502417MAJ

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Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 50241-7-I
Title of Case: State of Washington, Respondent v. Dereck
Nicholson, Appellant
File Date: 11/24/2003


SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 01-1-09318-1
Judgment or order under review
Date filed: 03/18/2002


JUDGES
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Authored by Marlin J. Appelwick
Concurring: Anne L Ellington
Faye C. Kennedy


COUNSEL OF RECORD
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Counsel for Appellant(s)
Cheryl D Aza
WA Appellate Project
1305 4th Ave Ste 802
Seattle, WA 98101-2402

Counsel for Respondent(s)
Julie Anne Kays
King Co Pros Office
W554
516 3rd Ave
Seattle, WA 98104-2390

Dennis John McCurdy
Pros Attorneys Ofc/Apellate Unit
1850 Key Tower
700 5th Ave
Seattle, WA 98104


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

STATE OF WASHINGTON, ) ) NO. 50241-
7-I Respondent, ) ) ORDER
PUBLISHING OPINION
v. ) )DERECK ANTHONY
NICHOLSON, II, )
)
Appellant. )
The hearing panel having reconsidered its prior determination not to
publish the opinion filed for the above entitled matter on November 24,
2003, and finding that it is of precedential value and should be published;
now, therefore, it is hereby
ORDERED that the written opinion shall be published and printed in the
Washington Appellate Reports.
Done this day of January, 2004.
FOR THE COURT:

Judge

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) NO. 50241-7-I
Respondent, )
) DIVISION ONE
v. ) ) UNPUBLISHED OPINION
DERECK ANTHONY NICHOLSON, II, )
)
Appellant. ) FILED:

APPELWICK, J. - Dereck Anthony Nicholson was convicted of one count of
assault of a child in the second degree and one count of imprisonment-
domestic violence. He appeals his conviction for second degree assault of
a child with a deadly weapon on the grounds that there was insufficient
evidence to prove the elements of common law assault, and that the jury was
improperly instructed on the elements of common law assault. We reverse
his conviction for second degree assault of a child with a deadly weapon
and remand for a new trial.
FACTS
The factual record is based on testimony by Officer Vittorio Mangione
and Officer Molly McBride, of the Bellevue Police Department, both of whom
responded to the 911 call at the Nicholson residence. Neither Joan
Nicholson (Joan), the mother of T.N., the 20-month-old victim in this
assault case, nor Dereck Nicholson (Nicholson), testified at trial.
Shortly after Joan and Nicholson began arguing on October 3, 2001, their 20-
month-old son, T.N., began crying. The couple's argument escalated after
Nicholson screamed, 'Shut up, you fucking baby.' Joan told Nicholson not
to speak to the baby that way. Nicholson then blocked Joan's repeated
attempts to leave the house. When Joan put T.N. down to call 911,
Nicholson grabbed T.N., got a knife from the kitchen and walked with the
child to the family room. While Joan was on the phone calling 911,
Nicholson said to her, 'Look what I have,' at which point she witnessed
Nicholson holding T.N. under the armpits and placing the knife blade close
to T.N.'s bare stomach.
It is unclear how many times Joan dialed 911, but it is clear that the
dispatcher recorded multiple phone calls. On the 911 tape, a female voice
identified as Joan's can be heard crying and yelling, 'Put the knife down,'
and 'Give me back my baby.' T.N. is not heard crying on the 911 tape until
after Nicholson put him down and began talking to the 911 dispatcher.
The 911 dispatcher sent police officers to the Nicholson residence.
As Officer Mangione approached the Nicholson residence, while still in his
car he heard a female screaming from inside the Nicholson house, 'Put my
son down, he's got a knife.' Very shortly after parking his car, Officer
Mangione observed Joan running out of the house towards him. She was
hysterically yelling and crying, stating that her husband had their son in
his arms and was holding a knife to his belly. Officer Mangione described
Joan's demeanor as hysterical. He then walked into the house, where he saw
Nicholson sitting 'calm{ly}' on the couch, without a knife, holding T.N.
T.N. was 'crying and screaming.' Officer Mangione described him as 'very,
very upset.' The knife blade was later found in the kitchen sink and
preserved as evidence. Officer Mangione testified that the knife blade was
about 7- or 8-inches long.
Officer McBride, who had also responded to the call, described Joan as
'hysterical' and crying so hard that it was difficult to understand what
she was trying to say. She testified that Joan was distraught and it was
therefore difficult to get information from her for the police report.
Nicholson was charged with one count of assault of a child in the
second degree and one count of imprisonment-domestic violence. T.N. was
the only victim listed in the charging papers.
At trial, the defense counsel made a half-time motion to dismiss the
second degree assault of a child charge on the grounds that there was
insufficient evidence for a reasonable juror to find Nicholson guilty of
the crime. His objection rested in part on the theory apparent in the
prosecutor's closing argument that assault could be found if Joan, a third
party who was not listed as the victim in the charging papers, was placed
in fear and apprehension, in lieu of T.N. being placed in fear and
apprehension. The court denied the defense counsel's motion to dismiss and
agreed with the prosecutor that the fear and apprehension element of common
law assault was met if Joan, as T.N.'s mother, suffered fear and
apprehension. In his closing argument, the prosecutor argued that
Nicholson's conduct had 'creat{ed} {in her}, Joan Nicholson, th{at}
reasonable apprehension and . . . fear of bodily injury.'
The trial court instructed the jury on all three definitions of assault
used in the state of Washington. The jury instructions did not include an
instruction stating that for the fear and apprehension element of common
law assault to be met, they would need to find that T.N., not Joan, was
fearful and apprehensive of bodily injury. The jury returned a verdict
form finding Nicholson guilty of one count of assault of a child in the
second degree with a deadly weapon enhancement and one count of
imprisonment-domestic violence. He appeals.
ANALYSIS
I. Standard of Review
''The test for determining the 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. A
claim of sufficiency admits the truth of the State's evidence and all
inferences that reasonably can be drawn therefrom.'' State v. Romero, 113
Wn. App. 779, 797, 54 P.3d 1255 (2002) (quoting State v. Salinas, 119 Wn.2d
192, 201, 829 P.2d 1068 (1992)).
Questions of law are reviewed de novo. Rivett v. City of Tacoma, 123 Wn.2d
573, 578, 870 P.2d 299 (1994).
II. Conviction for Second Degree Assault of a Child

