                                                                                              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. 51815-5-II

                               Respondent,

         v.

    STEPHEN NEIL TIMMONS,                                     UNPUBLISHED OPINION

                               Appellant.

        MELNICK, J. — Stephen Timmons used a garden hose to flood the upstairs bedroom of his

ex-girlfriend’s house. The police responded to the incident, and a piece of drywall fell off the

ceiling. It struck a police officer in the head, giving him a concussion. A jury convicted Stephen

Timmons of assault in the third degree, along with various other crimes.1

        Timmons argues that insufficient evidence supports his conviction because the object that

hit the police officer was not “a weapon or other instrument or thing likely to produce bodily harm”

within the assault in the third degree statute, RCW 9A.36.031(1)(d). Timmons also contends that

the trial court imposed unauthorized legal financial obligations (LFOs).

        We agree with Timmons, reverse his conviction for assault in the third degree, and remand

for resentencing.




1
 Because Timmons does not challenge his other convictions on appeal, many of the facts
underlying those matters are not discussed further.
51815-5-II


                                               FACTS

         Timmons and Rebecca Andrews had a dating relationship and lived together for

approximately 30 years. However, Timmons began using drugs, and Andrews obtained a no-

contact order that excluded him from the house that they shared.

         One day, Timmons put a garden hose in the upstairs window of the house and turned it on.

He then called Andrews and told her that she had “better go rescue [her] cats because [he had] just

ruined the house.” 2 Report of Proceedings (RP) at 165.

         The police escorted Andrews to the house. They saw the garden hose in the second floor

window. Because water ran through the ceiling, drywall had fallen from the ceiling on the first

floor.

         Officer Daniel McPherson entered the house on the first floor, and a piece of drywall fell

from the ceiling and hit him on the head. He suffered a concussion.

         The police later arrested Timmons, and the State charged him with various crimes,

including assault in the third degree based on the drywall hitting McPherson.

         At the conclusion of the State’s evidence at trial, Timmons moved to dismiss the assault

charge. The State opposed the motion and argued that the evidence showed that Timmons acted

with criminal negligence and caused McPherson’s injury by an instrument or thing likely to

produce bodily harm. The State clarified that the relevant instrument or thing was not the drywall

that fell and hit McPherson but rather the “flooded second story” of Andrews’s home. 4 RP at

440. The court denied Timmons’s motion.

         During the State’s closing argument, it argued how the relevant instrument or thing was

not the drywall itself, but the flooded house “where the structural integrity has been deteriorated.

It is a house that is likely to fall down.” 5 RP at 629.



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51815-5-II


        The jury convicted Timmons of nine crimes, including assault in the third degree. The

court sentenced Timmons to 96 months of confinement. It imposed a criminal filing fee, jury

demand fee, domestic violence fee, and deoxyribonucleic acid (DNA) database fee. The court also

found Timmons indigent. Timmons appeals.

                                              ANALYSIS

I.      SUFFICIENCY OF THE EVIDENCE

        Timmons argues that insufficient evidence supports his assault in the third degree

conviction because the object that hit McPherson was not a weapon or other instrument or thing

likely to produce bodily harm. Timmons contends that regardless of whether we characterize the

injury-causing object as a piece of drywall or the flooded second story of a home, neither falls

within the statute.

        The State argues that under the circumstances presented here, “a piece of drywall or ceiling

in a purposefully flooded home becomes ‘an object likely to produce harm . . . [and] fall[s] within

the . . . purview’ of the third degree assault statute.” Br. of Resp’t at 2 (second alteration in original)

(quoting State v. Marohl, 170 Wn.2d 691, 699, 246 P.3d 177 (2010)).

        Although the State is no longer arguing, as it did at trial, that the relevant object is the house

itself, we conclude that, under the circumstances presented here, neither the house, drywall, nor

water was a weapon or other instrument or thing likely to produce bodily harm as those terms are

used in the assault in the third degree statute.

        To determine whether sufficient evidence supports a conviction, we view the evidence in

the light most favorable to the State and determine whether any rational fact finder could have

found the elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576,

210 P.3d 1007 (2009). “In claiming insufficient evidence, the defendant necessarily admits the



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51815-5-II


truth of the State’s evidence and all reasonable inferences that can be drawn from it.” State v.

Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010).

       By convicting Timmons of assault in the third degree, the jury found that “[w]ith criminal

negligence, [he] cause[d] bodily harm to another person by means of a weapon or other instrument

or thing likely to produce bodily harm.” RCW 9A.36.031(1)(d).

       In Marohl, the defendant placed a man in a chokehold and both fell to the floor of a casino.

170 Wn.2d at 695-96. The impact of the floor caused the man to suffer bruises and scrapes, broke

his prosthetic arm, and possibly rendered him unconscious. Marohl, 170 Wn.2d at 696. A jury

convicted the defendant of assault in the third degree. Marohl, 170 Wn.2d at 697.

