State Of Washington, V Pedro L. Tomas ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
July 31, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50340-9-II
Respondent,
v. UNPUBLISHED OPINION
PEDRO LOPEZ TOMAS, aka PABLO LOPEZ
TOMAS ESTEBAN,
Appellant.
MAXA, C.J. – Pedro1 Lopez Tomas appeals his conviction of third degree assault. The
conviction arose from an incident in which Lopez Tomas hit a police officer in the chest with his
head after Lopez Tomas had been handcuffed.
We hold that (1) the State presented sufficient evidence to prove that Lopez Tomas acted
with intent despite evidence that he was intoxicated, (2) the State presented sufficient evidence to
prove the contact Lopez Tomas initiated was harmful or offensive to the officer, and (3) Lopez
Tomas’s claim that his detention was unlawful cannot be raised for the first time on appeal
because it does not involve a manifest constitutional error. Accordingly, we affirm Lopez
Tomas’s conviction.
FACTS
Centralia police officer Mike Smerer was on patrol when he received a dispatch report of
a person in the middle of the street waving a knife. When Smerer arrived at the location he did
1
At trial, Lopez Tomas referred to himself as Pablo.
No. 50340-9-II
not see anyone with a knife. However, he saw a house matching the description given on the
dispatch call and the door was open. Smerer and another officer approached the house to
investigate.
After the officers announced their presence, Lopez Tomas came out of the house. Smerer
noted that Lopez Tomas matched the description given by the dispatch call and looked sweaty
and nervous. Lopez Tomas appeared to be under the influence of some type of drug. Smerer
asked Lopez Tomas if he lived in the house and Lopez Tomas replied that he did not.
Smerer considered Lopez Tomas’s behavior odd and thought that he was a flight risk.
Smerer placed Lopez Tomas in handcuffs in order to continue investigating. Lopez Tomas’s
behavior became more erratic. Lopez Tomas would not sit still. He attempted to stand up
numerous times, and Smerer repeatedly asked him to sit down.
While handcuffed, Lopez Tomas went to one knee and jumped up in the direction of
Smerer, striking Smerer in the chest with his head. Lopez Tomas hit Smerer hard enough to
move Smerer’s foot back but not hard enough to knock him over. Smerer then pushed Lopez
Tomas’s head away and Lopez Tomas fell to the ground.
The State charged Lopez Tomas with third degree assault for hitting his head against
Smerer. When he was arrested, Lopez Tomas told the arresting officer that he remembered the
incident, that he was drunk at the time, and that he did stupid things when he was drunk.
Before trial, Lopez Tomas did not raise any objections to his detention or claim that his
detention before he struck Smerer was unconstitutional.
Lopez Tomas waived his right to a jury and the trial court conducted a bench trial.
Smerer testified that he was hit when Lopez Tomas “threw his body up towards [him] with his
head leading.” Report of Proceeding (RP) at 15. He described Lopez Tomas’s motion of getting
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No. 50340-9-II
up from his knees and hitting Smerer as a “squat thrust.” RP at 15. The prosecutor did not
specifically ask Smerer whether he believed that the contact was harmful or offensive.
Lopez Tomas testified that he drank a lot of alcohol the night before the incident and that
he could not remember the incident with Smerer. He testified that when he woke up in the
hospital he was told that his “system was full of alcohol.” RP at 37.
The trial court found Lopez Tomas guilty of third degree assault. The court entered
findings of fact that Lopez Tomas’s actions were volitional in that he purposefully lunged toward
Smerer. Therefore, the trial court concluded that Lopez Tomas had intentionally struck Smerer
with his head. The trial court also entered a finding of fact that the contact was offensive
because it was uninvited.
Lopez Tomas appeals his conviction.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Lopez Tomas argues that the State did not present sufficient evidence to convict him of
third degree assault because the State did not prove both that he acted with intent when he hit
Smerer with his head and that the contact with Smerer was harmful or offensive. We disagree.
1. Standard of Review
The test for determining sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found guilt
beyond a reasonable doubt. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).
Following a bench trial, we review a trial court’s ruling to determine whether substantial
evidence supports the trial court’s contested findings of fact and whether the findings of fact
support the conclusions of law. State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014).
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No. 50340-9-II
We treat findings of fact supported by substantial evidence and unchallenged findings of fact as
verities on appeal. Id. at 106. We review de novo challenges to the trial court’s conclusions of
law. Id.
