                                                                                                     FILED
                                                                                             r OUR TI'. OF APPEALS
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                                                                                           2013 Iz0V 13 APB I1:
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                                                                                                     EFU         Y




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

STATE OF WASHINGTON,                                      I                    No. 43368 -1 - II


                                   Respondent,


        V.



K.M.,                                                     I            UNPUBLISHED OPINION




        JOHANSON, J. —        KM    appeals     his juvenile   adjudication   for   custodial assault.     He argues


that ( 1) admission of improper opinion testimony of guilt invaded the fact finder' s province and

2) the heightened common law self -
                                  defense standard for custodial assault violates the separation

of powers     doctrine.     Because ( 1)   this was a bench trial and we presume the court does not

consider     inadmissible    evidence, (   2)   any admission of the opinion of guilt testimony was

harmless, and ( 3) any potential error in applying the heightened self -
                                                                       defense standard was also

harmless, we affirm.


                                                      FACTS


                                                  I. THE ASSAULT


        On February 26, 2012, Juvenile Detention Officer Bradley Sean Kilmer escorted 14 -year-

old   KM from the Mason        County   Juvenile Detention       Facility   to the hospital to   evaluate a      broken
No. 43368 -1 - II



nose.'     On their way out of the detention center, KM yelled back when a group of juveniles in the

parking lot yelled at him; Officer Kilmer told KM that he could not speak to people while being

transported.      KM had been advised of this restriction before leaving the detention facility.

Despite Officer Kilmer' s admonition, KM spoke to another juvenile while at the hospital.


           When they reentered the detention center and were standing in a small entry area between

two    secured   doors, Officer Kilmer          advised   KM that " he   was   dropped to   a `   level   one "'   2 because

he had failed to follow the        rules   by   speaking to   people outside    the   facility. Clerk' s Papers ( CP)

at   19.   At this time, KM, who was wearing waist chains and leg irons, was standing in front of

and    to the right of   Officer Kilmer.        KM turned, swore at Officer Kilmer, doubled up both of his

 KM' s)      fists, aggressively "   got    in Officer Kilmer' s face,"        angrily " slammed his chest into


Officer Kilmer," and pushed the officer into the wall. CP at 19; Verbatim Report of Proceedings.


 VRP) at 5, 8, 22, 24.


            Officer Kilmer attempted to restrain KM by grabbing KM' s hair, but he lost his grip and

his arm moved down to KM' s neck/ shoulder area. As KM struggled, Officer Kilmer managed to

push KM into the wall, but Officer Kilmer' s left hand became entangled in KM' s restraints.

Officer Mike Arnold came to Officer Kilmer' s assistance, restrained KM and released Officer

Kilmer' s     entangled   hand.    When the officers returned KM to his cell, KM told Officer Arnold,


      T] hat fat fuck dropped     me, "'   referring to Officer Kilmer'    s   dropping   KM' s security level. CP




     Most of the facts are drawn from the juvenile court' s unchallenged findings of fact, which are
verities on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P. 2d 313 ( 1994).

2
     The   facility had four   security levels.     At level one, the detainee must spend 23 hours a day in
his cell.




                                                              2
No. 43368 -1 - II



at   20.   KM   also made other         threatening          comments         directed to Officer Kilmer.          Officer Kilmer


suffered a sprained wrist and torn ligaments.


                                          II. JUVENILE COURT BENCH TRIAL


           The State    charged     KM   with custodial assault               occurring in   a   juvenile   facility.3 The case

proceeded to a bench trial in a juvenile court.


           During trial, the State asked Officer Kilmer whether KM was " in actual imminent danger

of serious     injury   at   any time    prior       to the   scuffle you       described ?" VRP        at   10.   Officer Kilmer


responded      that KM       was not.     KM did not object to the State' s question or to Officer Kilmer' s


response.



           Officer Christina Torre            also   testified   for the State.      She had observed a large portion of


the physical alteration on the monitors in the control room as she was opening the doors to admit

KM      and   Officer Kilmer into the           facility. But she had turned away and was not looking at the

monitor until after          KM began shouting              obscenities at     Officer Kilmer. When she looked back to


the monitor, she saw Officer Kilmer pushing KM against the wall and then saw KM " push off

the   wall and start    pulling away from Officer Kilmer." VRP                        at   33.   She also saw KM and Officer


Kilmer struggle and observed that at one point Officer Kilmer' s arms were around KM' s neck, in

the "   head   and neck area."         VRP      at    33.     KM managed to break Officer Kilmer' s grip and then

 proceeded to push his body into Officer Kilmer and get close to his face and proceed to yell"

more obscenities at          the   officer.    VRP      at   33 -34.       She observed Officer Kilmer " proceed to try to




3 RCW 9A.36. 100( 1)( a).




                                                                       3
No. 43368 -1 - II




gain control of [ KM]          by taking       control of    his head       and neck area."           VRP    at   34.   At this point,


Officer Arnold arrived, and the two officers were able to restrain KM.


          Officer Arnold also testified that he became aware of the altercation when he heard KM


start swearing at Officer Kilmer. When Officer Arnold arrived, he saw Officer Kilmer struggling

with   KM; Officer Kilmer'          s   left    shoulder was         against      the   wall    and   his left    arm   was " around




 KM' s] upper body, neck area, and [ KM] was struggling back and forth and got right up in

 Officer Kilmer' s] face"         and swore at          Officer Kilmer.            VRP     at   54.   When he went to Officer


Kilmer' s assistance, Officer Arnold noticed that Officer Kilmer' s hand was stuck in KM' s

restraints.    Officer Arnold helped release Officer Kilmer' s hand and separated Officer Kilmer

and    KM.    During    this   testimony,      the State     asked   Officer Arnold, " From            where you were standing

during this incident, was [ KM] in imminent danger of serious injury prior to the confrontation

between him       and    Mr. Kilmer ?" VRP              at   56.    The juvenile court overruled KM' s objection on


relevancy     grounds.     Officer Arnold        responded, "        I    would   say   no."    VRP at 56.