       In reversing the conviction, the court agreed with the defendant that insufficient evidence

supported the conviction because “the floor was not an ‘instrument or thing likely to produce

bodily harm.’” Marohl, 170 Wn.2d at 697 (quoting RCW 9A.36.031(1)(d)).

       The court first concluded that the casino floor was a “thing” and also possibly an

“instrument.” Marohl, 170 Wn.2d at 699. The court then focused its inquiry on whether the floor

was a thing “‘likely to produce bodily harm.’” Marohl, 170 Wn.2d at 699 (quoting RCW

9A.36.031(1)(d)).

       The court recognized that the statute’s language contained a specific word followed by

general words. Marohl, 170 Wn.2d at 699. Thus, it utilized the canon of statutory construction

whereby “‘the general words are construed to embrace a similar subject matter’ as the specific

words.” Marohl, 170 Wn.2d at 699-700 (quoting Burns v. City of Seattle, 161 Wn.2d 129, 149,

164 P.3d 475 (2007)). Therefore, the court reasoned:

       [A]n “instrument or thing likely to produce bodily harm” . . . must be similar to a
       weapon. The assault statute does not define “weapon,” but the dictionary definition
       is “an instrument of offensive or defensive combat: something to fight with.”
       Where the defendant causes the victim to impact the floor and makes no effort to


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51815-5-II


       proactively use the floor to injure the victim, the defendant has not used the floor
       like a weapon because he has not used it as an “instrument of . . . combat” or
       “something to fight with.”

Marohl, 170 Wn.2d at 700 (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2589

(2002)). The court concluded that, under the circumstances presented, “the casino floor was not

similar to a weapon.” Marohl, 170 Wn.2d at 703.

       Additionally, the court recognized that unlike some other states’ statutes, RCW

9A.36.031(1)(d) did “not include any instrument or thing capable of inflicting harm, but only those

likely to produce harm.” Marohl, 170 Wn.2d at 702. As a result, the court concluded that “[t]he

casino floor was not within the scope of RCW 9A.36.031(1)(d).” Marohl, 170 Wn.2d at 703.

       In State v. Shepard, 167 Wn. App. 887, 888-89, 275 P.3d 364 (2012), the defendant

violently threw his former girlfriend into various pieces of furniture. A jury convicted the

defendant of assault in the third degree, and he appealed. Shepard, 167 Wn. App. at 889.

       The majority relied on Marohl to conclude that the furniture was not a weapon or other

instrument or thing likely to produce bodily harm because the defendant “brutally pushed or threw

[the victim]. He did not pick up the [furniture] or any other object or instrumentality and strike

[the victim] with it or deliberately beat her against it.” Shepard, 167 Wn. App. at 890.

       The dissent argued that the majority misread Marohl. According to the dissent, under

Marohl, an object can fall within the statute if “the object itself [is] in the nature of a weapon, or .

. . [is] used as a weapon.” Shepard, 167 Wn. App. at 892 (Korsmo, C.J., dissenting). Therefore,

the dissent argued that the evidence was sufficient to support the conviction because under the

facts presented, a reasonable jury could find that the defendant used the furniture as

“instrumentalities to injure” the victim. Shepard, 167 Wn. App. at 892.




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51815-5-II


         Here, we conclude that, under the circumstances presented, neither the house, the drywall,

nor the water falls within the statute’s purview. Under Marohl, “an ‘instrument or thing likely to

produce bodily harm’ . . . must be similar to a weapon.” 170 Wn.2d at 700. Thus, it must be

sufficiently analogous to “‘an instrument of offensive or defensive combat: something to fight

with.’” Marohl, 170 Wn.2d at 700 (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

2589).

         In Marohl, the court suggested that a casino floor could fall within the statute if it was used

to smash someone’s head. And in Shepard, the dissent argued that furniture used to increase the

damage caused by throwing someone fell within the statute. In both of those situations, the use of

the instruments sufficiently related to combat. Here, however, there are no instruments or things

that were used in a manner sufficiently related to combat.

         We also point out that, while a flooded house, soaked drywall, or water in the second story

of a house could possibly cause bodily harm, they are not likely to produce bodily harm. Marohl,

170 Wn.2d at 702. Because they are not likely to produce bodily harm, we conclude that they do

not fall within the assault in the third degree statute. Therefore, insufficient evidence exists to

support Timmons’s conviction for assault in the third degree.

II.      LFOS

         Timmons argues, and the State agrees, that because of the 2018 amendments to the LFO

statutes, the criminal filing fee, jury demand fee, domestic violence fee, and DNA database fee

should be stricken.

         When the court resentences Timmons, it should reconsider the imposition of LFOs in light

of the 2018 amendments to the LFO provisions, Laws of 2018, ch. 269, and State v. Ramirez, 191

Wn.2d 732, 426 P.3d 714 (2018).



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51815-5-II


        We reverse Timmons’s conviction for assault in the third degree and remand for

resentencing.

        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.




                                                            Melnick, J.

We concur:




        Maxa, C.J.




        Sutton, J.




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