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State v. Johnston

April 1, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
BARBARA ANN JOHNSTON, GEORGE RAYMOND ZIMMERMAN, APPELLANTS.



Appeal from Superior Court of Spokane County. Docket No: 95-1-00698-2. Date filed: 07/19/95. Judge signing: Hon. Thomas E. Merryman.

Authored by John A. Schultheis. Concurring: Dennis J. Sweeney, Stephen M. Brown.

The opinion of the court was delivered by: Schultheis

SCHULTHEIS, J. George Zimmerman and Barbara Johnston appeal their convictions for assaulting a Mervyn's employee who tried unsuccessfully to apprehend Mr. Zimmerman for shoplifting. Ms. Johnston, who drove the getaway car, challenges the sufficiency of the evidence, contends she was prejudiced because the information did not specify whether she was being charged as a principal or an accomplice, and contends the court should have instructed the jury she had a right to reasonably resist unlawful arrest. Mr. Zimmerman's attorney filed an Anders *fn1 brief and moved to withdraw. We grant the motion and affirm both convictions.

In May 1995 Mr. Zimmerman and his wife, Ms. Johnston, were charged with third degree assault for intentionally assaulting Brandi VanHorn with intent to prevent or resist the lawful apprehension or detention of themselves. The evidence produced at their June trial established the defendants went to Northtown Shopping Center on April 1 so that Mr. Zimmerman could shoplift to make some money. Ms. Johnston manned their getaway car, which was parked, with the engine running, at an angle in a handicapped parking space so that she could watch the mall entry located between J.C. Penney's and Mervyn's.

Mervyn's security employee Ms. VanHorn saw Mr. Zimmerman pick up a stack of Levis. She became suspicious and positioned herself so he would have to walk past her to get to the exit door. He saw her and ran out the door with the Levis in his arms and Ms. VanHorn in hot pursuit. As he ran toward the car, Mr. Zimmerman dropped the Levis on the sidewalk and yelled at Ms. Johnston "Go, go, go."

Meanwhile, Ms. Johnston backed the car out of the handicap parking space and pulled slowly forward to intercept Mr. Zimmerman. She stopped the car and leaned over to open the passenger door for him. As he neared the car, Ms. VanHorn testified Mr. Zimmerman pulled out a little knife from its place on his belt and turned toward her. She had been cut before and did not want to get hurt, so she just changed directions and veered toward the driver's side, intending to grab onto the driver to try to stop the car from leaving. As she came up on the driver's side, Ms. VanHorn was yelling "Security" or "Security, stop." Then she reached through the open window and grabbed Ms. Johnston by the hair. Mr. Zimmerman jumped into the car and yelled at Ms. Johnston to "Drive the f-in' car" and she responded "She's got my f-ing hair" (or words to similar effect). Their major concern was to get away, so Ms. Johnston stepped on the gas, the car sped forward, and Ms. VanHorn dropped off and hit the ground. She had a clump of Ms. Johnston's hair in her hand. Ms. VanHorn was injured and had to take time off work while her neck and back healed.

The jury found both defendants guilty and they appeal.

No. 15124-7-III

Barbara Ann Johnston

Ms. Johnston challenges the sufficiency of the evidence supporting her conviction. The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992). The claim of insufficiency admits the truth of the State's evidence, and all reasonable inferences must be drawn in favor of the State and interpreted most strongly against the defendant. Id. at 201.

Under RCW 9A.36.031(1)(a), a person is guilty of assault in the third degree if he or she assaults another with intent to prevent or resist the lawful apprehension or detention of himself, herself, or another person.

Ms. Johnston first argues the State did not prove beyond a reasonable doubt that her detention was lawful because there was no evidence that she was committing or attempting to commit theft or shoplifting. Her argument is flawed. Regardless whether detention of Ms. Johnston would be lawful, she could be found guilty if the evidence established she assaulted Ms. VanHorn with intent to prevent the lawful apprehension or detention of Mr. Zimmerman. RCW 9A.36.031(1)(a).

Store security personnel are permitted to detain a suspected shoplifter in a reasonable manner if they have reasonable grounds to believe the person is committing or attempting to commit theft or shoplifting. State v. Miller, 103 Wash. 2d 792, 795, 698 P.2d 554 (1985); RCW 9A.16.080; RCW 4.24.220. There is no question that Ms. VanHorn had "reasonable grounds to believe" Mr. Zimmerman was "committing or attempting to commit theft or shoplifting" and that apprehension or detention of him was lawful. Given the defendants' admissions that Ms. Johnston knew what Mr. Zimmerman was doing and was there to drive the getaway car, and that she accelerated and drove away when he told her to do so, the evidence is sufficient to show she intended to prevent his apprehension or detention.

Ms. Johnston next argues the State did not prove that she assaulted Ms. VanHorn because there is no evidence of ...


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