664 P.

2d 1259 Page 1
35 Wash.App. 13, 664 P.2d 1259
(Cite as: 35 Wash.App. 13, 664 P.2d 1259)

State must establish that officer's action in

apprehending or detaining the defendant was lawful
Court of Appeals of Washington, in order to establish offense of third-degree assault.
Division 1. West's RCWA 9A.36.030.

STATE of Washington, Respondent, [2] Arrest 35 63.1

v.
John D. HOFFMAN, Appellant. 35 Arrest
     35II On Criminal Charges
No. 10876–0–I.            35k63 Officers and Assistants, Arrest Without
April 27, 1983. Warrant
               35k63.1 k. In general. Most Cited Cases
Defendant was convicted in the Superior Court,
Snohomish County, John Rutter, Jr., J., of third- Assault and Battery 37 67
degree assault and second-degree malicious mischief.
Defendant appealed. The Court of Appeals, Swanson, 37 Assault and Battery
J., held that: (1) because defendant's arrest for      37II Criminal Responsibility
refusing to identify himself to a law enforcement            37II(A) Offenses
officer was unlawful, he could not be convicted of                37k62 Defenses
third-degree assault for resisting that arrest; (2) an                      37k67 k. Self-defense. Most Cited
instruction which erroneously told jury that Cases
defendant's arrest was lawful prejudicially affected
the malicious mischief charge; and (3) evidence on
Arrest of defendant for refusing to give law
the malicious mischief charge was sufficient for the
enforcement official his name was unlawful and he
jury.
could not be convicted of third-degree assault for
resisting that arrest; however, if defendant's use of
Reversed and remanded. force was not reasonable, he might be convicted of
simple assault. West's RCWA 9A.36.030, 9A.76.020.
West Headnotes
[3] Arrest 35 63.4(5)
[1] Assault and Battery 37 80
35 Arrest
37 Assault and Battery      35II On Criminal Charges
     37II Criminal Responsibility            35k63 Officers and Assistants, Arrest Without
           37II(B) Prosecution Warrant
               37k73 Indictment or Information                35k63.4 Probable or Reasonable Cause
                     37k80 k. Issues, proof, and variance.                      35k63.4(5) k. Nature of offense; felony
Most Cited Cases or misdemeanor. Most Cited Cases

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664 P.2d 1259 Page 2
35 Wash.App. 13, 664 P.2d 1259
(Cite as: 35 Wash.App. 13, 664 P.2d 1259)

Defendant could not be arrested for refusing to In prosecution for third-degree assault and
give law enforcement officer his name pursuant to second-degree malicious mischief, erroneous
statute prohibiting obstruction of public servant in instruction that arrest was lawful as matter of law
discharge of his official powers. West's RCWA prejudicially affected malicious mischief charge, in
9A.76.020(3). that, because of instruction which erroneously told
jury that he was lawfully arrested, defendant was
[4] Assault and Battery 37 67 unable to argue that he did not act maliciously when
he damaged police car, but was merely resisting
unlawful arrest. West's RCWA 9A.04.110(12).
37 Assault and Battery
     37II Criminal Responsibility
           37II(A) Offenses [6] Criminal Law 110 1163(4)
               37k62 Defenses
                     37k67 k. Self-defense. Most Cited 110 Criminal Law
Cases      110XXIV Review
           110XXIV(Q) Harmless and Reversible Error
Assault and Battery 37 95                110k1163 Presumption as to Effect of
Error; Burden
                     110k1163(4) k. Instructions in general.
37 Assault and Battery
Most Cited Cases
     37II Criminal Responsibility
           37II(B) Prosecution
               37k93 Trial Erroneous instruction is presumed to have been
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Cases
[7] Malicious Mischief 248 10
Defendant has right to defend himself against
unlawful arrest, but whether he used reasonable force 248 Malicious Mischief
under circumstances is question for jury. West's      248k10 k. Trial. Most Cited Cases
RCWA 9A.36.040.
In prosecution for second-degree malicious
[5] Criminal Law 110 1172.1(3) mischief, evidence was sufficient for jury.

110 Criminal Law *14 **1260 Julie Kesler, Washington Appellate

     110XXIV Review
           110XXIV(Q) Harmless and Reversible Error
               110k1172 Instructions
                     110k1172.1 In General
                         110k1172.1(2) Particular Instructions
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Defender Ass'n, Seattle (Court-appointed), for
appellant.
Seth Dawson, Snohomish County Pros. Atty., Asa
Glazer, Deputy Pros. Atty., Everett, for respondent.
SWANSON, Judge.

