State v. BowerState v. Bower
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- Before:
- Ringold
The defendant, Robert W. Bower, appeals a judgment and sentence entered upon his conviction at a jury trial of a violation of
On July 24, 1979, Terrance L. Heminger, a guard at the Washington State Reformatory, was operating a lock box during a 10-minute period in which inmates could move freely in and out of their cells before returning to their morning activities. At this time, according to Heminger‘s testimony, Bower physically attacked and choked him and complained about curtains being removed from his cell. Bower released his hold and Heminger ordered him to leave the cellblock. After Bower refused, Heminger locked the tier, left his post at the lock box and went to the officer‘s desk to write an infraction report. Heminger testified that he was fearful of another attack and, therefore, did not perform his duty to check all cells after closing the lock box. The purpose of the cell check was to ascertain that nobody was harmed and that each cell was locked and contained the proper inmate.
While Heminger was preparing his report, Bower approached him, grabbed the clipboard, ripped up several infraction report forms and threw the clipboard onto the floor. Bower then left the cellblock and Heminger finished his report.
The defense presented testimony by Bower, another inmate and a guard that tended to show a nonviolent confrontation and an overreaction by Heminger. Bower testified to a friendly light squeeze on Heminger‘s neck during a discussion about the curtains. Bower denied choking,
Necessity of Scienter Instruction
Bower contends and the State concedes that
“Threat” was defined by the jury instructions in this case to include “intent“, but the jury did not have to find a threat of force or violence to convict the defendant. The instructions permitted conviction upon a showing that Bower accidentally or carelessly used force that, without any intent or knowledge by Bower, prevented Heminger
State v. Gibson, supra, is distinguishable. The instruction in that case was in conjunctive form, requiring the jury to find aiding and abetting. Because “abet” had a common meaning that included guilty knowledge, the court held that the requisite scienter was before the jury. Here “threat” was defined to include the requisite mental state, but the disjunctive instruction was inadequate to inform the jury that the alternatives of force or violence had to be accompanied by the knowledge or intent that the conduct would prevent the performance of the guard‘s duties.
The parties do not specify the level of culpability required in the mental element of this offense. We believe the defendant must be aware of the result of his conduct before a conviction can be sustained under this statute. He, therefore, must act “knowingly”
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as defined by
Sufficiency of the Evidence
Bower contends that there was insufficient evidence to convict him of the charged offense. He views the testimony as showing nothing more than a momentary contact with Heminger that did not prevent the performance of any duties.
Bower ignores critical portions of the victim‘s testimony. There was evidence that Bower choked Heminger and created such fear in Heminger‘s mind that he could not perform a safety check after closing the lock box. A subsequent safety check would not have fulfilled Heminger‘s duty to protect the inmates immediately after closing the
Lesser Included Offenses
At trial, Bower submitted several requests for instructions on allegedly included offenses. The trial court refused these requests on the theory that the offense charged was specific and unique and was not subject to general offenses as lesser included crimes. On appeal, Bower contends the trial court erred by not instructing the jury on simple assault, malicious mischief and obstructing a public servant. The State responds that the prison statute is specific and supersedes the general crimes submitted by Bower. State v. Cann, 92 Wn.2d 193, 595 P.2d 912 (1979).
To obtain a lesser included offense instruction, two conditions must be satisfied. First, each element of the lesser offense must be a necessary element of the greater offense so that it is impossible to commit the greater offense without also committing the lesser offense. Second, the evidence in the case must support an inference that only the lesser offense was committed.
Malicious mischief,
Simple assault,
Obstructing a public servant,
The State does not dispute the foregoing analysis, but argues that the specific prison statute supersedes the general misdemeanor offense and bars its use in a prison case. The State relies on a line of authority involving offenses that differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
State v. Cann, supra
(misdemeanor criminal solicitation superseded by the felony of promoting prostitution);
State v. Walls,
81 Wn.2d
The question here and in the foregoing cases is one of legislative intent. In
Walls
and
Becker,
a specific misdemeanor superseded a general felony covering the same conduct. Without this construction, the statutes would have denied the equal protection of the law by giving the prosecutor an unlimited option to charge a felony or a misdemeanor for the same act committed under the same circumstances by people in like situations. If both statutes applied, there would be no legislative standard to use in determining which statute to charge.
