State of Washington v. Freedom T.J. Morganflash ( 2019 )

FILED
MAY 23, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36147-1-III
Respondent, )
)
v. )
)
FREEDOM T.J. MORGANFLASH, ) UNPUBLISHED OPINION
)
Appellant. )
)
SIDDOWAY, J. — Freedom T.J. Morganflash was convicted by an Asotin County
jury in 2018 of third degree assault and obstructing a police officer. On appeal, he
challenges his assault conviction. He contends that the State failed to present sufficient
evidence to support each element of third degree assault, and that the trial court erred by
failing to instruct the jury that it must find that the assaultive act was done with unlawful
force. He also asks this court to strike the discretionary legal financial obligations
No. 36147-1-III
State v. Morganflash
(LFOs) and other fees imposed at sentencing. We hold that the evidence was sufficient to
support the verdict and that the instructions properly advised the jury of the essential
elements of third degree assault. We also hold, however, that certain LFOs imposed are
improper. Thus, we affirm the conviction, but remand for the trial court to strike the
discretionary LFOs, the criminal filing fee, and the deoxyribonucleic acid (DNA) fee.
FACTS
Midmorning on February 5, 2018, Asotin police officer Greg Adelsbach
responded to a report that a man who met the description of a person involved in recent
vehicle prowls was seen in the area of a sewer plant and a school playground. After
driving around awhile, Officer Adelsbach saw Mr. Morganflash, who matched the
description of the suspicious male, near the school football field. Officer Adelsbach
called for backup. Deputy Jesse Carpenter of the Asotin County Sheriff’s Office
responded, contacted Mr. Morganflash, and asked him to walk back to the patrol car.
Officer Adelsbach stood between Mr. Morganflash and the patrol car. Thinking
that Mr. Morganflash was preparing to run away, Officer Adelsbach lifted his arm in
front of Mr. Morganflash and told him he needed to stop. Mr. Morganflash lunged
toward Officer Adelsbach, grabbed the officer’s collar, and the two men wrestled until
Deputy Carpenter helped take Mr. Morganflash to the ground. The officers struggled to
get Mr. Morganflash into handcuffs and into the patrol car. He remained confrontational
during the booking process.
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The State charged Mr. Morganflash with third degree assault, obstructing a law
enforcement officer, and custodial assault. The officers testified at his jury trial that a
suspect who gets hold of an officer’s neck area is particularly dangerous because he can
cause an officer to lose balance, fall, and possibly lose control over the officer’s weapons.
Mr. Morganflash testified that he tripped on a rock, stumbled, and accidentally grabbed
Officer Adelsbach’s collar to catch himself.
As is customary in Asotin County, the State drafted jury instructions, which
defense counsel approved without objection. The “to convict” instruction on third degree
assault advised the jury that the State was required to prove beyond a reasonable doubt
each of the elements, including that Mr. Morganflash assaulted Officer Adelsbach.
Instruction 5 defined assault as follows:
An assault is an intentional touching or striking of another person,
with unlawful force, that is harmful or offensive regardless of whether any
physical injury is done to the person. A touching or striking is offensive if
the touching or striking 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.
Clerk’s Papers (CP) at 55. The jury found Mr. Morganflash guilty of third degree assault
and obstructing a law enforcement officer, and found him not guilty of custodial assault.
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Without consideration of Mr. Morganflash’s ability to pay, the court imposed
discretionary and mandatory LFOs totaling $2,590.
EVIDENCE OF THIRD DEGREE ASSAULT
Mr. Morganflash challenges the sufficiency of the evidence to support each
element of third degree assault. Although he concedes on appeal that he intentionally
touched Officer Adelsbach, he contends the evidence does not show that the touch
constituted “unlawful force” that was “harmful or offensive.”
When an appellant challenges the sufficiency of the evidence to support a criminal
conviction, we view the evidence in the light most favorable to the prosecution and ask
whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Dreewes, 192 Wash. 2d 812, 821, 432 P.3d 795 (2019).
