State Of Washington, V. Charles Freeman Christian ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80045-1-I
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION
CHARLES FREEMAN CHRISTIAN,
Appellant.
COBURN, J. — A jury convicted Charles Freeman Christian of three
domestic violence crimes: assault in the second degree by strangulation or
suffocation, assault in the fourth degree, and interfering with the reporting of
domestic violence. Christian appeals the assault in the second degree and
interfering convictions. Christian contends the trial court abused its discretion in
denying his motion for mistrial; the trial court violated his constitutional right to
jury unanimity for the assault in the second degree and interfering convictions;
and the State failed to include in its initial charging document, and the trial court
failed to instruct the jury, that the interfering crime contains a mens rea element.
We affirm and hold that interfering with the reporting of domestic violence is a
strict liability crime.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80045-1-I/2
FACTS
Christian and Sharon La Rae Keith were in a romantic relationship and
resided together in Keith’s one-bedroom Lynnwood apartment. On
December 29, 2018, Keith was lying in bed and heard Christian talking on the
phone. Keith heard Christian speak into the phone, “What do you mean you’re
kicking my son out.” Then, Christian left the apartment. Christian returned with
his son, Nigel Christian, and Nigel’s girlfriend. 1
Around 10:00 a.m., Keith asked Christian to leave, and they got into a
verbal argument in the bedroom. Christian went into the living room and told
Nigel, “Wherever I am, you’re welcome, too.” Keith yelled from the bedroom,
“[N]o, he’s not.” Christian yelled to Nigel, “do you see what I’m going through, do
you see what I’m putting up with[?]” Around 12:00 p.m., Keith and Christian
began to argue again. Keith yelled at Christian that she wanted him and Nigel to
leave.
Keith grabbed her cell phone and walked towards the bed. Keith later
testified she wanted to call 911, but Keith did not tell Christian that was why she
grabbed the phone. According to Keith, while walking to the bed, Christian
yelled, “bitch, give my phone back,” and tried to grab the phone out of Keith’s
hands. According to Christian, he grabbed for Keith, not because he was
1Because Christian and his son share a last name, we refer to Nigel by
his first name for clarity. Neither Nigel nor his girlfriend testified at trial.
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No. 80045-1-I/3
reaching for the phone, but because he was trying to get his diamond chain
necklace that he thought Keith held.
Keith held the phone with both hands, laid on top of the phone and her
arms by lying on her stomach on the bed, and began to yell. Christian punched
Keith in the back of the head and continued to grab for Keith’s hand. At some
point, Keith ended up lying on her back. Keith testified that Christian choked her
with both of his hands, and the force with which Christian choked Keith made her
feel as though she could not breathe and would die. 2 Christian got the phone,
stopped choking Keith, and stood up. Christian said to Keith, “I could have just
killed you and I love you and that’s why I didn’t.”
Soon after Christian choked Keith, Keith ran to the apartment’s balcony
and screamed for help. 3 Keith wrapped her arms through the balcony’s railing,
and Christian repeatedly tried to pry Keith off the railing. Christian struck Keith in
the back of the head twice before she let go of the railing. Keith made eye
contact with the apartment manager. The apartment manager heard Keith
screaming and observed Christian strike Keith a few times and “pull her by her
hair.” The apartment manager then called 911. A visitor to an adjacent
apartment building also heard Keith screaming. Concerned that someone
needed help, the visitor ran outside Keith’s apartment and saw Christian
2 Christian testified that he did not choke Keith.
3 Keith also testified that she ran to the balcony between three and four
hours after the choking incident. But, Keith testified that she had a hard time
differentiating between the physical altercations “because they were so close
together.”
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“grabbing” Keith. After Keith let go of the railing, Christian went inside the
apartment and Keith stayed on the balcony. When Keith heard police sirens, she
ran inside the apartment and told Christian the police were coming. Then, Keith
jumped into bed and began to cry.
Lynnwood Police Officers George Bucholtz and Tanner Hedlund
responded to a 911 report of a domestic violence assault. The officers identified
Keith’s apartment, repeatedly knocked on the door and announced their
presence, and ordered the occupants to open the door. The officers could hear
someone inside the apartment crying. Between knocks, the officers heard
someone inside the apartment reply to their request to open the door by
shouting, “no.” According to Keith, Christian yelled through the door “you cannot
come in,” and told Nigel not to open the door. Christian denied telling Nigel or
Keith not to open the door. Christian testified, “I told [Keith], I said answer the
door, you’re the reason why they’re here.”
The officers believed there were exigent circumstances—a person being
assaulted—permitting them to enter the apartment without first obtaining a
warrant. So, Bucholtz kicked open the apartment door. The officers found Keith
crying and lying under a blanket on the bed and Christian standing at the foot of
the bed. Christian approached the officers swinging his arms and shouting for
the officers to “get out.” Bucholtz tried to handcuff Christian by grabbing his right
arm, but Christian pulled away. Bucholtz physically restrained Christian, placed
him in handcuffs, and removed him from the apartment.
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Once outside, Christian told Bucholtz that Keith “had anxiety and that she
freaked out” and yelled at Christian and Nigel. Christian also said that “Keith had
gone out onto the balcony in her underwear,” and Christian was trying “to get her
to come back inside.”
Hedlund stayed in the apartment with Keith. Hedlund observed Keith’s
injuries including bruises around her neck, bruises and scrapes on her arms, and
a red mark on top of her head. Bucholtz returned to the apartment and observed
Keith was still crying, and that she had abrasions around her neck, redness on
her arms, and lumps on her head. Keith told the officers that “she attempted to
call 911,” but Christian threw the cell phone, so Keith went on the “balcony and
screamed for help,” and then “Christian came outside and hit her on the head.”
Keith also said that she went outside “hoping that someone could hear her and
call 911 for her.”
The State charged Christian with three domestic violence crimes:
(1) assault in the second degree by strangulation and suffocation, (2) assault in
the fourth degree, and (3) interfering with the reporting of domestic violence.
Before trial, the trial court granted Christian’s motion to “[e]xclude all
reference to Mr. Christian’s current or any previous incarceration.” The trial court
also ordered that
no reference be made by counsel or any witness to matters
previously excluded by the Court. ER 103(c), 401. Similarly, order
that counsel for both parties make their witnesses aware of the
pretrial rulings so that the witnesses are careful in their testimony
and do not violate a court order that could potentially result in a
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No. 80045-1-I/6
mistrial or prejudice to either party. Witnesses should be shown a
written copy of these rulings if such written copy exists.