See State v. Zornes,
78 Wn.2d 9, 475 P.2d 109 (1970);
Olsen v. Delmore,
48 Wn.2d 545, 295 P.2d 324 (1956). To avoid the same problem, specific felonies of conspiracy and solicitation were held to supersede the general conspiracy and solicitation statutes construed in
Cann, Carroll,
and
Langworthy.
This potential constitutional problem was also avoided in
Davis
where the superseded kidnapping statute provided a more severe punishment for the same conduct punished by the more specific hostage taking statute. Former
The foregoing cases represent sound examples of courts adopting an interpretation of statutes that preserves their constitutionality. Reilly v. State, 18 Wn. App. 245, 566 P.2d 1283 (1977); State v. White, 14 Wn. App. 9, 538 P.2d 1235 (1975); see State v. Lunstrum, 19 Wn. App. 597, 576 P.2d 453 (1978). In this case, however, there is no potential constitutional problem. The prosecutor has legislative standards to use in determining which prison inmate should be charged under which statute because more facts have to be proved to convict an inmate of the greater felony offense. State v. Wanrow, 91 Wn.2d 301, 588 P.2d 1320 (1978); State v. Burley, 23 Wn. App. 881, 598 P.2d 428 (1979) . When viewed in the prison context, the two statutes involve separate and distinct crimes. Under these circumstances the appropriate rule of statutory construction is one that gives effect to each statute. When two statutes concern the same subject matter and are not actually in conflict, they should ordinarily be interpreted to give meaning to each, even though one is specific in operation and the other is general. State v. Krieg, 7 Wn. App. 20, 497 P.2d 621 (1972).
Acceptance of the State‘s argument requires a conclusion that the legislature, by adopting a special felony statute, intended to decriminalize the lesser misdemeanor offense when it is committed by a prison inmate against a prison guard. In none of the aforementioned cases cited by the State was there any decriminalization of unlawful conduct.
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Each case involved a more specific statute that preserved
The State cites one case that had the effect of decriminalizing ordinary negligence in the context of a vehicular homicide. In State v. Collins, 55 Wn.2d 469, 348 P.2d 214 (1960), the court held that manslaughter was superseded by negligent vehicular homicide. The conduct in the two offenses was not identical because the required negligence was greater in the vehicular homicide than in ordinary manslaughter. The distinction in Collins is that the court had before it express legislative history clearly revealing an intent to bar the State from pursuing a manslaughter charge in a vehicular homicide case. Absent clear evidence of an intent to decriminalize traditionally criminal conduct, we shall give effect to each statute to allow the prudent exercise of the prosecutorial charging discretion that takes into account the different proof requirements for each offense. State v. Zornes, supra; State v. Krieg, supra.
Reversed and remanded for a new trial.
Williams and Corbett, JJ., concur.
Notes
“Whenever any inmate of a state penal institution . . . shall prevent, or participate in preventing an officer of such institution from carrying out his duties, by force or violence, or the threat thereof, he shall be guilty of a felony ...”
Bower also contends that the amended information does not charge a crime because it omits the element of knowledge or intent. The amended information employs the language in
Proof of intent would be sufficient to prove knowledge.
Force or violence are alternative means of committing the greater offense that necessarily include assault as a lesser offense. It would be reasonable to allow a lesser included offense instruction where some, but not all, means of committing a greater offense necessarily include the commission of a lesser offense. Because the parties have not focused on this issue in their briefing, we reserve this question for a case that squarely presents it for decision.
The opinion in State v. Davis, 48 Wn.2d 513, 294 P.2d 934 (1956), also stated that if kidnapping were not a crime in the context of that case, there could be no conspiracy to kidnap.
A conspiracy to commit the superseded offense would, however, necessarily be eliminated as a crime. State v. Davis, supra; see footnote 5.