All reasonable inferences from the evidence are drawn in favor of the State. Id. at 821-
22. Circumstantial evidence is considered as reliable as direct evidence. State v.
Cardenas-Flores, 189 Wash. 2d 243, 266, 401 P.3d 19 (2017).
To convict Mr. Morganflash of third degree assault, the State was required to
prove that he assaulted “a law enforcement officer or other employee of a law
enforcement agency who was performing his or her official duties at the time of the
assault.” RCW 9A.36.031(1)(g). The common law definition of assault is found in
Washington Pattern Jury Instruction (WPIC) 35.50. State v. Villanueva-Gonzalez, 180
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Wn.2d 975, 982-983, 329 P.3d 78 (2014) (citing 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 35.50, at 547 (3d ed. 2008)).
Here, instruction 5, based on bracketed choices in WPIC 35.50, states in the first
paragraph that an assault is an intentional touching, with “unlawful force,” that is harmful
or offensive. CP at 55. The second paragraph provides an additional definition from
WPIC 35.50, and states that an assault is also an act done with intent to inflict bodily
injury upon another, although failing to accomplish bodily injury. Id. These alternative
definitions do not create alternative means of committing the crime of assault; rather, the
optional definitions in WPIC 35.50 merely elaborate upon and clarify the term “assault.”
State v. Smith, 159 Wash. 2d 778, 785-86, 154 P.3d 873 (2007). Thus, the State is not
required to present substantial evidence to support each definition of assault presented to
the jury, and the jury does not need to be unanimous regarding the definition used. Id. at
787-88.
Focusing on the first definition in instruction 5, Mr. Morganflash contends the
State failed to present sufficient evidence that his intentional touch was with unlawful
force or that it was harmful or offensive. Generally the term “unlawful force” is
necessary to the definition of assault only when the defendant claims self-defense or that
the use of force was somehow lawful. State v. Calvin, 176 Wash. App. 1, 20, 316 P.3d 496
(2013). Mr. Morganflash did not argue self-defense, but he did claim that he stumbled
and grabbed Officer Adelsbach’s collar by accident. Officer Adelsbach and Deputy
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Carpenter, on the other hand, testified that Mr. Morganflash lunged into Officer
Adelsbach, grabbed the officer’s collar, and refused to let go as the men struggled. The
jury had sufficient evidence to conclude that Mr. Morganflash’s act of grabbing the
officer’s collar was with unlawful force.
A touching is offensive if it would offend an ordinary person who is not unduly
sensitive. Cardenas-Flores, 189 Wash. 2d at 268 (citing WPIC 35.50, at 164 (3d ed. Suppl.
2014-15)). Mr. Morganflash appears to claim that grabbing an officer’s collar would not
be offensive to the ordinary law enforcement officer. But the standard is the ordinary
person’s apprehension of offense, not the ordinary police’s officer’s apprehension.
Officer Adelsbach testified that he feared for his safety when Mr. Morganflash grabbed
his neck area and refused to let go. This evidence was sufficient to support a rational
juror’s conclusion that grabbing the officer’s collar would have been harmful or offensive
to the ordinary person.1
ASSAULT INSTRUCTION
Mr. Morganflash contends the second definition of assault in instruction 5 failed to
advise the jury of an essential element of third degree assault: that the act was done “with
unlawful force.” We review a jury instruction de novo when the challenge is based on a
1
Mr. Morganflash challenges solely the first definition of assault in instruction 5,
but the jury arguably also had sufficient evidence to find assault by way of the second
definition used in that instruction. See Smith, 159 Wash. 2d at 787-88.
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misstatement of the law. State v. Brooks, 142 Wash. App. 842, 847, 176 P.3d 549 (2008).
A jury instruction must correctly state the law, must not be misleading, and must allow
counsel to argue the theory of the case. Id. We will consider a challenge to the jury
instructions raised for the first time on appeal when the challenge implicates a
constitutional right. Id. Mr. Morganflash contends he was denied due process of law
because the trial court’s instruction relieved the State of its burden to prove every element
of the crime. Because his challenge implicates a constitutional right, it is properly before
us for review.
