  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                               No. 72766-4-1                ^
                      Respondent,
                                               DIVISION ONE
              v.
                                                                             I
                                               UNPUBLISHED OPINION          r^
CHARLENE EVA PRATT,                                                         5:   —jji;
                      Appellant.               FILED: March 2, 2015         V? ^
                                                                            VD   -- ~:;

       Trickey, J. — A "to-convict" instruction for a third degree assault charge

that fails to state that the assault must be intentional is not erroneous when the

term "assault" itself includes the element of intent and the jury was given the

definition of "assault."

                                     FACTS

       In the early morning hours of May 29, 2013, Charlene Pratt was trying to
gain access to the American Medical Response (AMR) office in Kelso,
Washington, to get out of the rain. An AMR employee called its "Corn-Center"
and had police dispatched.1 Kelso police responded to the call. Because of
Pratt's combativeness and disheveled appearance, the police took her to the
hospital for an evaluation under the involuntary treatment act, chapter 71.05
RCW.

        At the hospital, Pratt continued to be combative, screaming and swearing
at the staff. When the staff attempted to remove her clothing, Pratt warned them
that someone was going to get hit. As Megan Kautz bent over her to help



 1 Report of Proceedings at 21-22.
No. 72766-4-1 / 2

remove her pants, Pratt cocked her right arm back and punched Kautz in the

mouth with a closed fist. Kautz lip was red and puffy and swelled up right away.

       Pratt was arrested and charged with third degree assault of a health care

provider. A jury found Pratt guilty as charged.

       Pratt appeals, contending the jury was improperly instructed on the third

degree assault charge because the "to-convict" instruction omitted the necessity
offinding intent, a necessary element ofthe charge. Pratt also contends that the
trial court erred in not giving a self-defense instruction, miscalculated her

offender score, and lacked authority to require her to pay her court appointed

attorney fees.

                                     ANALYSIS


"To-Convict" Instruction

       Pratt first challenges the third degree assault "to-convict" instruction,
claiming that it omitted an essential element of the charge by falling to require the
State to prove that she "intentionally" assaulted Kautz. Pratt did not object at trial
to the jury instruction she now challenges.

       Generally, a defendant cannot challenge a jury instruction on appeal if he
or she did not object to the instruction in the trial court. State v. Salas, 127
Wn.2d 173, 181, 897 P.2d 1246 (1995). However, a defendant can raise such
an error for the first time on appeal if the instruction involved a manifest error

affecting a constitutional right. Atrial court's failure to instruct the jury as to every
element of the crime charged violates due process. State v. Aumick, 126 Wn.2d
No. 72766-4-1 / 3

422, 429, 894 P.2d 1325 (1995). Thus, Pratt can raise the issue for the first time

on appeal.

       We review the adequacy of a challenged "to-convict" instruction de novo.

       State v. DeRvke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003). Generally,

the "to-convict" instruction must contain all the essential elements to the crime

charged. State v. Lorenz, 152 Wn.2d 22, 31, 93 P.3d 133 (2004); State v. Smith,
131 Wn.2d 258, 263, 930 P.2d 917 (1997).

       The elements of third degree assault are set forth in RCW 9A.36.031(1)(i):

       A person is guilty of assault in the third degree if he or she . . .
       [ajssaults a nurse, physician, or health care provider who was
       performing his or her nursing or health care duties at the time of the
       assault.

Instruction 7, the "to-convict" instruction, states:

       To convict the defendant of the crime of assault in the third degree,
       each of the following elements of the crime must be proved beyond
       a reasonable doubt:

             (1) That on or about May 29, 2013, the defendant assaulted
        Megan Kautz;
             (2) That Megan Kautz was a health care provider,
             (3) That at the time of the assault Megan Kautz was performing
             her health care duties; and
             (4) That any of these acts occurred in the State of
        Washington.[2]

The jury was further instructed on the definition of assault. Instruction 8 states:
        An assault is an intentional touching or striking of another person
        that is harmful or offensive regardless of whether any physical
        injury is done to the person Atouching or striking is offensive if the
        touching or striking would offend an ordinary person who is not
        unduly sensitive.[3]


 2 Clerk's Papers (CP) at 17.
 3CPat18.
No. 72766-4-1 / 4

       Pratt contends that the "to-convict" instruction omitted the element of

intent by failing to require the juryto find that Pratt "intentionally" assaulted Kautz.

But case law recognizes that the term "assault" itself "adequately conveys the

notion of intent" and, therefore, includes the element of intent. State v. Davis,

119 Wn.2d 657, 662-63, 835 P.2d 1039 (1992) (citing State v. Hopper, 118

Wn.2d 151, 158, 822 P.2d 775 (1992)). As the court explained in Hopper:

       The definition of "assault" is a willful act. This court has previously
       said that language alleging assault contemplates knowing,
       purposeful conduct.        The word "assault" is not commonly
       understood as referring to an unknowing or accidental act. . . .
       Commentators support the view that the term "assault" includes the
       element of intent."