In a sufficiency of the evidence claim, the defendant admits the truth of the evidence and
the court views the evidence and all reasonable inferences drawn from that evidence in the light
most favorable to the State. Cardenas-Flores, 189 Wn.2d at 265-66. Credibility determinations
are made by the trier of fact and are not subject to review. Id. at 266. Circumstantial and direct
evidence are equally reliable. Id.
2. Elements of Assault
Under RCW 9A.36.031(1)(g), a person is guilty of third degree assault if he or she
“[a]ssaults a law enforcement officer . . . who was performing his or her official duties at the
time of the assault.” The criminal code does not define assault. Therefore, we apply the
common law definitions. State v. Koch, 157 Wn. App. 20, 34, 237 P.3d 287 (2010).
One definition of assault under common law is assault by actual battery. See Cardenas-
Flores, 189 Wn.2d at 266. Assault by actual battery involves two elements. First, there must be
an intentional touching or striking of another person. Id. The State is not required to show that
the defendant intended to inflict harm. Id. Instead, the intent necessary for assault by actual
battery is only the intent to do the physical act constituting the assault. Id.
Second, the touching or striking must be harmful or offensive. Id. The State need not
show that the touching resulted in physical injury. Id.
3. Intent to Assault
Lopez Tomas argues that the State did not present sufficient evidence that he
intentionally assaulted Smerer. We disagree.
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No. 50340-9-II
The trial court found that Lopez Tomas “jumped up” from one knee in the direction of
Smerer. Clerk’s Papers (CP) at 13. The court also found that Lopez Tomas’s actions were
volitional because he “purposely lung[ed] forward” toward Smerer. CP at 13. Lopez Tomas
does not challenge these findings and therefore they are verities on appeal. Homan, 181 Wn.2d
at 106. In any event, these findings are supported by substantial evidence. Smerer testified at
trial that Lopez Tomas was on his knees a few feet away and thrusted himself at Smerer. Smerer
testified also that the distance between them was enough that Lopez Tomas would not have hit
him if Lopez Tomas was merely stumbling. Viewed in the light most favorable to the State, this
evidence supports an inference that Lopez Tomas acted intentionally in striking Smerer with his
head.
Lopez Tomas argues that he could not have formed the intent necessary to commit assault
because he was voluntarily intoxicated. Under RCW 9A.16.090, if a crime requires a particular
mental state, voluntary intoxication may be considered in determining such mental state. As a
result, voluntary intoxication can be a defense to assault if it prevented the defendant from
forming the required intent. State v. Kruger, 116 Wn. App. 685, 692, 67 P.3d 1147 (2003).
Lopez Tomas claims that he presented sufficient evidence of voluntary intoxication, which
precluded the State from proving intent beyond a reasonable doubt.
However, the trial court concluded that Lopez Tomas’s striking of Smerer was
intentional. This conclusion reflects the court’s rejection of the argument that Lopez Tomas’s
intoxication prevented him from forming an intent to assault Smerer. Substantial evidence
supports this conclusion.
We hold that sufficient evidence supported the trial court’s conclusion that Lopez Tomas
intentionally assaulted Smerer.
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No. 50340-9-II
4. Harmful or Offensive Contact
Lopez Tomas argues that the State did not present sufficient evidence that his contact
with Smerer was harmful or offensive. We disagree.
The trial court found that Lopez Tomas’s striking of Smerer was offensive because it was
uninvited. Lopez Tomas does not challenge this finding, and therefore it is a verity on appeal.
Homan, 181 Wn.2d at 106. In any event, the finding is supported by substantial evidence.
Smerer testified that the contact was uninvited. Lopez Tomas threw his body up toward Smerer
and hit him in the chest, and the contact was forceful enough to move Smerer’s foot backwards.
And Smerer immediately pushed Lopez Tomas’s head away. Viewed in the light most favorable
to the State, this evidence supports an inference that Lopez Tomas’s striking of Smerer was
offensive.
Lopez Tomas cites Cardenas-Flores, 189 Wn.2d at 266-67, for the proposition that for an
assault by actual battery to have occurred, the victim must perceive the contact to be harmful or
offensive. He argues that because Smerer did not testify that the contact was harmful or
offensive to him, the State failed to prove an essential element of the crime. However,
Cardenas-Flores does not hold or even suggest that whether an assault has occurred requires
testimony from the victim regarding his or her perception of the touching. 189 Wn.2d at 266.