During trial, on cross-examination, defense counsel asked Keith, “Now,
Mr. Christian doesn’t live there anymore; correct?” In response, Keith testified,
“Mr. Christian’s in jail. . . He’s in jail.” A few minutes later, the trial court took a
recess and excused the jury. During the recess, the trial court asked the parties
if they had any issues to address. They said no. Later, defense counsel asked
Keith what happened to Christian’s diamond chain. Keith testified, “If it’s not with
him in jail it’s in a box in the closet where all his other stuff is in my apartment.”
Before going on a lunch recess, the trial court gave the defense another
opportunity to raise issues and counsel declined.
After the lunch recess, Christian asserted the State violated the court’s
pretrial motions. The State conceded to failing to instruct Keith not to mention
Christian’s current or previous incarceration. Christian then moved for a mistrial.
The State objected to Christian’s motion for a mistrial by arguing Christian
did not timely object and he waived the issue. The State also argued the
prejudice to Christian was minimal because there was evidence that the police
arrested Christian at the scene. The State argued, in the alternative, that
Christian opened the door to the testimony and the testimony did not violate
Christian’s right to a fair trial. The State asked for an admonition or curative
instruction. Christian argued he did not waive the issue. Christian argued a
curative instruction was insufficient because the combination of having police
officers present in the courtroom during trial, and Keith’s references to Christian
6
No. 80045-1-I/7
being in jail, would allow jurors to speculate as to why the police officers were
present. The trial court responded, “There’s no speculation at this point. There
was speculation before the testimony. There’s no speculation now.” Christian
then argued the combination of the police presence and Keith’s testimony would
further allow the jurors to speculate that Christian was a “particularly dangerous
person.” The trial court noted that when two uniformed police officers are in a
courtroom throughout the trial, the jurors could infer the defendant is in custody.
Noting that the officers were present throughout Christian’s trial, the trial court
found the officers’ presence did not warrant granting a mistrial.
The trial court denied Christian’s motion for a mistrial but offered to
provide a curative jury instruction. Christian proposed, and the trial court
accepted, jury instruction number six, which stated, “[t]estimony or evidence
regarding incarceration of Mr. Christian shall not be considered or used by you
for any purpose whatsoever.”
The jury convicted Christian on all three counts.
After the trial court read the verdicts and released the jury, the trial court
questioned whether the conviction for the interference crime, count three, could
stand because it lacked a unanimity or Petrich instruction. 4 Jury instruction
4 In State v. Petrich, our Supreme Court provided, “When the evidence
indicates that several distinct criminal acts have been committed, but defendant
is charged with only one count of criminal conduct, jury unanimity must be
protected. . . The State may, in its discretion, elect the act upon which it will rely
for conviction. Alternatively, if the jury is instructed that all 12 jurors must agree
that the same underlying criminal act has been proved beyond a reasonable
doubt, a unanimous verdict on one criminal act will be assured. When the State
chooses not to elect, this jury instruction must be given to ensure the jury’s
7
No. 80045-1-I/8
number 15 provided that to “convict the defendant of the crime of interference
with the reporting of a domestic violence offense” the State must prove beyond a
reasonable doubt “[t]hat the defendant prevented or attempted to prevent Sharon
Keith from calling a 911 emergency communication system or making a report to
any law enforcement officer.” The trial court stated:
I don’t think that the verdict in relation to Count 3 is appropriate.
You can either brief it, or you can agree with my analysis, but when
you argued in closing there were two alternative methods in which
to commit the crime and there was no unanimity instruction or
Petrich instruction, I don’t think that verdict could stand. I’m certain
it’s likely that issue will be appealed, but I do not want this case
being returned for that issue. I think it’s a problem. So I think that I
would have to, in all likelihood, find him not guilty of that charge.
However, at sentencing the trial court concluded a unanimity instruction was not
required because the jury could find sufficient evidence to support each
alternative means.
Christian appeals.
DISCUSSION
Mistrial
Christian argues the trial court abused its discretion when it denied his
motion for a mistrial based on Keith’s testimony about Christian’s incarceration
that violated pretrial rulings.
We review a trial court’s denial of a motion for a mistrial for abuse of
discretion. State v. Rodriguez, 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002). A
understanding of the unanimity requirement.” 101 Wn.2d 566, 572, 683 P.2d 173(1984); see also, State v. Carson, 184 Wn.2d 207, 216-17, 357 P.3d 1064(2015).
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No. 80045-1-I/9
trial court “should grant a mistrial only when the defendant has been so
prejudiced that nothing short of a new trial can insure that the defendant will be
fairly tried.” State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). “A trial
court’s denial of a motion for mistrial will be overturned only when there is a
‘substantial likelihood’ that the error prompting the request for a mistrial affected
the jury’s verdict.” Rodriguez, 146 Wn.2d at 269-70 (quoting State v. Russell,
125 Wn.2d 24, 85, 882 P.2d 747 (1994)). “A trial court abuses its discretion if its
decision is manifestly unreasonable or based on untenable grounds or reasons.”
State v. Brooks, 195 Wn.2d 91, 97, 455 P.3d 1151 (2020).
“[W]hen a trial irregularity occurs, the court must decide its prejudicial
effect.” State v. Gamble, 168 Wn.2d 161, 177, 225 P.3d 973 (2010). “An
irregularity in a trial proceeding is grounds for reversal when it is so prejudicial
that it deprives the defendant of a fair trial.” State v. Condon, 72 Wn. App. 638,
647, 865 P.2d 521 (1993). “In determining the effect of an irregularity, we
examine (1) its seriousness; (2) whether it involved cumulative evidence; and
(3) whether the trial court properly instructed the jury to disregard it.” State v.
Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989).
Trial courts have wide discretion in curing trial irregularities resulting from
improper witness statements. Gamble, 168 Wn.2d at 177. “Courts generally
presume jurors follow instructions to disregard improper evidence.” Russell, 125
Wn.2d at 84. But, “no instruction can ‘remove the prejudicial impression created
[by evidence that] is inherently prejudicial and of such a nature as to likely
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No. 80045-1-I/10
impress itself upon the minds of the jurors.’ ” State v. Escalona, 49 Wn. App.
251, 255, 742 P.2d 190 (1987) (quoting State v. Miles, 73 Wn.2d 67, 71, 436
P.2d 198 (1968)). Some curative instructions are insufficient in removing the
prejudicial effect of evidence. Gamble, 168 Wn.2d at 177.
The instant case is similar to Condon where a witness testified in violation
of a ruling in limine that the defendant was in jail. 72 Wn. App. at 648. The
Condon court granted the defendant’s motion to strike those comments, denied
the defendant’s motion for a mistrial, and instructed the jury to disregard
references the defendant was in jail. Id. On appeal, we determined the fact that
the defendant had been in jail did not mean he was convicted of a crime. Id. at
649. We also determined that, while the statements had the potential for
prejudice, they were not serious enough to warrant a mistrial, and the trial court’s
instruction to disregard the statement was sufficient to cure any potential
prejudice. Id.; see also State v. Lewis, 141 Wn. App. 367, 166 P.3d 786 (2007)
(no abuse of discretion where the trial court struck testimony that violated a
motion in limine and gave a curative jury instruction).
