State v. Billings

2018 Wash. App. LEXIS 1356 (2018)

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Nature of the Case

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Facts

Soden and Frank went to a mobile home park to sell one ounce of marijuana to Wagner. Wagner took the marijuana inside his residence to weigh the product before paying. D arrived on the scene and parked two spaces adjacent to Soden. Soden was seated in the driver's seat and Frank was seated in the passenger seat. D then approached his vehicle from the passenger side while carrying a machete with a two-foot blade. D walked up to the car opened the driver's door and started shouting about some marijuana that had gone missing. D held the machete up and started telling Soden to get out of the car. Soden refused to exit then D tried reaching in and grabbing Soden. Soden resisted and D punched Soden a couple of times in the face. D entered the car and Soden then jumped into the backseat and started reaching for a knife. Soden put his arms up to block his face from the machete and Soden was hit in the wrist as D swing the blade at him. Soden’s write was cut to the bone. Soden fled and Frank remained in the vehicle and called 911. D turned on Frank and tried to pull her out of the car. D grabbed but she kept squirming and D let her go, got back in his car, and left. The machete was found in an alley and D was arrested two days later. P charged D with a second-degree assault with a deadly weapon. At trial, Frank testified the situation scared her, and she was afraid D might hit her “with a machete or do something worse.” A mistrial was declared and a second trial was held. Jury instruction 11 read as follows: “If a person acts with intent to assault another, but the act harms a third person, the actor is also deemed to have acted with intent to assault the third person.” Jury instruction 12 read as follows: An assault is an intentional touching or striking or cutting of another person that is harmful or offensive, regardless of whether any physical injury is done to the person. A touching or striking or cutting is offensive if the touching or striking or cutting would offend an ordinary person who is not unduly sensitive. An assault is also an act done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted. An assault is also an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. P argued that the transferred intent doctrine broadly encompassed unintended victims assaulted by any means, including those put in the apprehension of bodily harm. D argued that the transferred intent doctrine more narrowly encompassed victims that have suffered actual harm. The jury presented a question: “Can intent be transferred to a third party in regards to creating apprehension and fear? P argued that transferred intent is available for all three of the different types of assault because the transferred intent instruction refers to harm. It doesn't refer to bodily harm or physical harm. D argued that transferred intent is limited to situations involving first-degree assault. The court agreed with P and D was convicted and appealed.