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664 P.2d 1259
35 Wash.App. 13, 664 P.2d 1259
(Cite as: 35 Wash.App. 13, 664 P.2d 1259)
John D. Hoffman appeals from a judgment
entered on a jury verdict finding him guilty of third
degree assault and second degree malicious mischief.
*15 An off-duty Snohomish County sheriff
observed a fight which occurred in the early morning
hours in a restaurant in Snohomish County. The
sheriff followed one of the participants outside the
restaurant and detained him. A few minutes later two
Snohomish County sheriff's officers arrived. While
one of the officers was talking to the injured man in
the restaurant, the defendant walked by. The injured
man remarked, “He's the guy that started it.” An
officer approached the defendant and asked him for
identification. When the defendant refused, the
officer informed him that he could be subject to arrest
for obstructing. The defendant again refused and
walked out of the restaurant followed by the officer.
The officer testified that when he attempted to
arrest the defendant for obstructing, the defendant
pulled away and swung at him, and a scuffle ensued
before the defendant was subdued. The defendant
was handcuffed and placed in a police vehicle. He
then began kicking the car door. Eventually the
officers removed the defendant from the vehicle and
placed flex cuffs on his legs. Defendant managed to
free himself and kicked out a rear-door window of
the vehicle. Defendant was eventually handcuffed
again and “hogtied.” Because the defendant
complained of back injury, the officer transported
him to Providence Hospital where he was examined
by a physician before being taken to jail.
The defendant denied assaulting the officers,
claiming that they attacked him. He also claimed that
the reason he kicked and damaged the vehicle was to
gain their attention because of his back injury.
[1] The defendant first contends that the State
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
did not present sufficient evidence to sustain his
conviction for third degree assault pursuant to RCW
9A.36.030 which states:
(1) Every person who, under circumstances not
amounting to assault in either the first or second
degree, shall be guilty of assault in the third degree
when he:
(a) With intent to prevent or resist the execution
of any lawful process or mandate of any court
officer or the *16 lawful apprehension or detention
of himself or another person shall assault another;
Under this statute, the State must establish that
the officer's actions in apprehending or **1261
detaining the defendant were lawful. State v.
Johnson, 29 Wash.App. 307, 628 P.2d 479 (1981);
State v. Humphries, 21 Wash.App. 405, 586 P.2d 130
(1978). In State v. Williams, 29 Wash.App. 86, 89–90,
627 P.2d 581 (1981), the court, in construing RCW
9A.36.030, stated that:
Lawful “apprehension” and “detention” are forms
of an arrest, yet different from mere custody and
arise in situations involving either court process or
any lawfully exercised arrest.
Defendant contends that his arrest for refusing to
identify himself was unlawful because the
obstructing statute under which he was arrested was
later declared to be unconstitutional. We agree.
[2] In State v. White, 97 Wash.2d 92, 640 P.2d
1061 (1982), the supreme court declared that sections
1 and 2 of RCW 9A.76.020 FN1 were unconstitutional.
While the police may briefly detain a suspect based
upon a reasonable suspicion and ask various
questions, including the suspect's identity, “a
detainee's refusal to disclose his name, address, and
other information cannot be the basis of an arrest.”
664 P.2d 1259
35 Wash.App. 13, 664 P.2d 1259
(Cite as: 35 Wash.App. 13, 664 P.2d 1259)
State v. White, supra at 106, 640 P.2d 1061.
Accordingly, the arrest of the defendant for refusing
to give the Snohomish County sheriff his name was
unlawful. See State v. Swaite, 33 Wash.App. 477, 656
P.2d 520 (1982).
FN1. RCW 9A.76.020 provides:
“Every person who, (1) without lawful
excuse shall refuse or knowingly fail to
make or furnish any statement, report, or
information lawfully required of him by a
public servant, or (2) in any such
statement or report shall make any
knowingly untrue statement to a public
servant, ... shall be guilty of a
misdemeanor.”
[3] The State contends that the arrest was lawful
under RCW 9A.76.020(3) which states:
Every person who, ... (3) shall knowingly hinder,
delay, or obstruct any public servant in the
discharge of *17 his official powers or duties; shall
be guilty of a misdemeanor.
Although the defendant used various profanities,
and refused to cooperate with the officer when asked
to give his name, the record does not support the
claim that he hindered, delayed, or obstructed the
officer in the discharge of his official powers or
duties. The arresting officer testified at a pre-trial
hearing that he did not have sufficient information to
arrest the defendant for the assault which occurred in
the restaurant. The officer's testimony, both at the
pre-trial hearing and at the trial, provides only one
basis for the arrest—the defendant's refusal to give
identification. Since our Supreme Court has held that
this conduct cannot constitutionally serve as a basis
for an arrest, we are compelled to hold that the
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
defendant's arrest was unlawful, and under the test of
State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980),
the State failed to prove an essential element of the
charge of third degree assault.
[4] The record shows, however, that the jury was
given a lesser included instruction concerning simple
assault. When viewing the evidence in a light most
favorable to the State, there is sufficient evidence
upon which a rational trier of fact could find the
defendant guilty of simple assault as defined by RCW
9A.36.040. We recognize that the defendant had a
right to defend himself against an unlawful arrest.
State v. Counts, 99 Wash.2d 54, 659 P.2d 1087
(1983); Kennewick v. Keller, 11 Wash.App. 777, 525
P.2d 267 (1974). Whether he used reasonable force
under the circumstances is, however, a question for
the jury. State v. Rousseau, 40 Wash.2d 92, 241 P.2d
447 (1952). The matter is therefore remanded for trial
on the simple assault charge.
The defendant next contends that he should be
granted a new trial on the malicious mischief charge
because of instruction 14 which erroneously told the
jury that his arrest was lawful as a matter of law. The
State concedes that instruction 14 was error. State v.
Hutton, 7 Wash.App. 726, 502 P.2d 1037 (1972). The
issue presented is whether this error prejudicially
affected the malicious mischief *18 charge.
[5][6] The defendant testified that he kicked the
police car because he had a severe pain from a back
injury and surgery **1262 and he wanted to get the
officers' attention to avoid injury. The defendant also
claimed that the officers attacked him. One of the
essential elements of the charge of malicious
mischief is that the defendant acted with malice
which is defined in RCW 9A.04.110(12) to mean “an
evil intent, wish, or design to vex, annoy, or injure
another person.” The defendant contends that because
of the instruction which erroneously told the jury that
664 P.2d 1259 Page 5
35 Wash.App. 13, 664 P.2d 1259
(Cite as: 35 Wash.App. 13, 664 P.2d 1259)