Similar to the trial court in Condon, the trial court below gave a proper
curative instruction. The jury could infer Christian was in custody because the
officers arrested him at Keith’s apartment. Because we assume juries follow
instructions, the trial court did not abuse its discretion in denying Christian’s
motion for a mistrial.
10
No. 80045-1-I/11
Jury Unanimity
Christian argues the jury instructions for the crimes of assault in the
second degree and interfering with the reporting of domestic violence violated his
constitutional right to unanimous jury verdicts. We disagree.
Article 1, section 21 of the Washington State Constitution provides
defendants the right to a unanimous jury verdict. The right to a unanimous jury
verdict includes the right to unanimity as to the means with which the State
charged the defendant and the court instructed the jury. State v. Owens, 180
Wn.2d 90, 95, 323 P.3d 1030 (2014). “Where a single offense may be
committed in more than one way, there must be jury unanimity as to guilt for the
single crime charged. Unanimity is not required, however, as to the means by
which the crime was committed so long as substantial evidence supports each
alternative means.” State v. Nonog, 145 Wn. App. 802, 811-12, 187 P.3d 335(2008), aff’d, 169 Wn.2d 220, 237 P.3d 250 (2010). “Evidence is sufficient if,
viewing the evidence in a light most favorable to the State, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” Owens, 180 Wn.2d at 99.
Whether a statute provides an alternative means crime is a question of
statutory interpretation. State v. Espinoza, 14 Wn. App. 2d 810, 819, 474 P.3d
570 (2020) (citing Owens, 180 Wn.2d at 96). “[T]he use of a disjunctive ‘or’ in a
list of methods of committing the crime does not necessarily create alternative
means of committing the crime, nor does the presence of statutory subsections.”
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No. 80045-1-I/12
Id. (citing State v. Barboza-Cortes, 194 Wn.2d 639, 643-44, 451 P.3d. 707
(2019)).
RAP 2.5(a)(3) provides that an “appellate court may refuse to review a
claim of error which was not raised in the trial court” unless the claimed error is a
“manifest error affecting a constitutional right.” An error is manifest if the
appellant can demonstrate actual prejudice through practical and identifiable
consequences at trial. State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009).
An error is truly of constitutional dimension if it implicates a constitutional interest.
Id. at 98. “If a court determines the claim raises a manifest constitutional error, it
may still be subject to a harmless error analysis.” Id. “An alleged violation of the
right to a unanimous jury verdict is a constitutional challenge that this court
reviews de novo.” In re Detention of Keeney, 141 Wn. App. 318, 327, 169 P.3d
852 (2007).
A. Assault in the Second Degree
Christian asserts that a conviction for assault in the second degree must
be supported by sufficient evidence for each of the alternative means of
strangulation and suffocation. Because no evidence supports suffocation, he
contends we should reverse his conviction. We disagree.
Where there are alternative ways to satisfy each alternative means (i.e., “a
means within a means”), the alternative means doctrine does not apply. State v.
Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007) (quoting In re Pers. Restraint of
Jeffries, 110 Wn.2d 326, 339, 752 P.2d 1338 (1988)). In other words, “the
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No. 80045-1-I/13
alternative means analysis does not apply to ‘sub[-]alternatives.’ ” Espinoza, 14
Wn. App. 2d at 819-22 (determining that, even though RCW 9A.46.020 is an
alternative means crime, the alternative means doctrine does not apply to the
sub-alternatives of its subsection) (citing Smith, 159 Wn.2d at 783).
In Smith, our Supreme Court analyzed former RCW 9A.36.021(1) (1988),
which contained six separate subsections representing the alternative means of
committing the crime of assault in the second degree. 159 Wn.2d at 784. In
2007, the legislature added “[a]ssault another by strangulation,” subsection (g),
as another means of finding a person guilty of assault in the second degree.
LAWS OF 2007, ch. 70, § 2. In 2011, the legislature added “or suffocation” within
subsection (g). LAWS OF 2011, ch. 166, § 1. RCW 9A.36.021(1)(g) provides, “A
person is guilty of assault in the second degree if he or she” “[a]ssaults another
by strangulation or suffocation.”
“When the alleged alternatives are ‘minor nuances inhering in the same
act,’ these ‘alternatives’ are more accurately categorized as ‘facets of the same
criminal conduct.’ ” Espinoza, 14 Wn. App. 2d at 819 (quoting Barboza-Cortes,
194 Wn.2d at 644 (quoting State v. Sandholm, 184 Wn.2d 726, 734, 364 P.3d 87(2015)). “ ‘Strangulation’ means to compress a person’s neck, thereby
obstructing the person’s blood flow or ability to breathe, or doing so with the
intent to obstruct the person’s blood flow or ability to breathe.”
RCW 9A.04.110(26). “ ‘Suffocation’ means to block or impair a person’s intake
of air at the nose and mouth, whether by smothering or other means, with the
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No. 80045-1-I/14
intent to obstruct the person’s ability to breathe.” RCW 9A.04.110(27). Here,
strangulation and suffocation are two “facets of the same criminal conduct” of
restricting a person’s ability to breathe.
Assault in the second degree is an alternative means crime because it is a
single criminal offense with seven separate subsections, (a) through (g),
representing the alternative means of committing the offense.
RCW 9A.36.021(1). Here, the State charged Christian with violating
RCW 9A.36.021(1)(g), which is one of the seven alternative means of committing
assault in the second degree. “We presume the legislature is ‘familiar with
judicial interpretations of statutes and, absent an indication it intended to overrule
a particular interpretation, amendments are presumed to be consistent with
previous judicial decisions.’ ” State v. Ervin, 169 Wn. 2d 815, 825, 239 P.3d 354,
359 (2010) (quoting State v. Bobic, 140 Wn.2d 250, 264, 996 P.2d 610 (2000)).
Thus, the legislature was aware of Smith and the interpretation of
RCW 9A.36.021(1) as an alternative means crime before it elected to add
“suffocation” within the same alternative means of “strangulation.” By electing
not to add suffocation as its own distinct subsection, the legislature chose not to
make suffocation its own alternative means of committing assault in the second
degree. Thus, strangulation and suffocation are “sub-alternatives” or “means
within a means” within RCW 9A.36.021(1)(g). Strangulation and suffocation are
not alternative means in RCW 9A.36.021(1).
