless beyond a ...