Nicholson asserts that his conviction for second degree assault of a child
must be reversed because the prosecutor's closing argument and instructions
to the jury led the jury to believe that the apprehension and fear element
of common law assault was met if they found that Nicholson had caused the
victim's mother, Joan, fear and apprehension.
The due process clause of the United States and Washington State
Constitutions require proof beyond a reasonable doubt ''of every fact
necessary to constitute the crime with which he is charged.'' State v.
Byrd, 72 Wn. App. 774, 782, 868 P.2d 158 (1994) (quoting In re Winship, 397
U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)).
In Washington, an individual commits second degree assault when 'he or
she, under circumstances not amounting to assault in the first degree . . .
{a}ssaults another with a deadly weapon.' RCW 9A.36.021. A person commits
second degree assault of a child when he or she is over 18 years of age and
commits the crime against a child under the age of 13 as defined in RCW
9A.36.021. RCW 9A.36.130. Assault is not defined by statute. Three
definitions of assault are used by Washington courts: '(1) at attempt, with
unlawful force, to inflict bodily injury upon another {attempted battery};
(2) an unlawful touching with criminal intent {battery}; and (3) putting
another in apprehension of harm whether or not the actor actually intends
to inflict or is incapable of inflicting that harm {common law assault}.'
State v. Hupe, 50 Wn. App. 277, 282, 748 P.2d 263 (1988). These
definitions are alternative means of committing the crime of assault.
'In an alternative means case, 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
alternate means.'

Bland, 71 Wn. App. at 353 (quoting State v. Kitchen, 110 Wn.2d 403, 410,
756 P.2d 105 (1988)).
If one of the alternate means upon which a charge is based fails and there
is only a general verdict, the verdict cannot stand unless the reviewing
court can determine that the verdict was founded upon one of the methods
with regard to which substantial evidence was introduced.

Bland, 71 Wn. App. at 354 (citing State v. Thorpe, 51 Wn. App. 582, 586,
754 P.2d 1050 (1988)).
A. Fear and Apprehension Element of Common Law Assault
We first determine whether any of the three alternate means of assault was
unsupported by substantial evidence. Nicholson asserts that the State
failed to prove the fear and apprehension element of common law assault
because it argued that element was met if Joan, the victim's mother, rather
than T.N., the victim himself, was placed in fear and apprehension.
T.N. was the only victim listed in Nicholson's charging papers. At trial,
the State argued that the elements of common law assault, the third means
of assault, were met if the jury found that Joan, as T.N.'s mother, was
placed in fear and apprehension in lieu of T.N. being placed in fear and
apprehension. The defense counsel objected and requested that the charge
be dismissed because the State could not prove that T.N., the victim, was
placed in fear and apprehension. The trial court denied the defense
counsel's motion to dismiss the second degree assault charge. It also
denied defense counsel's exception to the jury instruction, stating:
You raise a very interesting issue as to whether or not the third
{definition} would apply, in that normally the person who is referred to as
having fear or apprehension created would be the person who allegedly is
being targeted with the deadly weapon. But in a situation in which we're
dealing with a child, I do not find, even if it is applied in such a way as
to allow the finder of fact to consider the feelings of the parent, that is
unnecessarily vague, vague or violative of due process or otherwise
improper.

