Appeal from Superior Court of King County. Docket No: 94-1-04862-3. Date filed: 12/30/94. Judge signing: Hon. Patricia H. Aitken.
Petition for Review Denied May 7, 1997,
PER CURIAM. Demetrius Duncan appeals from the judgment and sentence entered following his conviction of one count of assault in the third degree. Duncan argues for the first time on appeal that the trial court committed reversible error in failing to instruct the jury that to convict him they must not only find that he intentionally touched or struck the victim, but that he intended that the touching or striking be harmful or offensive. We affirm.
In the early morning hours of August 1, 1994, Officer Donnie Lowe was on patrol in the Central District of Seattle. He saw Duncan standing on the corner of 21st and East Madison near some shrubbery. Lowe knew Duncan from prior contacts. Lowe observed another individual leave Duncan and walk into an alley.
Duncan then looked at Lowe, knelt down and stuck his hand into some bushes. Lowe suspected that a narcotics transaction had occurred and decided to investigate. Lowe got out of his marked patrol car and directed Duncan to the car. Lowe attempted to pat Duncan down but Duncan would not stand still.
While trying to control Duncan, Lowe reached for his shoulder radio to inform the dispatch officer of his location. Duncan swung around and hit Lowe in the face with his right fist. Duncan stated "man, I'm not doing this". Duncan then took a fighting stance and came toward Officer Lowe. Duncan began swinging at Lowe. Lowe radioed for fast back-up. Duncan eventually locked his arms around Lowe, but Lowe was able to sweep Duncan off his feet. The two fell to the ground with Lowe on top.
Officers Joseph Fountain and John Crumb arrived on the scene and saw Duncan swinging his fists at Lowe as Lowe tried to avoid the blows. Duncan was finally subdued by the officers and transported to the East Precinct.
Duncan was convicted of one count of assault in the third degree on Officer Lowe. A standard range sentence was imposed.
The jury was instructed in pertinent part that:
An assault is an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive, if the touching or striking would offend an ordinary person who is not unduly sensitive.
Relying on State v. Byrd, 72 Wash. App. 774, 868 P.2d 158 (1994), affirmed, 125 Wash. 2d 707, 887 P.2d 396 (1995), Duncan contends that the court erred in failing to instruct the jury that in order to convict they must be convinced beyond a reasonable doubt that Duncan intended for the touching or striking to be harmful or offensive. Duncan's reliance on Byrd is misplaced.
In State v. Byrd, this court and, subsequently the Supreme Court, reaffirmed the proposition that when an assault prosecution is based upon the theory that the defendant committed an intentional act with unlawful force, which created in another a reasonable apprehension and fear of bodily injury, the State must not only prove that the act was intentional but that the defendant intended to cause apprehension and fear of harm.
Byrd, 72 Wash. App. at 776; see also, State v. Austin, 59 Wash. App. 186, 796 P.2d 746 (1990); State v. Krup, 36 Wash. App. 454, 676 P.2d 507, review denied, 101 Wash. 2d 1008 (1984). The underlying rationale for requiring the State to prove the specific intent to cause ...