233693MAJ

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Court of Appeals Division III
State of Washington

Opinion Information Sheet

Docket Number: 23369-3-III
Title of Case: State of Washington v. Ray Allen Godsey
File Date: 01/24/2006


SOURCE OF APPEAL
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Appeal from Superior Court of Spokane County
Docket No: 04-1-02016-7
Judgment or order under review
Date filed: 09/10/2004
Judge signing: Hon. Salvatore F Cozza


JUDGES
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Authored by Stephen M Brown
Concurring: Kenneth H. Kato
Philip James Thompson


COUNSEL OF RECORD
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Counsel for Appellant(s)
Jason Brett Saunders
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Susan F Wilk
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Counsel for Respondent(s)
Kevin Michael Korsmo
Attorney at Law
1100 W Mallon Ave
Spokane, WA 99260-2043

Andrew J. III Metts
Spokane County Pros Offc
1100 W Mallon Ave
Spokane, WA 99260-0270


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON )
) No. 23369-3-III
Respondent, )
) Division Three
v. )
)
RAY ALLEN GODSEY, ) PUBLISHED OPINION
)
Appellant. )

BROWN, J. -- Ray Godsey was convicted for various crimes in Spokane County.
On appeal, Mr. Godsey contends the trial court erred in allowing evidence
of statements he made when arrested and while later receiving medical care,
and in refusing to give his proposed attempted third-degree assault
instruction. Further, he contends his convictions for both resisting
arrest and third-degree assault violate double jeopardy principles.
Lastly, he contends the evidence is insufficient to support his convictions
for possessing drug paraphernalia and making a false statement. We reject
Mr. Godsey's contentions except one. We hold the trial court erred in
allowing statements violating Mr. Godsey's physician-patient privilege.
Accordingly, we reverse Mr. Godsey's conviction for possessing drug
paraphernalia, but otherwise affirm.

FACTS
On May 17, 2004, an undercover task force sought Ray Godsey on warrants. A
person suspected to be Mr. Godsey was seen by United States Deputy Marshall
Kevin Kilgore leaving a Spokane convenience store. Deputy Kilgore reported
his observation to Spokane County Deputy Craig Pannell. Deputy Pannell
exited his vehicle and yelled, 'Police! Ray Godsey! Stop!' Report of
Proceedings (RP) at 294. Mr. Godsey ran and climbed a nearby fence.
Deputy Pannell followed and again ordered him to stop. Mr. Godsey stopped,
turned around and faced Deputy Pannell with his fists up. He said, 'Come
on,' and took a step toward Deputy Pannell. RP at 402. To keep Mr. Godsey
at a distance, Deputy Pannell kicked Mr. Godsey twice in the midsection.
Mr. Godsey resumed a defensive stance. Deputy Kilgore struck him in the
face with his fist.
Mr. Godsey was wrestled to the ground, struggling against the attempts
to handcuff him. He was told he was under arrest for assaulting a police
officer and for warrants. At that time, Deputy Pannell informed Mr. Godsey
he had the right to remain silent and the right to an attorney. Deputy
Pannell asked Mr. Godsey, 'Are you Ray Godsey?'; Mr. Godsey responded, 'I
am not Ray, I have never been called that.' RP at 407. In a search of Mr.
Godsey's person subsequent to arrest, officers found two clear pipes with
burn marks, a syringe, and two zip lock baggies. Subsequent tests on the
baggies revealed 1/10 gram of methamphetamine residue.
On the way to the Spokane County Jail, Mr. Godsey was belligerent and
threatened the officers. Specifically, he stated, '{y}ou are going to pay
for this,' to Deputy Pannell. RP at 308. When Deputy Pannell asked if he
was threatening him, Mr. Godsey reportedly responded, '{t}ake it for what
you want, but I know where you and a lot of other cops live.' RP at 308.
Prior to being booked into jail, Mr. Godsey was transported to
Deaconess Hospital for injuries to his lip and chin. In the presence of
law enforcement, medical personnel questioned Mr. Godsey about drug use.
Mr. Godsey eventually admitted using methamphetamine regularly for the past
year, including the day before.
The State charged Mr. Godsey with resisting arrest, third-degree
assault with intent to prevent or resist lawful apprehension or detention,
making a false or misleading statement, possession of drug paraphernalia,
and possession of methamphetamine.
In a CrR 3.5 hearing, Mr. Godsey challenged certain post-arrest
statements, including his denial he was Ray Godsey, statements allegedly
threatening Deputy Pannell, and questioning by medical personnel. He
argued the statements were not voluntary and obtained in violation of his
Miranda1 rights. The court held all statements were admissible. At trial,
officers testified to Mr. Godsey's admissions of drug use made at the
hospital without further objection.
At trial, Mr. Godsey requested the court instruct the jury on the lesser-
included offense of attempted third-degree assault. The court refused to
give the instruction and held, 'there is no such thing . . . as an
attempted {assault.}' RP at 461.
Mr. Godsey was convicted of all counts. He appealed.

