State v. Tunney , 129 Wash. 2d 336 ( 1996 )

Johnson, J.

— Barry M. Tunney was convicted of third degree assault of a police officer in King County. He challenges the sufficiency of the information for the first time on appeal, arguing it was defective because the Prosecutor omitted the necessary common law element that Mr. Tunney knew his victim was a police officer performing his official duties. The Court of Appeals affirmed the conviction, State v. Tunney, 77 Wn. App. 929, 895 P.2d 13 (1995), and we granted review. We hold the element that Mr. Tunney knew the victim was a police officer can be fairly implied from the information, and Mr. Tunney was not prejudiced by the failure of the Prosecutor to plainly state the knowledge element. We affirm.

While in uniform and on foot patrol in the Pike Place Market area of Seattle, Officers Shelton and Williams observed Mr. Tunney yell at a woman and shove her into a wall. They approached Mr. Tunney, who had a bottle of wine in hand, and Officer Shelton requested his identification. When Mr. Tunney reached for his identification, Officer Shelton observed what turned out to be an ice pick in the inside pocket of his jacket. Officer Shelton grabbed Mr. Tunney’s arm to prevent him from reaching the ice pick. Mr. Tunney punched Officer Shelton in the arm in response, and a struggle ensued during which Mr. Tunney struck Officer Shelton in the face. Mr. Tunney managed to break away from the officers but was apprehended moments later.

The King County Prosecuting Attorney charged Mr. Tunney with assault in the third degree, RCW 9A.36.031(1)(g).¹ The charge stated:

That the defendant BARRY MICHAEL TUNNEY in King County, Washington on or about October 2, 1992, did assault Officer David Shelton of the Seattle Police Department, a law enforcement officer who was performing official duties at the time of the assault;

Contrary to RCW 9A.36.031(l)(g), and against the peace and dignity of the State of Washington.

Clerk’s Papers at 15. In addition to the statutory elements of RCW 9A.36.031(l)(g), the Court of Appeals has held that knowledge the victim is a police officer performing his or her official duties is an essential element of the crime. State v. Allen, 67 Wn. App. 824, 827, 840 P.2d 905 (1992). The Prosecutor omitted knowledge of the victim’s status from the charge.

Mr. Tunney was convicted and sentenced to 22 months’ confinement. His only defense at trial was the stop was unlawful. He has raised the sufficiency of the information for the first time on appeal.

The issue of whether knowledge the victim is a police officer is an essential element of the crime is not before us. RAP 13.7(b).² Assuming knowledge the victim is a police officer is an essential element of the crime, the issue is whether the information is constitutionally defective because that element was omitted.

The Sixth Amendment³ and Const. art. I, § 22 (amend. 10)⁴ require inclusion in the charging document of the essential elements, statutory and otherwise, of the crime charged so as to apprise the defendant of the charges against him and to allow him to prepare his defense. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991); State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992) . In Kjorsvik we abandoned the traditional analysis applied under Const, art. I, § 22 (amend. 10) and adopted an analysis consistent with the federal standard of review for sufficiency of information challenges raised for the first time on appeal. That analysis requires us to determine whether the information is sufficient by asking: (1) do the necessary elements appear in any form, or by fair construction can they be found, in the information; and, if so, (2) can the defendant show he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice. Kjorsvik, 117 Wn.2d at 105-06. The first prong requires at least some language in the information giving notice of the missing element. Kjorsvik, 117 Wn.2d at 106.

We have applied the "fair construction” rule in two recent cases. In Hopper, the information charged second degree assault but omitted the statutory element of "knowingly.” Hopper, 118 Wn.2d at 154. The information read in part:

That the defendant... on or about June 30, 1988 did assault Officer D. Shelton, a human being, with a deadly [sic] weapon, and other instrument or thing likely to produce bodily harm, to-wit: a flashlight; . . .

Hopper, 118 Wn.2d at 154. We held "knowingly” could be fairly implied from the word "assault” because "assault” contains within it the concept of knowing conduct when construed liberally. Hopper, 118 Wn.2d at 159. Similarly, in Kjorsvik, we held the nonstatutory intent to steal element of first degree robbery could be fairly implied from the allegation that the defendant "unlawfully, with force, and against the baker’s will, took the money while armed with a deadly weapon.” Kjorsvik, 117 Wn.2d at 110. In contrast, the strict construction rule requires dismissal of the charge if any statutory or nonstatutory element of the crime is omitted from the charge. See State v. Holt, 104 Wn.2d 315, 320, 704 P.2d 1189 (1985); see also State v. Leach, 113 Wn.2d 679, 686-90, 782 P.2d 552 (1989).

