                                                                                                     FILED
                                                                                                        ED
                                                                                             COURT OF APPEALS
                                                                                                 DIVISIOtl14

                                                                                             2013 MAR,8
                                                                                                      -    AM 11 : 54
      IN THE COURT OF APPEALS OF THE STATE OF                                         K0N
                                                                                      WASJFNWSH1N\G`
                                               DIVISION II                                   8Y
                                                                                                    QEPU Y
STATE OF WASHINGTON,                                                         No. 43511-
                                                                                 11-  0


                                      Respondent,

            V.




DOUGLAS L.BAUER,                                                        PUBLISHED OPINION




            PENOYAR, J. — The       State charged Douglas Bauer with third degree assault after his girl

friend's nine -year old son accidentally shot a classmate with Bauer's gun. The trial court denied
                    -

Bauer's Knapstad' motion and vagueness challenge. On discretionary review, he argues that (1)
the definition of cause"in the third
                  "                          degree assault   statute   requires      affirmative
                                                                                   an "                    2)
                                                                                                    act "; ( his

actions were not the proximate cause of the assault; ( )he can only be held liable under the
                                                     3
                          and (4)the assault statute is vague      as   applied    to him.   Because the State
complicity statute;

alleges Bauer performed an affirmative act, we reject his first claim. As to his second claim, we

conclude "cause" legally means proximate cause. Proximate cause, in turn, involves two

elements: actual cause, which requires a factual determination by the jury, and legal cause, a

legal issue we address by reviewing legal precedent. On this claim, we conclude.the State has

alleged sufficient facts for the jury to find both actual cause and the facts supporting legal cause,
thus the trial court       properly   denied Bauer's   Knapstad    motion.         Additionally, the complicity

statute does not bar liability here, and the third degree assault statute is not unconstitutionally

vague because all of the elements are defined in statutes or case law.




1
    State   v.   Knapstad, 107   Wn. d 346, 729 P. d 48 (
                                   2             2      1986).
43511 0 II
      - -



                                                       FACTS


        On February 22, 2012, nine -year old TC brought a .45 caliber handgun to school. Near
                                         -

the end of the day, TC reached into his backpack and accidentally pulled the trigger, injuring his

classmate, AK B.
              -

        The gun was registered to Bauer, TC's mother's boyfriend. TC does not live with his

mother, but he and his siblings would occasionally visit and stay the night. TC took the gun

while he was visiting his mother the weekend before the shooting. TC told the police that he

took the gun off the dresser in Bauer and his mother's downstairs bedroom while the rest of his

family was upstairs. TC and his siblings often sleep in that bedroom, and they explained that

they are allowed to access the downstairs portion of the house, including the bedroom, without
supervision.

        The children also stated that there are multiple guns throughout the house, including a

shotgun in the downstairs bedroom, a handgun on the downstairs dresser, a handgun on the
computer desk, a handgun under the couch, and.a handgun in the glove compartment of the car.
None of the guns are in areas forbidden to the children. Bauer and TC's mother both warned the

children to never touch the guns because they were loaded. The police searched the house after

the shooting and found a loaded handgun next to the computer, a loaded shotgun in the

downstairs bedroom, an unloaded handgun in Bauer's car's glove compartment, and ammunition

in a dresser drawer. Bauer told the police that he did not know TC had stolen the gun. He did
admit that he knew—
                  before TC left his house that weekendthat TC had taken money from the
                                                        —

glove compartment of Bauer's vehicle.

        TC's guardian stated that he does not allow guns in his home. TC told the police that he
had   never   held   or   loaded   a   gun before and that   no one   had   ever   taught him how to   use a   gun.
43511 0 II
      - -



       On March 20, 2012, the State charged Bauer with third degree assault and unlawful

possession   of   a   firearm.   Bauer filed   a   Knapstad   motion to dismiss both   charges. Under

Knapstad, the trial court may dismiss a criminal case before trial when it is clear from the facts

that the State cannot prove a necessary element of the crime. State v. Sanchez, 166 Wn. App.