ANALYSIS
A. Statement Issues
The issue is whether the court erred in allowing the State to present
statements made by Mr. Godsey when arrested and while receiving medical
treatment.
'Miranda warnings must be given before custodial interrogations by agents
of the State; otherwise, the statements obtained are presumed to be
involuntary.' State v. Willis, 64 Wn. App. 634, 636, 825 P.2d 357 (1992)
(citing State v. Sargent, 111 Wn.2d 641, 647-48, 762 P.2d 1127 (1988)).
'{T}he term 'interrogation' under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police . .
. that the police should know are reasonably likely to elicit an
incriminating response from the suspect.' Sargent, 111 Wn.2d at 650
(quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L.
Ed. 2d 297 (1980)).
However, '{v}olunteered statements of any kind made to police are not
barred by the Fifth Amendment.' Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966). Further, '{a} voluntary in-custody
statement does not become the product of an 'in-custody interrogation'
simply because an officer in the course of appellant's narration, asks the
defendant to explain or clarify something he has already said voluntarily.'
Berna v. State, 282 Ark. 563, 568, 670 S.W.2d 434 (1984) (relying on the
definition of interrogation from Innis, 446 U.S. at 300-01).
Here, Mr. Godsey mainly contends Deputy Pannell's follow-up question asking
what he meant by the statement, '{y}ou are going to pay for this,'
constituted interrogation because it was designed to solicit an
incriminating response. RP at 308. However, Mr. Godsey was not charged
for threatening Deputy Pannell. Thus, the prejudicial effect is unclear.
Further, Mr. Godsey's original 'threat' was a voluntary, unsolicited
statement, not subject to Fifth Amendment protection. Deputy Pannell's
follow-up query asking Mr. Godsey if his statement was a threat should be
interpreted as a neutral inquiry merely intended to clarify what had
already been said. Mr. Godsey's response may be viewed as a continuation
of his previously volunteered statement. See Stone v. Arkansas, 321 Ark.
46, 900 S.W.2d 515 (1995) (finding officer's request for clarification
after a defendant's voluntary admission of guilt to not constitute
interrogation for Miranda purposes). In sum, the trial court did not err.
But, the admission of Mr. Godsey's drug use confessions made during
his hospital treatment and reported by the law enforcement officers at
trial violated his right to physician-patient confidentiality under RCW
5.60.060(4). See State v. Gibson, 3 Wn. App. 596, 598-600, 476 P.2d 727
(1970). Under the circumstances described at the hospital, the law
officers were effectively hospital agents. See id. The hospital personnel
questioned Mr. Godsey about his drug usage for treatment purposes. The
trial court erred at the CrR 3.5 hearing in allowing the evidence at trial.
Mr. Godsey's statements to physicians comprise the sole evidence of the
'use' of the paraphernalia found in his possession. Although other
evidence in the record would support bare possession of drug paraphernalia,
RCW 69.50.412(1) proscribes the 'use' of drug paraphernalia to inject,
inhale or otherwise ingest a controlled substance. RCW 69.50.412(1). Bare
possession is not unlawful. Id. The conviction is wrongfully supported by
the hospital evidence because the State argued at trial that the statements
proved recent use of the drug paraphernalia. Because the remaining
evidence is insufficient, the improper statements were not harmless error.
We agree with Mr. Godsey that the taint of the hospital evidence violating
his physician-patient privilege is strong enough to merit reversal of his
conviction for possessing drug paraphernalia.
B. Proposed Attempted Third Degree Assault Instruction
The issue is whether the court erred in refusing to give the jury a
proposed instruction on attempted third degree assault.
Jury instructions are sufficient if they allow the parties to argue their
theory of the case, and when read as a whole properly inform the jury of
the applicable law. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624
(1999) (citing State v. Rice, 110 Wn.2d 577, 603 757 P.2d 889 (1988)). Our
standard of review depends on whether the trial court's refusal to give a
jury instruction was based on a matter of law or of fact. State v. Walker,
136 Wn.2d 767, 771, 966 P.2d 883 (1998). We review the adequacy of jury
instructions based on an error of law de novo. State v. Clausing, 147
Wn.2d 620, 626-27, 56 P.3d 550 (2002) (citing State v. Pirtle, 127 Wn.2d