In this case, the information omitted the element that Mr. Tunney knew the victim was a police officer. We agree with the Court of Appeals that the information was nonetheless sufficient under the liberal construction rule because knowledge of the victim’s status can be fairly-implied from the information. An information that alleges assault can be fairly construed as also alleging the mental element of intent or knowledge. Hopper, 118 Wn.2d at 158-59. When the crime is defined by an act and result, as in this case, the mental element relates to the result as well as the act. Here, the mental element (knowledge) relates to both the act (assault) and the result (assault of a police officer). Moreover, the charge specifically refers to the victim’s status in three separate places and states the victim was "a law enforcement officer who was performing official duties at the time of the assault.” Clerk’s Papers at 15. It can be fairly implied from the references to the victim as a police officer and the use of the term assault that knowledge of the victim’s status is an element of the crime. Under the liberal construction, Mr. Tunney was given sufficient notice of the charge. Accord Allen, 67 Wn. App. at 829.

Mr. Tunney argues the Court of Appeals decision conflicts with State v. Simon, 120 Wn.2d 196, 840 P.2d 172 (1992) (per curiam). In Simon, we reversed a conviction on the basis of a defective information where the information alleged the defendant,

did knowingly advance and profit by compelling Bobbie J. B. . . by threat and force to engage in prostitution; and did advance and profit from the prostitution of Bobbie B. . ., a person who was less than 18 years old; . . .

Simon, 120 Wn.2d at 197-98. We held the information omitted the necessary element that the defendant knew the victim was under 18 and this element could not be fairly implied under Kjorsvik because "[n]o one of common understanding reading the information would know that knowledge of age [was] an element of the charge of promoting prostitution of a person under 18.” Simon, 120 Wn.2d at 199. We implied, however, that had knowledge appeared in the second clause of the information; that is, had the second clause read "did knowingly advance,” a person of common understanding would have understood knowledge of the age of the victim was an element of promoting prostitution of a person under 18. See Simon, 120 Wn.2d at 199. The information in this case is no different from the information in Simon had the second clause of the information read "did knowingly advance.” For this reason, Simon does not conflict with our resolution of this case.

Because knowledge the victim was a police officer can be fairly implied from the information, we now turn to the prejudice prong of the Kjorsvik standard. Mr. Tunney was not prejudiced because, among other things, he admitted knowing the victim was a police officer performing his official duties at the time of the assault⁵ and his only defense at trial was that the stop was unlawful.

We affirm.

Durham, C.J., and Dolliver, Smith, Guy, and Talmadge, JJ., concur.

1 "(1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first degree:

"(g) Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault.”

2 Commentators have pointed out that this aspect of Allen (and not Tunney) is questionable because the mental element for assault is the intent to commit a battery or to create apprehension of harm, not the intent to accomplish some further goal. See 13A Seth A. Fine, Wash. Prac., Criminal Law § 404 (Supp. 1996). Federal and state court decisions interpreting similar statutes vary depending on the wording of the statute. See, e.g., United States v. Feola, 420 U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975) (holding awareness of officer’s status is not an element of assault of a federal officer); Commonwealth v. Flemings, 539 Pa. 404, 652 A.2d 1282 (1995) (same result under state law); but see State v. Morey, 427 A.2d 479 (Me. 1981) (knowledge is an element); State v. Moll, 206 N.J. Super. 257, 502 A.2d 87 (knowledge is an element), cert. denied, 103 N.J. 498, 511 A.2d 670 (1986); People v. Pineiro, 116 A.D.2d 599, 497 N.Y.S.2d 460 (N.Y. App. Div. 1986) (same).

3 U.S. Const, amend. VI provides in part: "In all criminal prosecutions, the accused shall... be informed of the nature and cause of the accusation; . . .”

4 Const. art. I, § 22 (amend. 10) provides in part: "In criminal prosecutions the accused shall have the right... to demand the nature and cause of the accusation against him, . . .”

5 "Q. You did know they were police officers, didn’t you?

"A. Of course I did.”

Report of Proceedings at 359.