                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        February 19, 2020


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                            No. 51998-4-II

                        Respondent,

          v.

    DANIKA MARIE LIGHTLE,                                     UNPUBLISHED OPINION

                        Appellant.



         SUTTON, J. — Danika M. Lightle appeals her conviction for third degree assault of a law

enforcement officer, arguing that the State did not present sufficient evidence because it did not

prove beyond a reasonable doubt that she intended to inflict bodily injury. She also argues that

the trial court improperly imposed two legal financial obligations (LFO), a $200 criminal filing

fee and a $50 court-appointed counsel fee, when she claims she was indigent under the applicable

2018 amendments to the LFO statutes. The State argues that it presented sufficient evidence for a

rational trier of fact to conclude beyond a reasonable doubt that Lightle was guilty of third degree

assault and that the record is insufficient to determine whether she is indigent and thus, a remand

is appropriate. We affirm Lightle’s conviction, but remand to the sentencing court to determine

whether Lightle is indigent under RCW 10.101.010(3)(a)-(c) in light of the 2018 legislative

amendments to the LFO statutes and consistent with State v. Ramirez.1



1
    191 Wn.2d 732, 426 P.3d 714 (2018).
No. 51998-4-II


                                              FACTS

       On March 24, 2018, Sergeant David Clary and Officer Steven Summers responded to a

dispute between neighbors in an apartment complex. There was a possible criminal trespass

complaint between the two neighbors. One neighbor had alleged that an intoxicated adult in one

apartment had entered an adjacent apartment without permission and scolded children who were

present without adult supervision.

       Lightle was one of the adults involved and was willing to speak with the officers. Sergeant

Clary spoke to Lightle for a period of time. While Clary was speaking with Lightle, another

woman was arrested by other officers who had arrived at the scene.

       When the other woman was arrested, Lightle and the other bystanders became upset.

Lightle demanded that the officers take her to jail. A friend of Lightle’s attempted to get between

Lightle and the officers. Lightle pushed her friend.

       Officer Summers separated Lightle and her friend and informed Lightle that she was not

going to jail. Summers told Lightle that they, the police, were leaving and that Lightle needed to

return to her apartment.

       Lightle insisted that she did not want her friend to go to jail alone. Lightle walked over to

Sergeant Clary’s patrol car, opened the rear door, and attempted to climb inside the vehicle.

Officer Summers grabbed Lightle’s arm, removed her from the patrol car, and informed her that

she was not going to jail. Lightle turned toward Summers and shoved him in the chest with enough

force to make his body turn. Lightle was then arrested for assaulting Summers and taken to jail.

       The State charged Lightle with one count of third degree assault. Lightle waived her right

to a jury trial. At a bench trial, Lightle testified that she had merely touched Officer Summers and



                                                 2
No. 51998-4-II


had not intended to hurt him. She explained that she was told if she touched Officer Summers,

then she would go to jail which was her objective. Officer Summers denied having such a

conversation with Lightle. Summers testified that Lightle stepped toward him, stabled her feet,

and shoved her right arm in his chest with enough force to turn his body. Sergeant Clary testified

that Lightle turned toward Summers and pushed him backward with enough force to make his

body twist.

       The trial court determined that the State had proved the elements of third degree assault

beyond a reasonable doubt.

       The trial court found that Lightle, “stepped towards Summers and intentionally shoved

Summers in the upper left chest. The shove caused his upper body to turn.” Clerk’s Papers (CP)

at 6. The trial court concluded that Lightle, “intentionally assaulted Officer Summers.” CP at 6.

       Although the court found Lightle was indigent at trial, represented by appointed counsel,

and indigent for purposes of appeal, the court determined that she had the ability to pay LFOs.

The court ordered Lightle to pay a $200 criminal filing fee and a $50 court-appointed counsel fee.2

Because the trial court applied the first time offender waiver under RCW 9.94A.650, it sentenced

Lightle to five days in jail. Lightle appeals.

                                            ANALYSIS

                                 I. SUFFICIENCY OF THE EVIDENCE

       Lightle argues that because she did not intend to cause bodily harm when she shoved

Officer Summers, the State presented insufficient evident to convict her. The State argues that her



2
 The court also imposed two mandatory LFOs: a $500 victim assessment fee and a $100 DNA
collection fee. These LFOs are not at issue on appeal.


                                                 3
No. 51998-4-II


argument ignores the broader common law definition of assault, an intentional touching or striking

that is harmful or offensive, regardless of whether she intended to injure Officer Summers. We

hold that the State presented sufficient evidence for a rational trier of fact to find beyond a

reasonable doubt that Lightle is guilty of third degree assault as charged.

       Due process requires the State to prove every element of the charged crimes beyond a

reasonable doubt. State v. Kalebaugh, 183 Wn.2d 578, 584, 355 P.3d 253 (2015). We review

sufficiency of evidence claims for whether, when viewing the evidence in the light most favorable

to the State, any rational trier of fact could have found the essential elements of the charged crime

beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). In a

challenge to the sufficiency of the evidence, the defendant admits the truth of the State’s evidence

and all reasonable inferences that can be drawn from it. Homan, 181 Wn.2d at 106. We also

“defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004),

abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 148

L. Ed. 2d 177 (2004).

       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.” RCW 9A.36.031(1)(g).