628, 656, 904 P.2d 245 (1995)). But, a trial court's refusal to give an
instruction based on the facts of the case is a matter of discretion.
State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996).
'A lesser included offense instruction is proper only if each element of
the lesser offense is necessarily included in the charged offense and
'there is sufficient evidence to support an inference that the lesser crime
was committed.'' State v. Charles, 126 Wn.2d 353, 355, 894 P.2d 558 (1995)
(quoting State v. Speece, 115 Wn.2d 360, 362, 798 P.2d 294 (1990)). Mr.
Godsey requested an instruction on attempted third degree assault, but the
court denied his request, reasoning no such offense exists.
'Washington recognizes three means of assault: (1) assault by actual
battery; (2) assault by attempting to inflict bodily injury on another
while having apparent present ability to inflict such injury; and (3)
assault by placing the victim in reasonable apprehension of bodily harm.'
State v. Hall, 104 Wn. App. 56, 63, 14 P.3d 884 (2000) (citing State v.
Byrd, 125 Wn.2d 707, 712-13, 887 P.2d 396 (1995)). Here, the jury was
instructed on the latter two means of assault.
Contrary to the trial court's reasoning, Washington courts have recognized
the lesser-included offense of attempted assault by placing the victim in
reasonable apprehension of bodily harm. State v. Music, 40 Wn. App. 423,
432, 698 P.2d 1087 (1985); Hall, 104 Wn. App. at 64-65. Because the
'apprehension' type of assault lacks an attempt element, it is feasible to
convict someone of attempting an assault by such means. Music, 40 Wn. App.
at 432.
The State concedes this error and admits attempted third degree assault can
be a lesser-included offense of third-degree assault. Nonetheless, the
State contends the instruction was not warranted under the facts because
the evidence fails to demonstrate Mr. Godsey took a substantial step to use
unlawful force to place Deputy Pannell in apprehension of bodily injury,
but was prevented from carrying out the act. See Hall, 104 Wn. App. at 65
(citing Music, 40 Wn. App. at 432). The State is correct.
Mr. Godsey faced Deputy Pannell with his fists up, invited him to '{c}ome
on,' and took a step toward him. RP at 402. At trial, Deputy Kilgore
characterized Mr. Godsey's actions as '{a} charge. He was in a fighting
stance and he charged him.' RP at 298. Similarly, Deputy Pannell likened
Mr. Godsey's actions to 'charging' and stated, 'he came at me with his
fists up.' RP at 402. At that point, Deputy Pannell felt threatened
enough to kick Mr. Godsey to keep him at a distance. See RP at 405
('Because of his stance, his posture, the look on his face. . . . Then with
his hands up in a fighting stance, that scared me. Then when he came at
me.').
Under these facts, Mr. Godsey completed an assault by means of causing
apprehension of imminent bodily harm; Mr. Godsey clearly created
apprehension in Deputy Pannell, causing him to take defensive measures.
Even when viewed in the light most favorable to Mr. Godsey, no facts
support the idea that Mr. Godsey was prevented from carrying out this type
of assault. Further, it is likely that this conduct falls under the second
means of assault submitted to the jury - an attempt to cause bodily injury.
Thus, an attempt instruction would be barred under Music. See Music, 104
Wn. App. at 432 (declining to recognize an attempt to inflict bodily
injury).
C. Double Jeopardy
The issue is whether Mr. Godsey's convictions for both resisting
arrest and third degree assault violate double jeopardy principles. Mr.
Godsey contends he cannot be convicted of both resisting arrest and assault
arising out of the same incident. He argues because the former is a lesser-
included offense of the latter, the offenses are the same for purposes of
double jeopardy.
The Double Jeopardy Clause of the Fifth Amendment offers three separate
constitutional protections coextensive in Washington. State v. Gocken, 127
Wn.2d 95, 100, 896 P.2d 1267 (1995). 'One aspect of double jeopardy
protects a defendant from being punished multiple times for the same
offense.' State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998).
'{W}here the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one is whether each provision requires proof
of a fact which the other does not.' Blockburger v. United States, 284
U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
Under RCW 9A.76.040(1): 'A person is guilty of resisting arrest if he
intentionally prevents or attempts to prevent a peace officer from lawfully