304, 307, 271 P. d 264 ( 2012). Bauer also challenged the third degree assault statute as
               3


unconstitutionally vague. The trial court dismissed Bauer's unlawful possession charge, but it

denied his Knapstad motion and vagueness challenge with respect to the assault charge. Bauer

filed a petition for discretionary review. The trial is stayed pending our decision.
                                                   ANALYSIS


I.     KNAPSTAD MOTION


       Bauer argues that we should reverse the trial court's dismissal of his Knapstad motion

because there is no evidence that he assaulted the victim. Specifically, he argues that the assault

statute requires him to perform an affirmative act, there is no proximate cause, and he can only

be held criminally liable for another's acts under the complicity statute. We hold that the trial

court properly denied Bauer's Knapstad motion because "cause"the third. degree assault
statute means proximate cause and involves issues of foreseeability that are the province of the

jury. Additionally, the complicity statute does not bar Bauer's liability.

        To prevail on a Knapstad motion, the defendant must show that there are no material

facts in dispute and that the undisputed facts do not establish a prima facie case of guilt.

Knapstad, 107 Wn. d at 356. A trial court may dismiss a criminal charge under Knapstad if the
                2

State's pleadings and evidence fail to establish prima facie proof of all elements of the charged
crime. State v. Sullivan, 143 Wn. d 162, 171 n.2, 19 P. d 1012 (2001).The trial court shall
                                2             3       3

view all evidence and make all reasonable inferences in the light most favorable to the State.
                                                       3
11-
43511-
     0




CrR 8. (
    c)(
     3);
     3 State v. Jackson, 82 Wn. App. 594, 608, 918 P. d 945 (1996). may not weigh
                                                    2             It

conflicting statements, and it may not base its decision on the statement it finds most credible.

CrR 83( )(will uphold the trial court's dismissal of a charge on a Knapstad motion if no
    3).
      c We        -
rational fact finder could have found the elements of the charged crime beyond a reasonable

doubt. State v. O' eara, 143 Wn. App. 638, 641, 180 P. d 196 (2008).
                 M                                   3

         Bauer argues that he cannot be convicted of assault because his          alleged   actions —keeping


loaded firearms where children could easily take themwere not sufficiently a "cause" of the
                                                     —

shooting. To explain why we disagree, we must explain how causation is treated in ,
                                                                                  criminal
cases.




         We are all familiar with cause and causation in our daily lives. When a tree blows down

in a storm, we expect that wind was the cause. We also recognize that there may be more than

one cause of an event. Perhaps the tree blew down because of both the wind and the saturated

soil. The law refers to cause of this sort as "actual cause."See Hartley v. State, 103 Wn. d 768,
                                                                                         2

778, 698 P. d 77 (1985)referring to actual cause as "cause in fact ")
          2             (

         In society, we are also familiar with attributing moral blame for an event. In assessing

blame, we take into account many factors. How direct was the cause? Was the person aware of

the risk?Should the person have realized the consequences that resulted? Using a similar line of

reasoning, the law describes a cause for which a person may be held liable as "legal cause."

State v. McDonald, 90 Wn. App. 604, 616, 953 P. d 470 (1998). As in moral assessments of
                                              2

blame, legal cause analysis involves consideration of whether the consequences were apparent

and   of the    actor's   state   of . mind   in   proceeding   in   the   face   of these consequences.

                                                     whether the                                          The
Foreseeability" is    the   legal catchword for                      consequences    were     apparent.

concept of foreseeability is treated similarly in civil and criminal cases. But the state of mind
                                                      4
11-
43511-
     0



that must be shown to        assess   blame in criminal      cases   is   higher   than in civil   cases.   In a civil


negligence case, the claimant must show merely that the actor was not reasonably careful in view

of the apparent risk. Johnson v. Emp't Sec. Dep't, Wn. App. 311, 317, 824 P. d 505 (1992).
                                                 64                        2

But in a criminal negligence case, the State must show that the defendant's actions were at least a

gross deviation from what a normally careful person would have done. RCW 9A. 8.
                                                                         d).
                                                                         010(
                                                                            1)(
                                                                            0

Finally, as shorthand for situations where both actual and legal cause are present, the law uses

the concept of proximate cause."Hartley, 103 Wn. d at 777. We now apply this roadmap to
               "                               2

this case.


         We hold that "cause" as used in the third degree assault statute should be construed as

proximate      cause" because it has been        so    construed in similar criminal statutes.               Under a


proximate cause analysis, the State has alleged facts to support a jury's finding of both actual and

legal   cause.    Additionally, Bauer's arguments are unpersuasive because he performed an

affirmative act, his proposed definition of cause comes from distinguishable case law, and the

presence of supervening acts is a jury question. Therefore, we affirm the trial court's denial of

Bauer's Knapstad motion.

