Detention Of M.h. ( 2022 )

Filed
Washington State
Court of Appeals
Division Two
January 4, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Detention of: No. 55225-6-II
M.H.,
STATE OF WASHINGTON,
Respondent,
v. UNPUBLISHED OPINION
M.H.,
Appellant
PRICE, J. — M.H. appeals the superior court’s rulings in a 180-day involuntary commitment
proceeding. M.H. argues that the superior court erred by (1) ruling that he had committed an act
constituting a felony because there was not fair notice that assault against an off-duty police officer
could constitute third degree assault, and (2) ordering a new trial on the sole issue of whether M.H.
had felony charges dismissed based on a finding of incompetence. We affirm.
FACTS
On July 8, 2020, the State filed a petition for 180 days of involuntary commitment alleging
that M.H. had been found incompetent resulting in dismissal of criminal charges, committed acts
constituting a felony, and presents a substantial likelihood of repeating similar acts.
Sergeant Steven Timmons of the Aberdeen Police Department testified at the commitment
hearing. Sergeant Timmons testified that on April 25, 2019, he was off-duty, working security for
No. 55225-6-II
the Grays Harbor Community Hospital. When working at the hospital, off-duty officers wear their
police uniform and maintain official police powers. The officers also obtain prior authorization
from the police chief before working hospital security. Officers are authorized to take law
enforcement action, including making arrests, if necessary.
While working at the hospital on April 25, Sergeant Timmons had an altercation with M.H.
M.H. was at the nurse’s station in the emergency room and asked for a drink. The nurse said she
would get it and asked M.H. to return to his room. M.H. began cursing at Sergeant Timmons who
was in the vicinity. Sergeant Timmons and other hospital staff directed M.H. to return to his room,
but M.H. began going in the wrong direction.
M.H. turned toward Sergeant Timmons and began cursing at him again. M.H. “took a
swing” at Sergeant Timmons but missed. Clerk’s Papers (CP) at 28. Sergeant Timmons took
M.H.’s arm to try to direct him back to his room, but M.H. slapped his hand away and attempted
to hit Sergeant Timmons again. Sergeant Timmons again directed M.H. back to his room.
Sergeant Timmons followed M.H. as he returned to his room, and M.H. attempted to hit him for a
third time. Sergeant Timmons secured M.H. in his room for safety purposes. A nurse then placed
M.H. in soft restraints. M.H. was arrested and transferred to the city jail.
Dr. Mallory McBride, a clinical psychologist at Western State Hospital (WSH), also
testified at the commitment hearing. Dr. McBride testified that M.H. was diagnosed with
unspecified schizophrenia spectrum or other psychotic disorder. M.H. exhibits paranoid ideations
and delusional beliefs directed toward treatment staff, law enforcement, and government
personnel. Dr. McBride testified that M.H. lacked insight into his condition, as well as the ability
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to exercise proper judgment. Dr. McBride also explained that M.H. had a very extensive mental
health history and was currently on his 18th admission to WSH.
Following the hearing, the superior court found that: (1) M.H. was determined to be
incompetent, (2) M.H. committed acts that constituted a third degree assault, (3) felony charges
were dismissed, and (4) M.H. presented a substantial likelihood of repeating similar acts. The
superior court ordered 180 days of involuntary treatment.
M.H. filed a motion to reconsider under CR 59. M.H. argued that the superior court should
reconsider its finding that M.H. committed acts constituting third degree assault. M.H. also argued
that the State failed to prove that felony charges were dismissed because M.H. was incompetent.
Shortly after the motion to reconsider was filed, the superior court denied it, in part, on the
ground that Sergeant Timmons was performing official duties at the time M.H. assaulted Sergeant
Timmons. The superior court, however, set a hearing on the issue of whether the State failed to
prove felony charges were dismissed because M.H. was incompetent.
In response to the issue of whether dismissal of charges had been proven, the State argued
that it was a procedural issue rather than a sufficiency of the evidence issue. The State also
explained that although the dismissal order had not been received in time for the initial hearing,
COVID-19 caused a backlog of certified court orders being sent to the superior court and
difficulties getting them filed. The use of remote hearings prevented the State from hand-
delivering a copy of the certified order directly to the superior court at the initial hearing, and the
court clerk would not accept an electronic version. The State, therefore, mailed the certified order
to the superior court five days after the initial hearing. When the mailed copy failed to arrive at
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the superior court, the State delivered a certified copy to the court prior to the hearing on the motion
for reconsideration.
The certified order showed that M.H. was found incompetent to stand trial and a charge of
third degree assault was dismissed without prejudice. M.H. was committed for 72 hours for
evaluation for civil commitment.
Following the reconsideration hearing, the superior court determined that it was in the
interests of justice to grant a retrial on the issue of whether M.H. was found incompetent to stand
trial and criminal charges have been dismissed. The superior court ruled,
Retrial is limited to the issue of whether [M.H.] has been determined to be
incompetent and criminal charges have been dismissed pursuant to RCW
10.77.086(4), and has committed acts constituting a felony. The petitioning
psychologist’s testimony is not required on retrial and the court of retrial may
incorporate by reference this [c]ourt’s original ruling on [M.H.’s] substantial
likelihood of committing similar acts.
CP at 85.
M.H. appeals the trial court’s order on reconsideration.1
ANALYSIS
Under RCW 71.05.280(3), the superior court may enter an order committing a person for
involuntary commitment if the person has committed acts constituting a felony, criminal charges
were dismissed because the person was incompetent, and as a result of a behavioral health disorder,
presents a substantial likelihood of repeating similar acts.