14
No. 80045-1-I/15
Christian argues that even if strangulation and suffocation are not
alternative means of committing assault in the second degree, under the law of
the case doctrine, they became alternative means when the jury was so
instructed, as proposed by the State. We disagree.
The trial court instructed the jury that to convict Christian of the crime of
assault in the second degree, the State must prove beyond a reasonable doubt:
(1) That on or about the 29th day of December, 2018, the
defendant intentionally assaulted Sharon Keith by
a. strangulation or
b. suffocation . . . .
Christian was tried for, and the jury was instructed, on assault in the second
degree by strangulation or suffocation and no other alternative means of
committing assault in the second degree. However, the trial court instructed the
jury as if strangulation and suffocation were alternative means:
To return a verdict of guilty, the jury need not be unanimous as to
which of alternatives (1)(a) or (1)(b) has been proved beyond a
reasonable doubt, as long as each juror finds that at least one
alternative has been proved beyond a reasonable doubt.
This instruction is consistent with the Washington Pattern Jury Instructions
for alternative means crimes. 11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN
JURY INSTRUCTIONS: CRIMINAL 4.23 (4th ed. 2016) (WPIC).
The law of the case doctrine “refers to the principle that jury instructions
that are not objected to are treated as the properly applicable law for purposes of
appeal.” Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005). Under this
doctrine, “[i]n criminal cases, the State assumes the burden of proving otherwise
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No. 80045-1-I/16
unnecessary elements of the offense when such added elements are included
without objection in the ‘to convict’ instruction.” State v. Hickman, 135 Wn.2d 97,
102, 954 P.2d 900 (1998). The law of the case doctrine does not apply to the
instant case where the to-convict instruction did not contain an added element.
In State v. Makekau, Division Two of this court determined possession of
a stolen motor vehicle was not an alternative means crime even though the
statute, and subsequent to-convict instruction, included a disjunctive “or” list of
methods of committing that crime. 194 Wn. App. 407, 419, 378 P.3d 577 (2016).
There, the terms “received, possessed, concealed, or disposed of” were methods
rather than alternative means of committing possession. Id. at 419-20. Because
possession of a stolen motor vehicle was not an alternative means crime, and
the jury was not provided additional elements, “the State was required to prove
only that Makekau’s conduct satisfied one of the disjunctive terms.” Id. at 420.
Similar to Makekau, here, consistent with RCW 9A.36.021(1)(g), the
instruction properly provided the only two means within the means of finding
assault in the second degree. While the trial court erred in providing the
alternative means instruction, because strangulation and suffocation are means
within a means, the State was not required to prove both sub-alternatives beyond
a reasonable doubt. Thus, the error was harmless.
As Christian concedes, there was sufficient evidence to support a
conviction for strangulation. Keith testified to Christian choking her, and the
responding officers testified to observing bruising and abrasions around Keith’s
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No. 80045-1-I/17
neck. Thus, sufficient evidence supports a conviction for assault in the second
degree by strangulation.
Because strangulation and suffocation are means within a means, and
because Christian’s conviction is supported by sufficient evidence that he
strangled Keith, we find no reversible error. See Sandholm, 184 Wn.2d at 736,
(determining, because the former driving under the influence statute “does not
create alternative means, and because Sandholm’s conviction is supported by
sufficient evidence that he drove under the influence of alcohol, we find no
error”).
B. Interfering with the Reporting of Domestic Violence
This court has determined the crime of interfering with the reporting of
domestic violence is an alternative means crime. Nonog, 145 Wn. App. at 811-
12. 5 RCW 9A.36.150(1)(b) provides, “A person commits the crime of interfering
with the reporting of domestic violence if the person” “[p]revents or attempts to
prevent the victim of or a witness to that domestic violence crime from calling a
911 emergency communication system, obtaining medical assistance, or making
a report to any law enforcement official.” In other words, the statute sets forth
three alternative means of committing the crime of interfering: (1) preventing
someone from calling a 911 communication system, (2) preventing someone
5 On appeal to the Supreme Court, the parties in Nonog did not challenge
our determination that interfering with reporting domestic violence is an
alternative means crime. Nonog, 169 Wn.2d 220. The court affirmed Nonog
without reaching the issue. We decline the State’s invitation to reconsider
whether interfering with the reporting of domestic violence is an alternative
means crime.
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No. 80045-1-I/18
from obtaining medical assistance, and (3) preventing someone from making a
report to any law enforcement officer.
In the instant case, the trial court did not instruct the jury that interfering
with the reporting of domestic violence is an alternative means crime. Instead,
jury instruction number 15 provided,
To convict the defendant of the crime of interference with the
reporting of a domestic violence offense, each of the following
elements of the crime must be proved beyond a reasonable doubt:
[. . .]
(3) That the defendant prevented or attempted to prevent Sharon
Keith from calling a 911 emergency communication system or
making a report to any law enforcement officer.
(Emphasis added.) After the verdict, the trial court recognized that it did not give
the jury a unanimity instruction. Christian contends this is a reversible error. We
disagree.
Instead of electing which means supported a conviction, the State
presented sufficient evidence to support each of the two alternative means listed
in the court’s instruction.
First, the State presented sufficient evidence that Christian prevented or
attempted to prevent Keith from calling 911. At trial, Keith testified to holding
onto the phone with both hands until Christian punched and choked her. Keith
testified that once Christian got the phone, he stopped choking her and stood up.
Also at trial, the responding officers testified that Keith reported “she attempted to
call 911” and that Christian threw the cell phone. Officers also testified Keith said
she went onto the balcony “hoping that someone could hear her and call 911 for
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No. 80045-1-I/19
her.” Viewing the evidence in the light most favorable to the State, any rational
juror could have found beyond a reasonable doubt that Christian prevented or
attempted to prevent Keith from calling 911.
Second, the State presented sufficient evidence that Christian prevented
or attempted to prevent Keith from making a report to any law enforcement
officer. Keith testified that, after officers knocked on her apartment door,
Christian yelled through the door, “you cannot come in” and told Nigel not to
open the door. The reporting officers testified they repeatedly knocked on Keith’s
apartment door, announced their presence, and ordered the occupants to open
the door. They also testified that between knocks, they heard someone inside
crying and someone else shout “no” to their request to open the door. After the
officers forced their way into the apartment, they found Keith crying and lying
under a blanket on the bed and Christian standing at the foot of the bed.
Christian then approached the officers swinging his arms and shouting for the
officers to “get out.” Viewing the evidence in the light most favorable to the State,
any rational juror could have found beyond a reasonable doubt that Christian
prevented or attempted to prevent Keith from making a report to any law
enforcement officer by refusing the police entry into the apartment and ordering
Nigel not to answer the door.