         A.       Statutory Interpretation

         The State    charged      Bauer with third    degree    assault.     The third degree assault statute

requires the State to prove that Bauer ','[ ith criminal negligence, cause[d]
                                        w]                                   bodily harm to

another person by means of a weapon."RCW 9A. 6.We must interpret the meaning
                                         d).
                                         031(
                                            1)(
                                            3

of cause"in this statute.
   "


         The   legislature   has   provided` uidance
                                           g           for   construing its criminal     statutes.   RCW


020.
9A. 4. The general purposes of the criminal code are "[ o forbid and prevent conduct that
  0                                                  t]

inflicts or threatens substantial harm to individual or public interests;" "[ safeguard conduct
                                                                         t] o
                                                         5
11-
43511-
     0




that is without culpability from condemnation as criminal;" "[ o give fair warning of the
                                                          and t]

nature of the conduct declared to constitute an offense."RCW 9A. 4. With these -(
                                                             a)
                                                             020(
                                                                1)(
                                                                0 c).

goals in mind, t] provisions of the criminal code] shall be construed according to the fair
               "[ he            [

import of their terms but when the language is susceptible of differing constructions it shall be

interpreted to further the general purposes stated in this title."
                                                                 RCW 9A. 4.
                                                                     020(
                                                                        2
                                                                        0 ).
        As noted, the third degree assault statute requires the State to prove that Bauer, w]
                                                                                           "[ ith

criminal   negligence, cause[d]bodily     harm to another person        by   means   of   a   weapon." RCW

9A. 6. Cause is not statutorily
d).
031(
   1)(
   3                                            defined.   When a statutory term is undefined, it is

given its ordinary meaning, which may be discerned from the dictionary. State v. Gonzalez, 168

Wn. d 256, 263, 226 P. d 131 ( 2010). Additionally, courts may look to the common law to
  2                  3

define terms not given a statutory definition. State v. Byrd, 125 Wn. d 707, 712, 887 P. d 396
                                                                    2                  2

1995);
     RCW 9A. 4. ( " provisions of the common law relating to the commission of
         060 The
           0

crime and the punishment thereof, insofar as not inconsistent with the Constitution and statutes

of this state, shall supplement all penal statutes of this state. ").

        In the following paragraphs, we apply these rules of statutory interpretation to RCW
d)
031(
9A. 6. the word "cause."We determine that "cause"means "proximate cause,"
   1)(
   3 and                                                                a

common legal concept. Proximate cause contains two elements, actual cause and legal cause.

We conclude that, under the meaning ascribed to these terms under Washington law, the State

has alleged sufficient facts to support a jury finding that Bauer's alleged conduct caused AK B'
                                                                                              -s
harm.


2
  We apply the rule of lenity to construe criminal statutes in the defendant's favor only when the
statute is actually ambiguous. State v. McGee, 122 Wn. d 783, 787, 864 P. d 912 (1993).
                                                          2                   2
Moreover, a] "[ criminal statute need not set forth with absolute certainty every act or omission
that] is prohibited if the general provisions of the statute convey an understandable meaning to
the average person."State v. Prather, 30 Wn. App. 666, 670, 638 P. d 95 (1981).
                                                                          2
                                                     6
11-
43511-
     0



        B.       Cause Means "
                             Proximate Cause"


        When criminal statutes require the State to prove a defendant caused a specific result,

Washington courts have construed this element to require a showing of proximate cause. For

example, the homicide by abuse statute requires proof that the defendant " ause[d] death"of
                                                                         c       the

the victim, and courts have stated that proximate cause is an element of the crime of homicide by

abuse. See State    v.   Berube,   150 Wn. d
                                         2     498, 510, 79 P. d 1144 (2003). The second degree
                                                             3


murder statute     also requires proof that the defendant "cause[d] death" of the victim, and
                                                                  the

courts have stated that this requires a showing of proximate cause. State v. Perez -Cervantes, 141