Thus, the State was required to prove that Lightle committed an assault on Officer Summers. The

criminal code does not define assault. State v. Stevens, 158 Wn.2d 304, 310-11, 143 P.3d 817

(2006). Therefore, we apply the common law definition. Stevens, 158 Wn.2d at 310-11. Our

Supreme Court has cited 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:

CRIMINAL 35.50, at 547 (3d ed. 2008) as the common law definition of assault:



                                                 4
No. 51998-4-II


               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.

State v. Villanueva-Gonzalez, 180 Wn.2d 975, 982-83, 329 P.3d 78 (2014) (citing State v. Smith,

159 Wn.2d 778, 781-82, 154 P.3d 873 (2007)). Thus, the State was required to prove Lightle acted

intentionally. “A person acts with intent or intentionally when he or she acts with the objective or

purpose to accomplish a result which constitutes a crime.” RCW 9A.08.010(1)(a).

       Here, Lightle failed to challenge any of the findings of fact and thus, they are verities on

appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). At trial, Officer Summers

testified that Lightle stepped toward him, stabled her feet, and shoved her right arm in his chest

with enough force to turn his body. Sergeant Clary testified that Lightle turned toward Officer

Summers and pushed him backward with enough force to make his body twist. Lightle testified

that she merely touched him. Lightle explained that she was told if she touched Officer Summers,

then she would go to jail which was her objective. Officer Summers denied having such a

conversation with Lightle. From this evidence, a rational trier of fact could find that the State

proved beyond a reasonable doubt that Lightle assaulted Officer Summers.

       Viewing the evidence in the light most favorable to the State, we hold that the State

presented sufficient evidence that Lightle intended to assault Officer Summers.

                                             II. LFOS

       Lightle argues that the trial court improperly imposed certain LFOs—a $200 criminal filing

fee and a $50 court-appointed counsel fee—even though (1) she was indigent at trial, (2) she was

represented by appointed counsel at sentencing, and (3) she remained indigent for purposes of




                                                 5
No. 51998-4-II


appeal. The State responds that there is insufficient evidence in the record to determine whether

Lightle is indigent under RCW 10.101.010(3)(a)-(c) and thus, remand is appropriate. We agree

that a remand is appropriate for the sentencing court to reconsider the imposition of these LFOs in

light of the 2018 amendments to the LFO statutes and consistent with Ramirez.

       The legislature amended former RCW 36.18.020(2)(h) (2017) effective June 7, 2018, and

thus, sentencing courts are prohibited from imposing a criminal filing fee on defendants who are

indigent at the time of sentencing. LAWS OF 2018, ch. 269 § 17; State v. Ramirez, 191 Wn.2d 732,

747, 426 P.3d 714 (2018). The legislature also amended former RCW 10.01.160(3) (2015)

effective June 7, 2018 “to categorically prohibit the imposition of any discretionary costs on

indigent defendants” under certain circumstances. Ramirez, 191 Wn.2d at 739 (citing LAWS OF

2018, ch. 269 § 6(3)). A court-appointed counsel fee is a discretionary cost. State v. Glover, 4

Wn. App. 2d 690, 692, 423 P.3d 290 (2018). In Ramirez, our Supreme Court held that the LFO

amendments apply prospectively and are applicable to cases pending on direct review. Ramirez,

191 Wn.2d at 749.

       The State contends that while Lightle may be indigent for purposes of the appointment of

counsel at trial and for appeal, she was not indigent for purposes of paying the criminal filing fee

and the court-appointed counsel fee. The State relies on RCW 10.01.160(3), which states, “The

court shall not order a defendant to pay costs if the defendant at the time of sentencing is indigent

as defined in RCW 10.101.010(3)(a) through (c).” (Emphasis added). RCW 10.101.010(3) states

that a person is “indigent” if he or she (a) is receiving certain types of public assistance, (b) is

involuntarily committed to a public mental health facility, or (c) has an annual income of 125




                                                 6
No. 51998-4-II


percent or less of the current federally established poverty level. The record is unclear as to

whether Lightle is indigent under the current LFO statutes.

        The trial court did not have the benefit of our legislature’s 2018 statutory amendments to

clarify whether Lightle is indigent. Therefore, we remand to the sentencing court to determine

whether Lightle is indigent under RCW 10.101.010(3)(a)-(c) for purposes of imposing a $200

criminal filing fee and a $50 court-appointed counsel fee under the 2018 legislative amendments

and consistent with Ramirez.

                                         CONCLUSION

        We affirm Lightle’s conviction, but remand to the sentencing court to determine whether

Lightle is indigent under RCW 10.01.010(3)(a)-(c) in light of the 2018 legislative amendments

and consistent with Ramirez.

        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.



                                                    SUTTON, J.
 We concur:



 MAXA, C.J.




 MELNICK, J.




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