“[W]hen there is sufficient evidence to support each of the alternative
means of committing the crime, express jury unanimity as to which means is not
required.” Owens, 180 Wn.2d at 95. Because there was sufficient evidence to
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No. 80045-1-I/20
support each alternative means listed in the trial court’s instruction, the trial court
did not violate Christian’s right to a unanimous verdict.
Culpable Mental State
Christian argues his conviction for interfering with the reporting of
domestic violence should be reversed because the crime requires an element of
a culpable mental state, which neither the charging information nor the to-convict
instruction contained. 6 Because we determine the crime of interfering with the
reporting of domestic violence is a strict liability offense, we disagree.
Whether the crime of interfering with the reporting of domestic violence
contains a mens rea element or is a strict liability crime presents questions of law
that are reviewed de novo. State v. Yishmael, 195 Wn.2d 155, 163, 456 P.3d
1172 (2020). 7
Under common law “strict liability crimes [were] disfavored.” State v.
Anderson, 141 Wn.2d 357, 367, 5 P.3d 1247 (2000); Yishmael II, 195 Wn.2d at
163. The State was required to “prove both a bad act and bad intent.”
Yishmael II, 195 Wn.2d at 163. But, our legislature has plenary power to create
strict liability crimes. State v. Blake, 197 Wn.2d 170, 179, 481 P.3d 521 (2021)
(citing Yishmael II, 195 Wn.2d at 163). Strict liability crimes are crimes that
“criminalize conduct regardless of whether the actor intended wrongdoing.” Id.
6 Christian argues this court should read the statute to include an implied
mens rea element of intentional or knowing prevention of reporting. Christian
provides no argument as to which mens rea this court should infer.
7 For clarity, we refer to State v. Yishmael, 195 Wn.2d 155, 456 P.3d 1172(2020) as “Yishmael II” because it followed State v. Yishmael, 6 Wn. App. 2d
203, 430 P.3d 279 (2018), which we refer to as “Yishmael I.”
20
No. 80045-1-I/21
(quoting Yishmael II, 195 Wn.2d at 163). Strict liability crimes require the State
prove actus reus but do not require the State to prove mens rea. 8 “In particular,
the legislature may create ‘strict liability offenses to protect the public from the
harms that have come with modern life by putting the burden of care on those in
the best position to avoid those harms.’ ” Id. (quoting Yishmael II, 195 Wn.2d at
164).
“[W]hether a statute sets forth a strict liability crime is a statutory
construction question aimed at ascertaining legislative intent. The inquiry begins
with the statute’s language and legislative history.” State v. Bash, 130 Wn.2d
594, 604-05, 610, 925 P.2d 978 (1996); see also Blake, 197 Wn.2d at 193
(confirming that “when the legislature enacts a statute without explicit mens rea
language, we will still look to the statutory language, the legislative history, and a
series of nonexclusive factors to determine ‘whether the legislature intended to
create a strict liability offense.’ ”) (quoting Yishmael II, 195 Wn.2d at 164-66). We
consider the “statute’s context, and the interplay with related statutes.”
Yishmael II, 195 Wn.2d at 164.
RCW 9A.36.150 provides,
(1) A person commits the crime of interfering with the reporting of
domestic violence if the person:
(a) Commits a crime of domestic violence, as defined in RCW
10.99.020; and
(b) Prevents or attempts to prevent the victim of or a witness to that
domestic violence crime from calling a 911 emergency
communication system, obtaining medical assistance, or making a
report to any law enforcement official.
8 Actus reus is a voluntary act. BLACK’S LAW DICTIONARY (11th ed. 2019).
21
No. 80045-1-I/22
(2) Commission of a crime of domestic violence under subsection
(1) of this section is a necessary element of the crime of interfering
with the reporting of domestic violence.
(3) Interference with the reporting of domestic violence is a gross
misdemeanor.
The text of RCW 9A.36.150 does not include an explicit mens rea
element. However, a statute’s “failure to be explicit regarding a [mens rea]
element is not, however, dispositive of legislative intent.” Anderson, 141 Wn.2d
at 361. Thus, we next consider RCW 9A.36.150’s legislative history. Blake, 197
Wn.2d at 193; Yishmael II, 195 Wn.2d at 166.
As Christian asserts, and the State concedes, RCW 9A.36.150’s
legislative history does not include a statement of legislative intent. The
legislative history does not answer the questions of whether the legislature
intended to include a mens rea element or whether the legislature purposefully
omitted that element.
Christian argues that because RCW 9A.36.150 does not establish an
affirmative defense, the legislature intended there to be a mens rea element. In
Anderson, the Washington State Supreme Court considered whether the crime of
unlawful possession of a firearm in the second degree contained an implicit mens
rea element or was a strict liability crime. 141 Wn.2d at 360. The court found
“the legislative history [was] not conclusive on the issue of the Legislature’s
intent.” Id. at 362-63. There, the legislature’s “failure to provide in the statute for
the affirmative defense of unwitting conduct or to expressly eliminate lack of
knowledge as a defense [were] . . . other indicators of its intent to make [mens
22
No. 80045-1-I/23
rea] an element of the offense.” Id. at 362-63. In other words, we consider the
fact that a statute does not include an affirmative defense or does not expressly
eliminate the lack of knowledge as an affirmative defense as indicative of the
legislature’s intent to create a mens rea element.
The State asserts the language of RCW 9A.36.150 “gives conflicting
signals as to the legislative intent” for two reasons. First, the State asserts
RCW 9A.36.150(1)(a) requires the defendant commit a domestic violence crime
as defined in RCW 10.99.020, and some of those domestic violence crimes have
express mens rea elements but others do not. The State cites rape in the first
degree, RCW 9A.44.040, as a crime that does not have a mens rea element and
that it is listed as a potential domestic violence crime defined in RCW 10.99.020. 9
Second, the State acknowledges that RCW 9A.36.150(1)(b) includes the
phrase “prevent or attempts to prevent,” which “suggests a mental state under
some circumstances but not others.” The State argues the court should
determine that “[o]nly the word ‘attempt’ indicates an intentional act.” In criminal
law, “attempt” is “[a]n overt act that is done with the intent to commit a crime but
that falls short of completing the crime.” BLACK’S LAW DICTIONARY (11th ed.
2019).
When the statute’s language and legislative intent are not determinative,
as to whether a crime includes a mens rea element, we use the eight
However, “The general rape statutes require forcible compulsion or an
9
unwilling or incapacitated victim.” State v. Johnson, 173 Wn.2d 895, 907, 270
P.3d 591, 597-98 (2012) (citing RCW 9A.44.040, .050, .060).