Wn. d 468, 475 80, 6 P. d 1160 (2000) discussing the
  2            -      3               (                       proximate   cause   requirement).   The


controlled substances homicide statute requires proof that the controlled substance "result[ed]in

the death of the user,"
                      and Division Three of this court has held that there is no evidence of

legislative intent to distinguish "
                                  causing death"from " esulting in death" and that both require a
                                                     r

showing of proximate cause. State v. Christman, 160 Wn. App. 741, 754, 249 P. d 680, review
                                                                            3

denied, 172 Wn. d 1002; 257 P. d 666 (2011). The first degree robbery statute requiresas
              2              3                                                        —

one   alternative—hat defendant "inflict[]
                 t                       bodily injury"during or in immediate flight from

the robbery, and Division One of this court has held that this too requires . showing of proximate
                                                                            a

cause. State v. Decker, 127 Wn. App. 427, 432, 111 P. d 286 (2005)stating that crimes that are
                                                    3              (

defined to require specific conduct causing a specified result require a showing of proximate

cause).

3
    RCW 9A. 2.
        055(
           1
           3 )
4
    RCW 9A. 2.
        050(
           1
           3 )
s
    RCW 69. 0.
        415(
           1
           5 )

6 RCW 9A. 6.
      a)(
      200(
         iii)
         1)(
         5
                                                    7
43 511 0 II
       - -




        As noted above, proximate cause consists of two elements: actual cause and legal cause.
McDonald, 90 Wn. App. at 612. Actual cause refers to the physical connection between an act

and an injury. Hartley, 103 Wn. d at 778. It requires the State to prove that but for the act of the
                              2

defendant, the harm would    not have occurred.       Christman, 160 Wn. App. at 753 ( quoting 1

WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6. , at 464 (2d ed.
                                             4                                      Legal cause
                                                                              2003)).

involves a determination of whether liability should attach as a matter of law."McDonald, 90

Wn.App. at 616 (quoting Hartley, 103 Wn. d at 779).
                                       2

        This definition of cause fits within the general purposes of the criminal code as outlined

by the legislature: to protect society from harm while shielding the innocent from culpability. As

we discuss below, the State has presented sufficient facts for a jury to find that Bauer's alleged

conduct, leaving multiple loaded guns easily accessible to children, is conduct that "nflict[ d] . .
                                                                                     i      e

    substantial harm" in the form of severe injuries to a child. RCW 9A. 4.Further,
                                                                     a).
                                                                     020(
                                                                        1)(
                                                                        0

courts consistently apply proximate cause analysis to criminal statutes that require the State to

prove that the defendant caused a certain result. Since we assume that these cases are available

to the public, there was "fair warning" that this conduct might "constitute an offense." RCW
c).
020(
9A. 4.
   1)(
   0

         C.     Proximate Cause: Actual Cause and Legal Cause

         Actual cause requires proof that but for the defendant's acts, the injury would not have

occurred. Hartley, 103 Wn. d at 778. Generally, actual cause is a jury question, except where
                         2


7
    The term "proximate cause" is often used    imprecisely, leading           Hartley, 103
                                                                       to confusion.

Wn. d at 778. Some cases confuse the term " roximate cause"with either actual cause or legal
  2                                       p
cause alone. Hartley, 103 Wn. d at 778. Here, we refer to proximate cause as the combination
                            2
of both cause in fact and legal cause.

State v. Smith, 111 Wn. d 1, 7,759 P. d 372 (1988).
                      2             2
                                                  8
43511 0 II
      - -



reasonable minds could reach only one conclusion. State v. Dennison, 115 Wn. d 609, 624, 801
                                                                           2

P. d 193 (1990).
 2

       Bauer's alleged acts could reasonably be found to be an actual cause of AKB' injuries.
                                                                                 -s

The gun TC brought to school was registered to Bauer. TC explained that he took the gun from

Bauer's house. The police searched the house and found multiple loaded guns in locations easily

accessible to the children. TC's guardian stated that he did not allow guns in his home. Given

these facts, reasonable minds could reach the conclusion that but for Bauer allegedly leaving

loaded guns easily accessible to TC, TC would not have brought a gun to school and AK B
                                                                                      -

would not have been injured.

       Legal causation presents a far more difficult question. Legal cause

       rests on policy considerations as to how far the consequences of defendant's acts
       should extend. It involves a determination of whether liability should attach as a
       matter of law   given   the existence of actual
                                                [        cause]. If the   factual elements ...   are


       proved, determination of legal liability will be dependent on "                      mixed

       considerations of logic, common sense,justice, policy, and precedent."