he was lawfully arrested, he was unable to argue that

he had the right to resist an unlawful arrest and that [7] The defendant's final contention is that the
the jury may have found that he acted maliciously charge of *19 malicious mischief should be
because he destroyed property while in lawful dismissed because the State did not present sufficient
custody. Although the charges of assault and evidence that he was guilty of second degree
malicious mischief were separate, they were closely malicious mischief. We disagree.
connected in time and were part of the same incident.
The defendant, who was unlawfully in custody,
The test under Green, supra, for determining
should have been permitted to argue that he did not
whether there is sufficient evidence is whether, in
act maliciously when he destroyed the property, but
reviewing the evidence in a light most favorable to
was merely resisting the unlawful arrest. Because
the State, any rational trier of fact could have found
instruction 14, however, erroneously told the jury that
the defendant guilty beyond a reasonable doubt.
the defendant was in lawful custody, he was
Here, the jury could disbelieve the defendant and find
precluded from arguing this theory. Further, the fact
that even if his arrest was unlawful, he knowingly
that a person destroys property while in lawful
and maliciously caused a substantial risk of
custody may be probative of whether the person
interruption or impairment of service to the public by
acted maliciously. The jury may have erroneously
physically damaging or tampering with an emergency
inferred that the defendant acted maliciously because
vehicle as required by RCW 9A.48.080(1)(b). Thus,
they were told he was in lawful custody. The
there was sufficient evidence upon which the jury
erroneous instruction is presumed to have been
could find the defendant guilty of second degree
prejudicial, and we cannot determine under the facts
malicious mischief.
of this case that it did not affect the jury's
consideration of the malicious mischief charge.FN2
Reversed and remanded. The third degree assault
charge shall be dismissed and a new trial ordered on
FN2. Because of our determination that the
simple assault and second degree malicious mischief.
defendant should be granted a trial on the
malicious mischief charge, we need not
RINGOLD and SCHOLFIELD, JJ., concur.
address the contentions raised for the first
time on appeal that the court's instruction on
malice was error. We note, however, that Wash.App.,1983.
WPIC 2.13 defining malice has been revised State v. Hoffman
in light of State v. Simmons, 28 Wash.App. 35 Wash.App. 13, 664 P.2d 1259
243, 622 P.2d 866 (1980), and State v.
Johnson, 23 Wash.App. 605, 596 P.2d 1047 END OF DOCUMENT
(1979).

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