 118 Wn.2d at 158-59 (citations and internal quotation marks omitted).

       Pratt's reliance on Smith for the proposition that the jury was misinformed

about all the elements in the "to-convict" instruction is not well taken. In Smith,

the "to-convict" instruction actually misstated the elements of conspiracy to

commit murder by stating the wrong crime as the underlying crime that the
conspirators agreed to carry out. Instead of stating the underlying crime as the
"crime of Murder in the First Degree," the instruction stated it as the "crime of
Conspiracy to Commit Murder in the First Degree." Smith, 131 Wn.2d at 262.
        Here, unlike the instruction in Smith, the "to-convict" instruction did not
purport to list the specific elements of assault and misstate them. Rather, it
simply required that the jury find that Pratt committed an act of third degree
assault.
No. 72766-4-1 / 5


Self-Defense

      On appeal, Pratt argues that the record contained ample evidence that

she defended herself to prevent an offense against her person, i.e., she did not

strike Kautz until Kautz touched her. Thus, she argues, the trial court erred in

failing to instruct the jury on self-defense. A defendant has autonomy over the

defense presented at trial. State v. Lynch, 178 Wn.2d 487, 492, 309 P.3d 482

(2013).

      At trial, Pratt's attorney argued that she did not have the requisite intent

because of her intoxication. If Pratt did not have the necessary intent to commit

an assault because of her intoxication, she would not have been able to form the

necessary intent to warrant the giving of a self-defense instruction.
          So long as the instructions inform the jury of the elements of the offense
and allow counsel to argue their theories of the case, a trial court is not required

to instruct a jury in a more detailed fashion absent a request to do so. State v.
Marhohl, 151 Wn. App. 468, 477, 213 P.3d 49 (2009), rev'd on other grounds by
170 Wn.2d 691, 246 P.3d 177 (2010). In fact it would arguably be error for the

court to further instruct the jury in such circumstances. A defendant's right to

present a full defense and to jury instructions on the defense theory of the case
run in tandem with the defendant's constitutional right to control that defense.

State v. Jones, 99 Wn.2d 735, 740-41, 664 P.2d 1216 (1983). Here, the defense

did not advance a self-defense theory, the court's instructions set forth the

elements of the crime, and the instructions allowed counsel to argue their

theories of the case. The court did not err in not giving a self-defense instruction.
No. 72766-4-1 / 6


Offender Score

       Pratt challenges her offender score on the grounds that the trial court

improperly counted her 2004 conviction because it had washed out. This court

reviews de novo a sentencing court's offender score calculation. State v. Tewee,

176 Wn. App. 964, 967, 309 P.3d 791 (2013), review denied, 179 Wn.2d 1016,

318 P.3d 280 (2014).

      Although generally issues not raised in the trial court may not be heard for
the first time on appeal, this does not apply to illegal sentences. State v. Moen,

129 Wn.2d 535, 543, 919 P.2d 69 (1996). "Illegal or erroneous sentences,

however, may be challenged for the first time on appeal." State v. Nitsch, 100
Wn. App. 512, 519, 997 P.2d 1000 (2000). "[A] defendant cannot agree to
punishment in excess of that which the Legislature has established." In re
Personal Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002).

Thus, a defendant generally cannot waive a challenge to a miscalculated
offender score. Goodwin, 146 Wn.2d at 874.

       A conviction may wash out of the offender score. RCW 9.94A.525(2).
Prior convictions for class C felonies are not included in an offender score if the

offender spent five consecutive years in the community without committing an
offense. RCW 9.94A.525(2)(c) provides:

       Except as provided in (e) of this subsection, class C prior felony
       convictions other than sex offenses shall not be included in the
       offender score if, since the last date of release from confinement
       (including full-time residential treatment) pursuant to a felony
       conviction, if any, or entry of judgment and sentence, the offender
       had spent five consecutive years in the community without
       committing any crime that subsequently results in a conviction.
No. 72766-4-1 / 7

       In re Personal Restraint of Call. 144 Wn.2d 315, 28 P.3d 709 (2001), is

instructive. There, the defendant's offender score was incorrectly calculated as

10 rather than 8, because two prior convictions should have washed out. Call,

144 Wn.2d at 334. The incorrect offender score calculation resulted in increasing

the standard range. CaJI, 144 Wn.2d at 334. The court held that remand for
resentencing was required, because the sentence was based on an erroneous

offender score. Call, 144 Wn.2d at 335. Both the defendant and the prosecutor

overlooked the fact that two of the defendant's prior convictions should have

washed out under former RCW 9.94A.360(2) (1999).

       Similarly, here, the 2004 convictions should have washed out and not
been included in Pratt's offender score. As in CaN, this was an obvious error.

Accordingly, we remand for resentencing for the trial court to determine the
correct offender score.

Cost of Attorney

       Pratt argues that the trial court lacked authority to order Pratt to pay the
cost of court-appointed counsel.       The initial imposition of court costs at
sentencing is predicated on the determination that the defendant either has or
will have the ability to pay. RCW 10.01.160(3). Here, the court issued a finding
of fact, albeit contained in boilerplate language, that such was the case. RCW
10.01.160 authorizes a court to require an indigent defendant to pay for the
 recoupment of fees for court-appointed counsel, the court did not abuse its
discretion. See State v. Smite. 152 Wn. App. 514, 519, 216 P.3d 1097 (2009).
No. 72766-4-1 / 8

      Moreover, a challenge to a court imposed legal financial obligation at

sentencing, cannot be appealed as matter of right because it is not a final

judgment and the order to pay is conditional. State v. Hathaway, 161 Wn. App.

634, 651, 251 P.3d 253 (2011) (citing Smite, 152 Wn. App. 523).

                                  CONCLUSION

       In conclusion, we affirm the conviction for third degree assault of a health

worker, but remand to the trial court for resentencing.




                                                   TX <A e»j ^

WE CONCUR:




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