23
No. 80045-1-I/24
“nonexclusive” factors identified in Bash “as aids in determining whether the
Legislature has created a strict liability crime.” Anderson, 141 Wn.2d at 363
(citing Bash, 130 Wn.2d at 605-06); Yishmael II, 195 Wn.2d at 166; see Blake,
197 Wn.2d at 193 (courts still consider the Bash factors). The Bash factors are:
(1) a statute’s silence on a mental element is not dispositive of
legislative intent; the statute must be construed in light of the
background rules of the common law, and its conventional mens
rea element; (2) whether the crime can be characterized as a
“public welfare offense” created by the Legislature; (3) the extent to
which a strict liability reading of the statute would encompass
seemingly entirely innocent conduct; (4) and the harshness of the
penalty[ . . .]; (5) the seriousness of the harm to the public; (6) the
ease or difficulty of the defendant ascertaining the true facts;
(7) relieving the prosecution of difficult and time-consuming proof of
fault where the Legislature thinks it important to stamp out harmful
conduct at all costs, “even at the cost of convicting innocent-minded
and blameless people”; and (8) the number of prosecutions to be
expected.
130 Wn.2d at 605-06 (quoting Staples v. United States, 511 U.S. 600, 605, 114
S. Ct. 1798, 128 L. Ed. 2d 608 (1994)). “All of these factors are to be read in
light of the principal that offenses with no mental element are generally
disfavored.” Anderson, 141 Wn.2d at 363.
First, we consider the statute “in light of the background rules of common
law, and its conventional mens rea element.” Bash, 130 Wn.2d at 605. As the
State correctly notes, and Christian does not dispute, there is no common law
equivalent to the crime of interfering with the reporting domestic violence. The
State correctly asserts this factor is “unhelpful.” State v. Williams, 158 Wn.2d
904, 911, 148 Wn.3d 993 (2006) (determining this factor is unhelpful where the
statute has no common law predecessor).
24
No. 80045-1-I/25
Second, we consider “whether the crime can be characterized as a ‘public
welfare offense’ created by the Legislature.” Bash, 130 Wn.2d at 605.
Generally, public welfare offenses do not require proof of intent or a mental state.
Id. at 607. In other words, “the legislature may create ‘strict liability offenses to
protect the public.’ ” Blake, 197 Wn.2d at 179 (quoting Yishmael II, 195 Wn.2d at
163). Public welfare offenses tend to be “regulatory offenses” “involving ‘pure
food and drugs, labeling, weights and measures, building, plumbing and
electrical codes, fire protection, air and water pollution, sanitation, highway safety
and numerous other areas[.]’ ” Bash, 130 Wn.2d at 607 (quoting State v. Turner,
78 Wn.2d 276, 280, 474 P.2d 91 (1970)). Public welfare offenses:
[A]re not in the nature of positive aggressions or invasions, with
which the common law so often dealt, but are in the nature of
neglect where the law requires care, or inaction where it imposes a
duty. Many violations of such regulations result in no direct or
immediate injury to person or property but merely create the danger
or probability of it which the law seeks to minimize.
Morissette v. United States, 342 U.S. 246, 255-56, 72 S. Ct. 240, 96 L. Ed. 288(1952).
Crimes that are not public welfare offenses are “moral turpitude” offenses
and categorized as malum in se crimes. 10 State v. Smith, 17 Wn. App. 231, 234,
562 P.2d 659 (1977). Moral turpitude offenses generally “require a mental
element, some level of ‘guilty knowledge,’ even if the statute does not specify
that element.” Bash, 130 Wn.2d at 606-07 (quoting Turner, 78 Wn.2d at 280).
A “malum in se” crime is a “crime or an act that is inherently immoral,
10
such as murder, arson, or rape.” BLACK’S LAW DICTIONARY (11th ed. 2019).
25
No. 80045-1-I/26
Christian asserts, “[t]he crime of interfering with reporting of domestic
violence is a crime of moral turpitude, not a public welfare offense” because “it
prevents the victim from obtaining needed aid” and there is an “immediate harm”
to the victim.
The State agrees the offense of interfering with the reporting of domestic
violence is not technically a public welfare offense because it is not a regulatory
offense. But, the State argues the offense of interfering with the reporting of
domestic violence shares some aspects of public welfare offenses because its
harm extends beyond the victim to society. We address the State’s argument
below in our consideration of Bash factor five examining the “seriousness of the
harm to the public.”
The crime of interfering with the reporting of domestic violence is more
similar to a crime of moral turpitude than to a public welfare offense. As
previously noted, many public welfare offenses “result in no direct or immediate
injury to person.” Morissette, 342 U.S. at 255-56. Unlike public welfare offenses,
as Christian asserts, the crime of interfering with the reporting of domestic
violence may involve immediate harm to the victim. Thus, this factor weighs in
favor of finding a mens rea element.
Third, we consider “the extent to which a strict liability reading of the
statute would encompass seemingly entirely innocent conduct.” Bash, 130
Wn.2d at 605. “[A] statute will not be deemed to be one of strict liability where
26
No. 80045-1-I/27
such construction would criminalize a broad range of apparently innocent
behavior.” Anderson, 141 Wn.2d at 364.
Christian provides a number of examples of how RCW 9A.36.150 would
criminalize a broad range of seemingly innocent behavior if it is a strict liability
crime. For example, Christian asserts, “Suppose an assault victim, sometime
after being assaulted, contemplates calling 911 but, before moving to pick up the
phone and without announcing her intention, the defendant picks up the phone to
call someone else, thereby preventing her from calling 911.” Christian’s
hypothetical fails to provide other context that a jury could consider such as
whether the assault victim was able to pick up the phone moments later and
make the call or whether the assailant dominated the use of the phone for the
rest of the evening. Regardless of the circumstances, the jury is to consider
circumstances in determining if the assailant, beyond a reasonable doubt,
prevented or attempted to prevent the victim from making that call.
More importantly, Christian’s hypothetical ignores the fact that it was the
defendant who created the situation where the victim would have a reason to call
a 911 emergency communication system, obtain medical assistance, or make a
report to any law enforcement official. In other words, the State still has to prove
the defendant committed a crime of domestic violence. The statute only
criminalizes the active, not passive, conduct of interfering with the reporting of
27
No. 80045-1-I/28
domestic violence after having committed a domestic violence crime. 11 This is
not wholly innocent nonconduct.
Furthermore, Christian’s request to add a mens rea element creates a
potentially dangerous situation. It is reasonable that a victim of domestic
violence would not want the defendant to know that the victim was trying to call
for help or report the crime. Requiring the defendant to know the victim was
trying to seek help does not contemplate the circumstances of domestic violence.