          KM testified in his defense.             Although he admitted that he turned his head and swore at


Officer Kilmer when the officer told him ( KM) that he was dropping his security status, KM

denied touching Officer Kilmer first. Instead, KM asserted that Officer Kilmer had initiated the


physical contact by placing his arm across KM' s face, including the bridge of his broken nose,

and that Officer Kilmer' s arm slipped down to his neck area when KM lifted his head to avoid

contact    with   his   nose.     KM stated ' that Officer Kilmer' s hold was choking him and that he

repeatedly told the officer to stop choking him. KM further testified that when Officer Kilmer' s

arm went across         the bridge of    his    nose,   he felt     a "   stinging   feeling    in [ his]   nose,"   and he rated the


pain as a six on a scale of        one to ten. VRP            at   83. KM stated that before this, his pain level was a




                                                                     M
No. 43368 -1 - II



three.    VRP         at   84.   And he asserted that the only time he intentionally touched Officer Kilmer

was "    in   self[- ] defense, because [ the officer] contacted [ him] first" and touched him in " a hurtful

manner."        VRP at 85.


              The juvenile court found that the evidence established an assault and concluded that


    s] elf-defense does not apply because the respondent initiated contact and because the

respondent took an aggressive stance against a Detention Officer in a juvenile detention facility[;

t] he   respondent was not               in imminent danger             under   the law."    CP   at   20 (   emphasis added).   KM


appeals.



                                                                ANALYSIS


                                                   I. OPINION OF GUILT TESTIMONY


              KM first argues that Officers Kilmer and Arnold' s4 testimonies about whether KM was in


actual imminent danger of serious injury was improper opinion of guilt testimony that invaded

the fact finder'           s province and         denied him his Fourteenth Amendment due                      process rights.   Even


presuming, but not deciding that this is manifest constitutional error that we may address despite
                                     5                              6
KM' s failure to           object,       this   argument   fails.




4
    KM    incorrectly identifies                Officer Torre   as      the   officer   involved in this testimony.       See Br. of
Appellant        at   6.    But the record clearly shows that the relevant testimony was Officer Arnold' s
testimony, not Officer Torre' s. VRP at 56.

    See RAP 2. 5( a).


6 KM also argues that if we refuse to address this alleged error because it was not preserved for
review, his trial counsel provided ineffective assistance in failing to object to this testimony.
Because we address this issue directly, we do not address KM' s related ineffective assistance of
counsel claim.




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No. 43368 -1 - II



          Because this          was        a   bench trial, we presume            the juvenile court did not consider


inadmissible         evidence     in reaching its        verdict.     State v. Read, 147 Wn.2d 238, 244, 53 P. 3d 26


 2002) ( citing State         v.     Miles, 77 Wn.2d 593, 464 P. 2d 723 ( 1970)).                   KM could rebut this


presumption by showing that there is insufficient admissible evidence to support the verdict or

that "   the trial court relied on the inadmissible evidence to make essential findings that it

otherwise would not           have        made."    Read, 147 Wn.2d        at   245 -46. But KM does not argue that the


admissible evidence is insufficient to support the verdict; nor does the record show that is the


case.     And the juvenile court' s findings of fact or conclusions of law do not suggest that the


juvenile court        considered      these testimonies.            Furthermore, because the juvenile court concluded


that    self[- ]defense     did     not   apply because KM " initiated           contact,"   CP at 20, or, in other words,

                                                   7
that KM      was      the   first    aggressor,        the   testimony —which      related solely to KM' s self -
                                                                                                                defense

claim —    was irrelevant to the juvenile court' s guilty finding and any error is therefore harmless

beyond     a reasonable       doubt.8 See State              v.   We, 138 Wn.   App.   716, 158 P. 3d 1238 ( 2007),   review




denied, 163 Wn.2d 1008 ( 2008).                    Accordingly, this argument fails.




7
    See State   v.   Riley, 137      Wn.2d 904, 909, 976 P. 2d 624 ( 1999) ( "[ I] n general, the right of self[ -
    defense cannot be successfully invoked by an aggressor or one who provokes an altercation. ")

8 To find an error harmless beyond a reasonable doubt, from the record, an appellate court must
find that the alleged error did not contribute to the verdict. State v. Brown, 147 Wn.2d 330, 344,
58 P. 3d 889 ( 2002).




                                                                      2
No. 43368 -1 - II




                                 II. HEIGHTENED SELF- DEFENSE STANDARD


        KM next argues that the judicially- created, actual danger /serious injury self -
                                                                                        defense

standard that applies in cases involving custodial assault violates the separation of powers

doctrine because the legislatively- created statutory defense in RCW 9A. 16. 020 does not include

this heightened self defense standard. This argument also fails.
                     -


        As discussed above, the juvenile court did not rely exclusively on its conclusion that

KM'          defense claim
      s self -                  failed. Instead, the juvenile court also concluded that KM was the first


aggressor and,   therefore, not entitled to                defense.
                                               assert self -          Accordingly, even if the heightened

self defense standard for custodial assault is invalid because it violates the separation of powers
     -

doctrine,   any potential error was clearly harmless under the constitutional harmless error

standard. State v. Brown, 147 Wn.2d 330, 344, 58 P. 3d 889 ( 2002).


        We affirm.


        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.


                                                                                            0




                                                                            Johanson,




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