Hartley, 103 Wn. d at 779 (quoting King v. Seattle, 84 Wn. d 239, 250, 525 P. d 228 (1974)).
               2                                         2                  2

Whether a third degree assault Conviction could be obtained where the defendant, as here,
allegedly acts with criminal negligence to make a firearm available to an irresponsible person is
not addressed in any    case   law   we   have found.    Arguably, we could preclude liability in this

instance using "mixed considerations of logic, common sense, justice, policy, and precedent."

Hartley, 103 Wn. d at 779 (quoting King, 84 Wn. d at 250).But we are reluctant to impose our
               2                              2

view where the legislature and the case law have already provided guidance through legislation

and its interpretation by the courts.




                                                    9
43511 0 II
      - -



       The legislature has addressed Bauer's situation With enactments setting forth the elements

of third degree assault and specifically defining criminal negligence, the state of mind alleged

against Bauer. The courts have acted to define the word " ause"as used in the criminal context
                                                        c
and, in doing so, have provided guidance for how the acts of third parties affect criminal liability.

Using this guidance and without consideration of any view of what "should"happen here, we

conclude that this case may be presented to a jury.

       All of this is not to say that there is proximate cause in this case; rather, we decline to

hold that no rational fact finder could find that Bauer negligently caused AK B' injuries. The
                                                                              -s

jury should be allowed to make that determination after hearing both parties' fully developed
arguments.

       D.       Bauer's Arguments Are Not Persuasive

                1.     Affirmative Act


       Bauer first argues that the third degree assault statute requires an affirmative act by the

defendant. Bauer performed an affirmative act by allegedly leaving dangerous objects where an

irresponsible   person could   easily   access   them.   Division One of this court has found an


affirmative act under factually comparable circumstances. In Parrilla v. King County, 138 Wn.

App. 427, 431, 157 P. d 879 (2007), bus driver exited the bus with the engine running and a
                    3             a




9 Criminal negligence is defined in RCW 9A. 8.
                                        d):
                                        010(
                                           1)(
                                           0

        A person is criminally negligent or acts with criminal negligence when he or she
        fails to be aware of a substantial risk that a wrongful act may occur and his or her
        failure to be aware of such substantial risk constitutes a gross deviation from the
        standard of care that a reasonable person would exercise in the same situation.

                                                    10
43511 0 II
      - -




visibly erratic passenger on board. The passenger then crashed the bus into several vehicles.
Parrilla, 138 Wn. App. at 431. The court held that the bus driver affirmatively acted by exiting

the bus with the engine running and the passenger still on board. Parrilla, 138 Wn. App. at 438-

39. Similarly, Bauer affirmatively acted by allegedly leaving loaded guns in areas of his home
where    an   unsupervised      child could     easily   access   them." Moreover, Bauer's affirmative act

argument is better characterized as a legal causation argument; he is not arguing that he did not

leave the guns where they were accessible to TC, he is arguing that this act is too attenuated from

AK B' injury for him to be liable for her assault.
   -s
                                       12
                  2.         Chester        and "
                                                Cause"


          Bauer argues that our State Supreme Court has provided a definition of cause that,

applied here, requires        dismissal.      This argument is based on the Chester court's definition of




10
     Although Parrilla is a civil case, the proximate cause analysis is the same for both civil and
criminal cases. See McDonald, 90 Wn. App at 612, 616.

11 Bauer cites to Schwartz v. Elerding, 166 Wn. App. 608, 270 P. d 630, review denied, 174
                                                               3
Wn. d 1010, 281 P. d 686 ( 2012),as authority that his alleged passive negligence is not
   2                   3
sufficient to support his assault charge. In Schwartz, the plaintiff sued the parents of a 17 year-
                                                                                                -
old for negligence after the minor beat the plaintiff with a rifle that his parents purchased for him
and allowed him to keep in the family vehicle. 166 Wn. App. at 611 12. The court concluded
                                                                            -
that the parents did not violate their duty of care. Schwartz, 166 Wn. App. at 621. The court
also refused to accept the generalizations that "any and all minors have a dangerous proclivity
when it comes to guns" and that "a minor misusing a gun is foreseeable by almost everyone."
Schwartz, 166 Wn. App. at 620. Schwartz is inapposite here. First,the minor in Schwartz was a
  year old with
17-    -               a   hunting license    and gun    safety training who legally possessed   the gun. 166

Wn. App. at 616. By contrast, the minor in this case is a 9 year old without any safety training
                                                             -     -
who did not legally possess the gun. Second, the minor in Schwartz did not fire the gun, as
Bauer claims in his brief; he used it to beat the plaintiff. Here, TC actually caused the gun to
discharge. Finally, while the Schwartz court refused to generalize that a minor misusing a gun is
always foreseeable, this does not preclude a finding of foreseeability in all cases.