The State argues a defendant can only commit the crime of interfering
with the reporting of domestic violence if that defendant commits a crime of
domestic violence so the crime does not criminalize a broad range of innocent
behavior. State v. Burch is analogous on this factor. 197 Wn. App. 382, 394,
389 P.3d 685 (2016). In Burch, Division Two of this court considered whether
vehicular homicide committed while under the influence of alcohol or drugs was a
strict liability crime. Id. at 393. The court considered the fact that the underlying
crime of driving under the influence is a serious criminal offense. Id. at 394.
“Because vehicular homicide while under the influence of intoxicating liquor or
drugs requires the State to prove the facts of both impairment and operation of a
motor vehicle, the crime necessarily encompasses primarily or solely criminal
behavior.” Id. at 395. As the State asserts, to convict a defendant of the crime of
interfering with the reporting of domestic violence, the State must prove and the
11Cf. Blake, 197 Wn.2d at 179-80 (holding the felony of unknowing
possession of a controlled substance unconstitutionally criminalized “wholly
innocent and passive nonconduct on a strict liability basis”).
28
No. 80045-1-I/29
trier of fact must find the defendant committed a domestic violence crime. The
underlying crime of domestic violence is a serious criminal offense. Thus, the
crime of interfering with the reporting of domestic violence does not criminalize a
broad range of innocent behavior. This factor weighs in favor of strict liability.
Fourth, we consider “the harshness of the penalty.” Bash, 130 Wn.2d at
605. “ ‘[T]he greater the possible punishment, the more likely some fault is
required; and, conversely, the lighter the possible punishment, the more likely the
legislature meant to impose liability without fault.’ ” Id. at 608-09 (citation
omitted). Interfering with the reporting of domestic violence is a gross
misdemeanor subject to a possible 364 days in jail. RCW 9A.36.150(3);
RCW 9A.20.021.
Christian argues generally that a person convicted of a felony may receive
a lighter sentence than a person convicted of a gross misdemeanor; a person
convicted of both interfering with the reporting of domestic violence and a felony
may receive a harsher sentence; and a person convicted of a gross
misdemeanor will face numerous societal hardships.
As the State points out, courts have found that an offense that is a gross
misdemeanor weighs in favor of concluding it is a strict liability offense (citing
Yishmael II, 195 Wn.2d at 170 (Generally, a first offense for the unlawful practice
of law would be a misdemeanor and weighs in favor of reading the crime as a
strict liability offense.)).
29
No. 80045-1-I/30
Furthermore, courts have found that felonies that carry a maximum
penalty of five years of imprisonment “weigh in favor” of a reading that the crime
“is not one of strict liability.” Anderson, 141 Wn.2d at 365 (emphasis added); see
also State v. Warfield, 119 Wn. App. 871, 881-82, 80 P.3d 625 (2003) (agreeing
with the Anderson court that “a five-year prison term is not inconsequential” and
is a “harsh penalty”).
Because RCW 9A.35.150 is a gross misdemeanor that carries a potential
maximum penalty of 364 days of jail, the penalty factor weighs in favor of reading
RCW 9A.36.150 as a strict liability crime.
Fifth, we consider “the seriousness of the harm to the public.” Bash, 130
Wn.2d at 605. “ ‘[T]he more serious the consequences to the public, the more
likely the legislature meant to impose liability without regard to fault, and vice
versa.’ ” Id. at 610 (citation omitted).
Without citation to any authority, Christian contends that while defendants
charged with interfering with the reporting of domestic violence may harm the
victim, such defendants do not harm the general public. The State argues that
the legislature recognizes that domestic violence is a serious societal issue that
poses immediate risk of harm to victims and their families as stated in the
purpose and intent of chapter 10.99 RCW.12 The legislature created chapter
12 The Centers for Disease Control and Prevention recognizes “Intimate
Partner Violence” as “a serious, preventable public health problem that affects
millions of Americans. The term ‘intimate partner violence’ describes physical
violence, sexual violence, stalking, or psychological harm by a current or former
partner or spouse.” https://www.cdc.gov/ViolencePrevention/intimatepartner
violence/index.html (last visited Mar. 10, 2021).
30
No. 80045-1-I/31
10.99 RCW to address domestic violence. The State points to the legislature’s
explicit recognition of why it created this chapter:
The purpose of this chapter is to recognize the importance of
domestic violence as a serious crime against society. . . . Only
recently has public perception of the serious consequences of
domestic violence to society and to the victims led to the
recognition of the necessity for early intervention by law
enforcement agencies.
RCW 10.99.010 (emphasis added). The State also cites RCW 9.94A.535(3),
which provides “an exclusive list of factors that can support a felony sentence
above the standard range.” One of the aggravating factors is where “[t]he current
offense involved domestic violence . . . and one or more of the following was
present”:
(i) The offense was part of an ongoing pattern of psychological,
physical, or sexual abuse of a victim or multiple victims manifested
by multiple incidents over a prolonged period of time;
(ii) The offense occurred within sight or sound of the victim’s or the
offender’s minor children under the age of eighteen years; or
(iii) The offender’s conduct during the commission of the current
offense manifested deliberate cruelty or intimidation of the victim.
RCW 9.94A.535(3)(h). These statutes reflect the legislature’s awareness that
the impact of domestic violence goes beyond the victim.
Christian also generally asserts the purpose of criminal law is to deter
conduct, and punishment for crimes without a mental element does not further
the goal of deterrence. Christian cites Anderson, 141 Wn.2d at 365, and Bash,
130 Wn.2d at 610.
Both Anderson and Bash are distinguishable. The Anderson court
concluded that “[w]hile one can easily argue that there is danger to society if
31
No. 80045-1-I/32
persons who have been convicted of certain crimes knowingly possess firearms,
we fail to see how their unwitting possession of a firearm poses a significant
danger to the public. Neither does the punishment of such persons further a goal
of deterrence.” 141 Wn.2d at 365. The Bash court considered the crime of
possessing a potentially dangerous or dangerous dog that severely injures or
causes the death of another. 130 Wn.2d at 598-99. The Bash court concluded
that “[w]hether a strict liability standard would accomplish the goal of deterrence
is doubtful, however, because unless the owner knows or reasonably should
know of the dog’s dangerous propensities, it is unlikely that the owner would
think it necessary to use extraordinary care in controlling the dog.” Id. at 610.
Unlike the defendant who unwittingly possessed a firearm or unknowingly
possessed a dangerous dog, defendants who interfered with the reporting of
domestic violence are not defendants who innocently found themselves in that
circumstance. They are defendants, as the State points out, who committed a
domestic violence crime against the victim and these defendants need only
“stand aside and allow the victim to call the police or seek medical attention.”
Thus, deterrence is not doubtful.
Because domestic violence is a serious crime against society, the crime of
interfering with the reporting of domestic violence is one way to try to reduce
public harm. This factor weighs in favor of strict liability.