The trial court was able to infer from the evidence that the contact was offensive without
Smerer’s testimony that the contact was offensive.
We hold that sufficient evidence supported the trial court’s conclusion that Lopez Tomas
assaulted Smerer by initiating offensive contact.
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No. 50340-9-II
B. UNLAWFUL DETENTION
Lopez Tomas argues for the first time on appeal that the State violated his constitutional
rights by unlawfully detaining him. He claims that because he was unlawfully detained we must
reverse his conviction. We decline to consider this argument.
1. Legal Principles
Under the Fourth Amendment to the United States Constitution and article I, section 7 of
the Washington Constitution, an officer generally cannot seize a person without a warrant. State
v. Weyand, 188 Wn.2d 804, 811, 399 P.3d 530 (2017). However, one exception is a Terry2
investigative detention. Id. “Under this exception, an officer may, without a warrant, briefly
detain a person for questioning if the officer has reasonable suspicion that the person stopped is
or is about to be engaged in criminal activity.” State v. Fuentes, 183 Wn.2d 149, 158, 352 P.3d
152 (2015). For a Terry detention to be valid, the officer must have a “reasonable suspicion of
criminal activity based on specific and articulable facts.” Fuentes, 183 Wn.2d at 158.
We review the validity of an investigative detention by considering the reasonableness of
the officer’s suspicion given the totality of the circumstances known to the officer. Weyand, 188
Wn.2d at 811. “The totality of circumstances includes the officer’s training and experience, the
location of the stop, the conduct of the person detained, the purpose of the stop, and the amount
of physical intrusion on the suspect’s liberty.” Fuentes, 183 Wn.2d at 158.
2. Failure to Object in Trial Court
Lopez Tomas did not argue in the trial court that his investigatory detention was
unlawful. A party generally cannot appeal an error unless there is an objection in the trial court.
State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). One exception is for “manifest
2
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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No. 50340-9-II
error affecting a constitutional right.” RAP 2.5(a)(3); see Kalebaugh, 183 Wn.2d at 583. To
determine whether we consider an unpreserved error under RAP 2.5(a)(3), we inquire whether
(1) the error is truly of a constitutional magnitude, and (2) the error is manifest. Kalebaugh, 183
Wn.2d at 583.
A claim that a law enforcement officer seized the defendant in violation of the Fourth
Amendment raises an issue of constitutional magnitude. State v. Torres, 198 Wn. App. 864,
878-79, 397 P.3d 900, review denied, 189 Wn.2d 1022 (2017). The issue here is whether any
error was manifest.
An error is manifest when the appellant shows actual prejudice. State v. O'Hara, 167
Wn.2d 91, 99, 217 P.3d 756 (2009). The asserted error must have practical and identifiable
consequences in the trial court. Id. Significantly, “[i]f the facts necessary to adjudicate the
claimed error are not in the record on appeal, no actual prejudice is shown and the error is not
manifest.” Torres, 198 Wn. App. at 877; see also O’Hara, 167 Wn.2d at 99.
Lopez Tomas cannot establish a manifest error because the record does not provide
sufficient information about the “totality of the circumstances” surrounding Smerer’s detention
of Lopez Tomas. Weyand, 188 Wn.2d at 811. For example, Smerer was dispatched based on a
call from a person who apparently reported that a man was in the street waving a butcher knife.
Under certain circumstances, an informant’s tip can provide the basis for a lawful investigative
detention if the tip bears some indicia of reliability. See State v. Z.U.E., 183 Wn.2d 610, 618,
352 P.3d 796 (2015). The record here is not sufficient for this court to determine whether the
call contained information that would have supported a lawful detention of Lopez Tomas.
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No. 50340-9-II
Further, the lack of a sufficient record is directly related to Lopez Tomas’s failure to
object to the detention in the trial court. Because Lopez Tomas did not raise the issue, the State
had no reason to develop the facts surrounding the detention.
We hold that Lopez Tomas cannot show a manifest error regarding his detention.
Accordingly, we decline to consider whether the detention was unlawful.
CONCLUSION
We affirm Lopez Tomas’s conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, C.J.
We concur:
WORSWICK, J.
LEE, J.
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