12 State v. Chester, 133 Wn. d 15, 940 P. d 1374 (1997).
                           2            2
                                                            11
11-
43511-
     0



      13
cause.      The first problem with this argument is that Bauer's actions here clearly come within

the Chester court's definition of cause: " be the cause of, to bring about, to induce or to
                                         to

compel." 133 Wn. d at 22 (citing BLACK's LAW DICTIONARY 221 (6th ed. 1990);
               2                                                          WEBSTER'S

THIRD NEW INTERNATIONAL DICTIONARY 356 (1986)). stated above, Bauer's actions could
                                              As

reasonably be found to be a "cause of the shooting. Secondly, the Supreme Court's discussion

of the word " ause"was in a much different context. The Chester court said that for the State to
            c

prevail, it   had to show that Chester      was   actively involved   in   causing   the child to disrobe. 133


Wn. d at 23. But the word " ause"in the charging statute was grouped with a series of active
  2                       c

verbs showing that the legislature's intent was that the State must prove that the defendant was

actively involved in making the sexually explicit conduct occur. RCW 9.
                                                                     b).
                                                                     040( 8A. There
                                                                        1)(
                                                                        6

is no such context in the third degree assault statute at issue here showing that the word means

anything other than cause in its usual sense. Additionally, it is not clear that the Chester,court's
definition    requires   a   different standard than   proximate   cause.     The court determined that the


stepdaughter's decision to undress occurred independently of the defendant's acts. Chester, 133
Wn. d at 22 23. In other words, his actions were not an actual cause of her undressing. While
  2         -

the court did not explicitly spell out a proximate cause analysis, it engaged in a similar inquiry.

           Later case law shows that the Chester court did not change the definition of cause as it is

construed     by Washington       courts.   Since Chester, Washington courts have reviewed statutes


13
     In Chester, the defendant was charged with sexual exploitation of a minor after he left a video
camera in his stepdaughter's bedroom, without her knowledge, to catch her dressing after her
shower. 133 Wn. d at 17.
              2                      RCW 9. )
                                         040( 8A. states, in part, A person is guilty of sexual
                                            1
                                            6                      "
exploitation of a minor if the person ... [ a] invites, employs, authorizes, or causes a minor to
                                             ids,
engage  in sexually explicit conduct." The court held that the defendant's conduct was not

prohibited by the sexual exploitation statute because the statute required an affirmative act by the
defendant that initiated or resulted in the child's sexually explicit conduct. Chester, 133 Wn. d
                                                                                              2
at 22, 24.
                                                        12
11-
43511-
     0




requiring proof that the defendant caused a certain result, and, rather than using the definition in

Chester, courts have construed cause to require a showing of proximate cause. See Berube, 150

Wn. d at 510; Christman, 160 Wn. App. at 750 54;McDonald, 90 Wn.App. at 612 16.
  2                                          -                              -

                 3.      Supervening Acts

         Bauer next argues that, even if the State's definition of cause is correct, his alleged

actions were not the proximate cause of the assault because TC's actions were supervening.,

Because the presence of a supervening act is a question for the jury, this argument is not

persuasive.

         An independent, intervening act by a third person that results in injury to the plaintiff

may break the chain of causation. Qualls v. Golden Arrow Farms, 47 Wn. d 599, 602, 288 P. d
                                                                     2                  2

1090 (1955).An act is supervening, and thus terminates the defendant's liability, only if it is not

reasonably    foreseeable.   Crowe   v.   Gaston, 134 Wn. d 509, 519, 951 P. d 1118 (1998). An
                                                        2                  2                "

intervening act is not foreseeable if it is `so highly extraordinary or improbable as to be wholly

beyond   the range of   expectability. "' Crowe, 134 Wn. d at 519 20 ( uoting Christen v. Lee, 113
                                                       2          - q

Wn. d 479, 492, 780 P. d 1307 (1989)). foreseeability of an intervening act is a question of
  2                  2              The

fact for the jury. Crowe, 134 Wn. d at 520.
                                2

         In Parrilla, the court held that there were sufficient facts to support a finding that the

damage caused by the erratic passenger was foreseeable. 138 Wn. App. at 440. The driver left a

bus, which was capable of causing severe harm, idling and unguarded within easy reach of an

obviously irresponsible person. Parrilla, 138 Wn.App. at 441.