Sixth, we consider “the ease or difficulty of the defendant ascertaining the
true facts.” Id. at 605. “ ‘The harder to find out the truth, the more likely the
32
No. 80045-1-I/33
legislature meant to require fault in not knowing; the easier to ascertain the truth,
the more likely failure to know is no excuse.’ ” Yishmael II, 195 Wn.2d at 170-71
(quoting 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law
§ 5.5(a), at 518-19 (3d ed. 2017)). In other words, the easier it is for a defendant
to discover the facts surrounding their actions, the more likely the legislature
meant to impose strict liability for those actions.
In Yishmael II, Washington State Supreme Court determined that it “is not
difficult to ascertain that filling out legal documents for a fee is the practice of
law.” Id. at 171. Here, it is not difficult to ascertain that victims of domestic
violence may want to call for help or make a report to a law enforcement officer
and that the defendant should not interfere with the victim’s ability to do so.
Christian argues this factor is “unilluminating because the circumstances
under which a person may prevent a report are varied.” Christian asserts the
victim of domestic violence is in the superior position to know whether they intend
to make a report. The State argues that because “the defendant will already
know what he did, and who he did it to, he is in possession of facts that amount
to a crime.” (Emphasis added.) The State also argues “the defendant will know
if the victim has reached for a phone, attempts to leave the apartment, or
attempts to contact a law enforcement officer on the street nearby.”
It is true that there are circumstances where the victim makes it known,
either intentionally or unintentionally, to the defendant that the victim wants to call
for help. However, it is also true that even in situations where a victim does not
33
No. 80045-1-I/34
want the defendant to know they are trying to call for help, the defendant is still in
the best possession to know facts that amount to a crime. The question is not
whether defendants know that victims intend to call for help, it is whether
defendants who commit domestic violence crimes should inherently know by
committing domestic violence they are creating circumstances whereby victims
may want to make that call. Thus, it is not difficult for defendants under these
circumstances to ascertain that their conduct prevents or attempts to prevent
victims from calling for help. This factor weighs in favor of concluding the offense
is a strict liability crime.
Seventh, we consider whether it would be “relieving the prosecution of
difficult and time-consuming proof of fault where the [l]egislature thinks it
important to stamp out harmful conduct at all costs, ‘even at the cost of
convicting innocent-minded and blameless people.’ ” Bash, 130 Wn.2d at 606.
Courts have found this factor to weigh in favor of strict liability when defendants
could easily claim another reason for their conduct. See State v. Mertens, 148
Wn.2d 820, 830, 64 P.3d 633 (2003) (explaining that defendants charged with
commercial fishing without a license could “easily claim noncommercial intent”).
Christian argues the “State routinely proves a culpable mental state
beyond a reasonable doubt based on circumstantial evidence alone,” so
requiring the State to do so here would not be time-consuming or difficult. The
State agrees that it frequently takes on the burden of proving a mental state but
also asserts the risk of convicting innocent minded persons is low because that
34
No. 80045-1-I/35
person had committed a domestic violence crime against the victim. The State
ultimately argues this factor “neither favors nor disfavors finding the crime has a
mental element.”
In the circumstance of domestic violence, defendants could easily claim
they did not know the victim wanted to call for help, and defendants could easily
claim another reason for their behavior. Christian’s own hypothetical provides an
example of that. It is doubtful that the legislature requires someone who is a
victim of domestic violence to have to alert the assailant that they wish to call for
help. The concern of convicting someone who is innocent-minded and
blameless is remote because evidence must support beyond a reasonable doubt
that the person who interfered is the person who committed a domestic violence
crime. This factor weighs in favor of strict liability.
Eighth, we consider “the number of prosecutions to be expected.”
Bash, 130 Wn.2d at 606.
Historically, some courts did not address this factor where the record did
not include the number of prosecutions or provide some form of statistical
analysis to show the number of expected prosecutions. See e.g., Anderson, 141
Wn.2d at 365 (declining to address factor eight because “the record tells us
nothing about the number of persons who are prosecuted for the offense”);
Warfield, 119 Wn. App. at 883 (declining to address factor eight because the
parties did not provide “statistical analysis concerning the number of expected
prosecutions if we find that RCW 9.41.190 creates a strict liability offense”).
35
No. 80045-1-I/36
Recently, courts address this factor by looking at the number of appellate
cases referenced in legal databases. In Yishmael I, this court looked at the
number of appellate opinions on the criminal prosecution of the unlawful practice
of law. 6 Wn. App. 2d at 220. This court determined that because there were
few appellate opinions, it is “reasonable to infer that criminal prosecutions for this
offense are rare,” and “[t]his factor weighs in favor of strict liability.” Id. at 220.
But, in Yishmael II, the Supreme Court came to the opposite conclusion: “The
fewer the expected prosecutions, the more likely the legislature meant to require
the prosecuting officials to go into the issue of fault; the greater the number of
prosecutions, the more likely the legislature meant to impose liability without
regard to fault.” 195 Wn.2d at 171-72 (quoting 1 Wayne R. LaFave & Austin W.
Scott, Jr., Substantive Criminal Law § 5.5(a), at 520 (3d ed. 2017)). The
Supreme Court determined, “given the very few prosecutions mentioned in the
appellate record it is likely the legislature did not intend many prosecutions. This
factor weighs against strict liability.” Id. at 172.
Here, the State asserts, according to Westlaw, 13 appellate courts have
reviewed “more than 60 cases” where the State charged a defendant with the
crime of interfering with the reporting of domestic violence. The State argues
these 60 cases weigh in favor of finding strict liability.
Another indicator of whether a crime is rare is whether a pattern jury
instruction exists for the specific crime. Yishmael II, 195 Wn.2d at 169
13 Westaw is an online legal database and research service.
36
No. 80045-1-I/37
(considering the nonexistence a pattern jury instruction for the crime of the
unlawful practice of law as a sign that prosecutions of the crime were rare). A
pattern jury instruction for the crime of interfering with the reporting of domestic
violence exists. See WPIC 36.57. And, in Christian’s case, the trial court
provided the jury with an instruction based on the pattern instruction.
Following the Supreme Court’s analysis in Yishmael II, this factor weighs
in favor of strict liability.
While we need not consider all the Bash factors, on balance, the factors
weigh in favor of strict liability. Therefore, we affirm and hold that interfering with
the reporting of domestic violence is a strict liability crime. 14
WE CONCUR:
14Christian challenges the validity of the charging document and to-
convict instructions for missing a mens rea element. Because the crime of
interfering with the reporting of domestic violence is a strict liability crime, the to-
convict instruction and charging document were sufficient.
37