As discussed above, the language “with unlawful force” is necessary to an assault
definition only if the defendant claims self-defense or another lawful use of force. Here,
Mr. Morganflash claims an accidental or unintentional use of force against Officer
Adelsbach. Only the second definition of assault in instruction 5 fails to include the
phrase “with unlawful force,” but this definition describes an act done with the intent to
inflict bodily injury. Necessarily, the use of force to achieve that intent would not be
accidental or unintentional. Under the circumstances of this case and Mr. Morganflash’s
defense, the assault definitional instruction did not misstate the law, was not misleading,
and allowed Mr. Morganflash to argue that the accidental nature of his act failed to
support either definition of assault in instruction 5. Thus the failure to use the phrase
“with unlawful force” in the second definition, if error, was harmless. See State v.
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Thomas, 150 Wash. 2d 821, 844-45, 83 P.3d 970 (2004) (omission in a jury instruction of an
element of the charged offense is harmless if it appears beyond a reasonable doubt that
that the error did not contribute to the verdict).
LFOs
In State v. Blazina, 182 Wash. 2d 827, 839, 344 P.3d 680 (2015), the Washington
Supreme Court held that trial courts have a duty under former RCW 10.01.160(3) (2015)
to make an individualized inquiry into a defendant’s current and future ability to pay
before imposing discretionary LFOs. The Washington Legislature in March 2018
enacted Engrossed Second Substitute House Bill 1783 (H.B. 1783), which amended
RCW 10.01.160(3) to prohibit the imposition of discretionary costs on indigent
defendants, and also amended former RCW 36.18.020(2)(h) (2015) to prohibit the
imposition of the $200 criminal filing fee on indigent defendants. State v. Ramirez, 191
Wash. 2d 732, 739, 426 P.3d 714 (2018). H.B. 1783 was effective as of June 7, 2018, and
applies prospectively to any case that was not final when the amendments were enacted.
Ramirez at 747-49.
Mr. Morganflash was sentenced on June 4, 2018, and his case is not yet final. The
trial court imposed discretionary fees of $40 (sheriff service fee) and $750 (court-
appointed attorney), as well as the $200 criminal filing fee and the $100 fee for DNA
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collection. Additionally, the court imposed a fine of $1,000 as authorized by RCW
9A.20.021(1)(c) (the fine for a class C felony such as third degree assault may not exceed
$10,000). The trial court entered an order of indigency in June 2018, when Mr.
Morganflash filed his notice of appeal. He now seeks removal of the discretionary fees,
the criminal filing fee, the DNA fee, and the fine from his LFOs. The State concedes that
the criminal filing fee and the DNA fee should be stricken, but asks this court to decline
review of the sheriff’s fee, the court-appointed attorney fee, and the fine as inadequately
briefed on appeal.
On the basis of the amendments enacted in H.B. 1783 and Ramirez, which were
both cited by Mr. Morganflash, and in light of his status as indigent, we hold that the
discretionary LFOs, the criminal filing fee, and the DNA fee were improperly imposed
on Mr. Morganflash. The $1,000 fine authorized by RCW 9A.20.021(1)(c) is not a court
cost subject to RCW 10.01.160(3) and is not subject to review for the first time on
appeal. State v. Clark, 191 Wash. App. 369, 376, 362 P.3d 309 (2015).
CONCLUSION
The record is more than sufficient to support the jury’s verdict that Mr.
Morganflash committed third degree assault when he grabbed and held a police officer’s
collar. The record also supports the suitability of the assault definitions in instruction 5.
Accordingly, the judgment is affirmed. The sentence is remanded to superior court,
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No. 36147-1-III
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however, to strike the criminal filing fee, the DNA fee, and the discretionary LFOs,
including the sheriffs fee and the court-appointed attorney fee.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
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Siddoway, J.
WE CONCUR:
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