1
Because M.H. appeals only the trial court’s order on reconsideration, any resulting order
following retrial is not in the record on appeal.
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No. 55225-6-II
We review a superior court’s decision on a motion under CR 59 for an abuse of discretion.
In re the Recall of Fortney, 196 Wn.2d 766, 784, 478 P.3d 1061 (2021). However, we review
interpretation of court rules de novo. State v. McEnroe, 174 Wn.2d 795, 800, 279 P.3d 861 (2012).
I. ACTS CONSTITUTING A FELONY
M.H. argues that the superior court erred by denying his motion to reconsider because there
was no evidence that he committed acts constituting a felony. Specifically, M.H. argues that the
third degree assault statute has never been interpreted to include acts committed against off-duty
police officers. According to M.H., if the statute is interpreted to include an assault against an off-
duty officer, like Sergeant Timmons, due process requires that this new interpretation is only
applied prospectively. We disagree.
Under RCW 9A.36.031(g), a person commits assault in the third degree if he assaults a law
enforcement officer performing his or her official duties at the time of the assault.
The due process clauses of the United States and Washington Constitutions require “fair
notice of proscribed criminal conduct and standards to prevent arbitrary enforcement.” State v.
Bass, __ Wn. App. 2d __, 491 P.3d 988, 1004 (2021). “Generally, criminal statutes operate only
prospectively to give fair warning that a violation carries specific consequences.” Id.M.H. is correct in his assertion that no case has interpreted the language in RCW
9A.36.031(g) to include off-duty law enforcement officers. However, in State v. Graham, 130
Wn.2d 711, 717-18, 927 P.2d 227 (1996), our Supreme Court held that an off-duty police officer
working as a private security guard can be performing official duties for the purposes of the crime
of obstructing a police officer.
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No. 55225-6-II
M.H. argues that Graham does not apply here because the underlying alleged crime is
different. We disagree. We see no reason to interpret the concept of official duties under third
degree assault differently than for the purposes of obstructing a police officer.
Due process requires only fair notice. Bass, 491 P.3d at 1004. After Graham, people are
fairly on notice that a law enforcement officer may be executing official duties while off-duty.
Because Graham involved an analogous context, the notice provided by the case fairly applies to
third degree assault even though the case did not directly interpret RCW 9A.36.031(g). M.H. does
not cite to authority providing otherwise. DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122,
126, 372 P.2d 193 (1962) (“Where no authorities are cited in support of a proposition, the court is
not required to search out authorities, but may assume that counsel, after diligent search, has found
none.”).
Because our Supreme Court interpreted official duties to include off-duty law enforcement
officers in 1996, there was fair notice that assaulting an off-duty law enforcement officer would
be considered a felony under RCW 9A.36.031(g). Therefore, it was not a due process violation
for the superior court to determine that M.H.’s acts against Sergeant Timmons constituted a felony.
The superior court did not abuse its discretion by denying M.H.’s motion to reconsider on the
grounds that the State failed to prove M.H. committed acts constituting a felony.
II. GRANT OF NEW TRIAL
M.H. also argues that the superior court erred by granting a new trial on the issue of whether
felony charges had been dismissed because M.H. was incompetent. Because the State failed to
present this evidence at the initial hearing, M.H. argues that the remedy for the resulting
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No. 55225-6-II
insufficient evidence is vacation of the superior court’s finding and dismissal, not a retrial under
CR 59(a). We disagree.
CR 59(a) provides that “[o]n the motion of the party aggrieved, a verdict may be vacated
and a new trial granted to all or any of the parties, and on all issues, or on some of the issues when
such issues are clearly and fairly separable and distinct, or any other decision or order may be
vacated and reconsideration granted.” (Emphasis added.)
Here, the superior court acted within its discretion under CR 59(a) by granting a new trial
on the discrete issue of whether felony charges had been dismissed based on a finding of
incompetence. The issue was clearly and fairly separable and distinct from the issue of whether
M.H. was likely to repeat similar acts. The issues are separate and distinct because they rely on
different evidence for proof. As the trial court noted, it did not need to hear additional evidence
from Sergeant Timmons or Dr. McBride in order to determine whether felony charges were
dismissed based on a finding of incompetence. Therefore, the superior court did not abuse its
discretion by determining that the issues were separate and distinct.2
M.H. also argues that the superior court should not have granted a new trial because it was
improper to give the State more time to collect additional evidence. But this reasoning does not
apply here. Here, the evidence supporting the dismissal of criminal charges existed before the
hearing on the petition for involuntary treatment even began and was not admitted due to an
oversight by the State. This oversight was compounded by complications resulting from the
2
M.H. also argues that the superior court’s findings of fact and conclusions of law must be vacated,
but this argument is misplaced. M.H. did not appeal the trial court’s commitment order, and even
if he had done so, it would be improper for this court to review the commitment order because the
superior court granted a new trial based on M.H.’s motion to reconsider.
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No. 55225-6-II
COVID-19 pandemic which made it more difficult to submit certified documents. This is unlike
a situation where the State does not possess, and fails to present, sufficient evidence, but the
superior court grants the State additional time to investigate and collect evidence. See Appellant’s
Opening Br. at 9-10 (citing In re the Welfare of D.E., 196 Wn.2d 92, 107, 469 P.3d 1163 (2020)).
Therefore, the superior court did not abuse its discretion by granting a new trial on the issue of
whether felony charges had been dismissed because M.H. was incompetent.
CONCLUSION
We affirm the superior court’s denial of reconsideration and grant of a new trial.
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.
PRICE, J.
We concur:
LEE, C.J.
MAXA, J.
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