arresting him.' Third degree assault required the State to prove Mr.
Godsey, '{w}ith intent to prevent or resist the execution of any lawful
process or mandate of any court officer or the lawful apprehension of
himself or another person, assault{ed} another.' RCW 9.36.031(1)(a).
Here, each of the statutory provisions does not require proof of an
independent fact. Both charges require intent to prevent arrest. Assault
under RCW 9.36.031(1)(a) necessarily requires an assault; resisting arrest
does not. But, resisting arrest requires no proof independent of that also
required for an assault charge under RCW 9A.36.031(1)(a). See RCW
9A.36.031(1)(a); RCW 9A.76.040(1). Thus, resisting arrest is a lesser-
included charge of assault under RCW 9A.36.031(1)(a). See State v.
Marshall, 37 Wn. App. 127, 128, 678 P.2d 1308 (1984) (recognizing, without
analysis, that resisting arrest is a lesser-included offense of assault
under RCW 9A.36.031(1)(a)).
Here, assuming the two offenses are the same for purposes of double
jeopardy, it does not appear the same evidence was used to establish both
charges. At trial, the State recognized the overlap between the two
offenses, but did not rely on the same conduct to establish the assault
charge as used to prove the resisting arrest charge. It is clear the State
treated Mr. Godsey's fleeing from the scene and struggle to avoid being
handcuffed, and the physical altercation between Deputy Pannell and Mr.
Godsey as separate offenses, and argued that theory of the case to the
jury. See RP at 487-89 ('there is some overlap between {the assault} and
the resist because, okay, he is resisting at first, and then he is
assaulting in an attempt to aid his resist, and then he is continuing to
struggle with them while they are putting the handcuffs on'). RP at 489.
Accordingly, double jeopardy principles are not offended here.
D. False Statement Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Godsey's conviction
for making a false statement.
In criminal case evidence sufficiency challenges, this court treats
the State's evidence as true and draws all reasonable inferences from all
the evidence in favor of the State. State v. Salinas, 119 Wn.2d 192, 201,
829 P.2d 1068 (1992). The conviction will not be overturned if a rational
trier of fact could find the essential elements of the crime beyond a
reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628
(1980). This court defers to the trier of fact to weigh evidence and
resolve conflicting testimony. State v. Bryant, 89 Wn. App. 857, 869, 950
P.2d 1004 (1998) (citing State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788
(1996)).
Under RCW 9A.76.175: 'A person who knowingly makes a false or
misleading material statement to a public servant is guilty of a gross
misdemeanor. 'Material statement' means a written or oral statement
reasonably likely to be relied upon by a public servant in the discharge of
his or her official powers or duties.'
Mr. Godsey was charged and convicted under RCW 9A.76.175 for denying
he was Ray Godsey at the time of his arrest. Ignoring that he was merely a
suspect when first encountered, Mr. Godsey contends insufficient evidence
proves this statement was material because law enforcement knew he was Ray
Godsey. Thus, he incorrectly contends, they did not rely on the statement.
Even so, the statute provides a statement is material if it is 'reasonably
likely' to be relied upon by a public servant. See id. It does not
require actual reliance. Mr. Godsey cites distinguishable cases because
they are based on a different statutory offense, obstructing a law
enforcement officer, which courts have interpreted to require reliance by
law enforcement. See RCW 9A.76.020; see also State v. White, 97 Wn.2d 92,
99-100, 640 P.2d 1061 (1982); City of Sunnyside v. Wendt, 51 Wn. App. 846,
851-52, 755 P.2d 847 (1988); State v. Contreras, 92 Wn. App. 307, 317, 966
P.2d 915 (1998); State v. Williamson, 84 Wn. App. 37, 42-43, 924 P.2d 960
(1996).
Here, the jury was presented with evidence Mr. Godsey told officers he
was not Ray Godsey when asked by officers to confirm his identity for
purposes of arrest. The jury could reasonably infer Mr. Godsey knew it was
'reasonably likely' officers would rely on this information to confirm his
identity. Thus, the evidence was sufficient for the jury to reasonably
infer the statement was material.

Affirmed in part. Reversed in part.

Brown, J.

WE CONCUR:

Kato, C.J.

Thompson, J. Pro Tem.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
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