If we had a situation in which an unrelated third party, not a parent, were
the other, then I think there would be a very serious issue potentially
raised. But in this situation, where we're dealing with a child who is
probably not fully competent, under these circumstances it is an
appropriate instruction.

(Emphasis added). The defense counsel again objected and requested
clarification from the court as to how T.N.'s mother could be considered
the subject of the intended apprehension. The court responded:
We are talking about what constitutes reasonable apprehension of fear, and
if it is reasonable apprehension and fear in the mother, whether she's
called the victim or the baby is called the victim I think is immaterial,
because the definition of the alleged crime and the to convict instruction
do not necessitate that the fear, if any that is created, be within the
person who is the potential direct victim of the assault.

(Emphasis added).
Discussing the common law assault definition during closing, the
prosecutor stated:
Now, in this case the act was the defendant's action of holding the knife
to {T.N.} with the intent to create in Joan Nicholson the apprehension and
fear of bodily injury and which created in her, in Joan Nicholson, that
reasonable apprehension and imminent fear of bodily injury. . . .

All of that . . . goes to show . . . that even though the actor did not
actually intend to inflict the bodily injury, maybe he didn't, maybe he was
just doing it to say to Joan, 'I am getting back at you on this one. Look
what I've got, I've got {T.N.} and I've got a knife held to his belly.'

(Emphasis added).
In response, the defense counsel stated:
{T}he victim of this case is {T.N.}. There's no evidence that {T.N.} had
any apprehension and fear of bodily injury, there's no evidence that, as a
20-month-old child he'd even have the capacity to understand that he was in
- the possibility of bodily injury. But the {S}tate's suggesting that, oh,
no, we're not talking about {T.N.} in this incident, we're talking about
the third party, in this case, {Joan} Nicholson. {Joan} Nicholson is not
listed among the people who are the object of the assault.

In rebuttal, the State argued:
So I would ask that you reject counsel's argument with respect to the fact
that {T.N.} could not be afraid, and what you do have is you have evidence
of that fear through Joan Nicholson, through his mom. She's the one that
is showing you what's happening that day, what's happening to her son, how
fearful she is of what the defendant is capable of.

(Emphasis added).
In essence, the trial court supported the State's argument that the
fear and apprehension element could be transferred, that is, it was
satisfied if Nicholson placed Joan in fear and apprehension because she was
T.N.'s mother. The fact that Joan is the victim's mother is immaterial to
whether her fear and apprehension can be imputed to T.N. In Bland, we held
that fear and apprehension occurring in a third party rather than the
victim are insufficient to support a finding that the fear and apprehension
element of common law assault has been met. Bland, 71 Wn. App. at 356.
The trial court thus erred in permitting the State to argue that the fear
and apprehension element of common law assault was met if Joan, the
victim's mother, rather than T.N., the victim, was placed in fear and
apprehension of bodily harm.
The jury was properly provided with standard jury instructions
for second degree assault.1 The jury verdict stated: 'We, the jury, find
the defendant . . . guilty . . . of the crime of Assault of a Child in the
Second Degree - Domestic Violence as charged in Count I.' The jury
instructions permitted the jury to find Nicholson guilty if any of the
three alternate means of assault was satisfied. It is unclear from the
verdict whether the jury relied upon evidence that Joan's fear and
apprehension could be transferred to T.N. to reach its verdict. It would
have been error to do so, as a matter of law, and T.N.'s fear and
apprehension would not be established by substantial evidence.
If one or more means of the alternative means by which a crime charged can
be established is not supported by substantial evidence, the verdict will
stand only if the court can determine that the verdict was based on only
one of the alternative means, and substantial evidence supported that
means. State v.
Rivas, 97 Wn. App. 349, 351-52, 984 P.2d 432 (1999); Bland, 71 Wn. App. at
358. The State argues substantial evidence supports each alternate means
of assault. It also argues that there was substantial evidence that T.N.
himself was placed in fear and apprehension. But, the jury verdict simply
does not allow us to ascertain that the jury relied upon that evidence of
the means of committing assault in reaching its conclusion that Nicholson
was guilty of second degree assault of a child. We are therefore unable to
'determine that the verdict was founded upon one of the methods with regard
to which substantial evidence was introduced.' Bland, 71 Wn. App. at 354.
We reverse Nicholson's conviction of second degree assault of a child and
remand for a new trial.

WE CONCUR:

1 Jury Instruction 8, stated:
An assault is an intentional touching or striking or cutting of
another person that is harmful or offensive regardless of whether any
physical injury is done to the person. A touching or striking or cutting
is offensive if the touching or striking or cutting 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.
An assault is also an act done with the intent to create in another
apprehension and fear of bodily injury, and which in fact creates in
another a reasonable apprehension and imminent fear of bodily injury even
though the actor did not actually intend to inflict bodily injury.

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