         Here, a jury   must decide whether TC'
                                              s     intervening   acts — stealing   the gun and treating it

carelessly around otherswere foreseeable. Bauer allegedly knew that he had left loaded guns
                        —

where TC could access them, that TC was young and lacked firearm safety experience, and that
                                                    13
43511 0 II
      - -




TC had stolen money from his vehicle. Whether he could have foreseen that TC would steal and

carry around his gun is a question on which reasonable minds could differ. A jury should be

allowed to make that determination after hearing both parties' fully developed arguments.

           E.      Liability for Another's Conduct

           Bauer further argues that a. person can only be held criminally liable for the acts of

another under RCW 9A. 8.the complicity statute. To support this argument, Bauer cites to
                  020,
                    0

two cases: In re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wn. d 834, 215 P. d 166
                                                                  2             3

2009), State v. Bobenhouse, 166 Wn. d 881, 214 P. d 907 (2009).Both cases state that a
     and                          2             3

person may be criminally liable for the acts of another under RCW 9A. 8.but neither case
                                                                  020,
                                                                    0
I




    tates that this is the   only   situation where such   liability is possible. Chevrolet Chevelle, 166

Wn. d at 842 43;Bobenhouse, 166 Wn. d at 889. These cases do not prevent the application of
  2          -                    2

the usual proximate cause rules we described above.

           Furthermore, the complicity statute does not preclude Bauer's liability in this situation.

    Under the statute, a person is guilty of a crime if it is committed by the conduct of another for

    whom he is legally accountable. RCW 9A. 8. A person is legally accountable for the
                                        020(
                                           1
                                           0 ).
    conduct of another when he causes an innocent or irresponsible person to engage in such conduct

    or when he is an accomplice in the commission of the crime. RCW 9A. 8. Here,
                                                                    a),
                                                                    020(
                                                                       2)(
                                                                       0 c).

    the State, has not produced evidence to support accomplice liability, which requires the

    defendant's knowledge that his actions will promote a crime, but it has produced evidence that

    would support a jury's determination that Bauer caused TC's conduct. While it is not clear that

    the State will seek to instruct the jury under this section in this case, the facts of the case at this

    stage do not preclude it from doing so.


                                                      14
43 511 0 II
       - -



       Bauer also argues that it would be unfair to hold him responsible for TC's acts. As we

discussed above, it should be up to the jury to determine whether Bauer is in fact responsible. As

far as Bauer is arguing that he had no notice his actions were criminal, we discuss that argument

below in his vagueness        challenge. In sum, the trial court correctly denied Bauer's Knapstad

challenge.

11.    VAGUENESS CHALLENGE


       Bauer argues that the third degree assault statute is vague as applied to him. Because all

the elements of the statute are defined in statutes or case law,his argument fails.

       We review the constitutionality of a statute de novo. In re Det. ofKeeney, 141 Wn. App.

318, 323, 169 P. d 852 ( 2007).
               3                           We presume that statutes are constitutional, and one who

challenges a statute as unconstitutionally vague must prove vagueness beyond a reasonable
doubt. State v. Watson, 160 Wn. d 1, 11, 154 P. d 909 (2007).For statutes not involving First
                              2               3

Amendment rights, we evaluate the vagueness challenge by examining the statute as applied
under the     particular   facts of the   case.   Watson, 160 Wn. d at 6 (quoting State v. Coria, 120
                                                                2

Wn. d 156, 163, 839 P. d 890 (1992).A statute is void for vagueness if either (1) does not
  2                  2                                                           it
define the criminal offense with sufficient definiteness that ordinary people can understand what

conduct is proscribed or (2) does not provide ascertainable standards of guilt to protect against
                            it

arbitrary enforcement. Watson, 160 Wn. d at 6 (quoting State v. Williams, 144 Wn. d 197, 203,
                                     2                                          2

26 P. d 890 (2001)).
    3

        The requirement that a statute provide sufficient definiteness "protects individuals from

being held criminally accountable for conduct which a person of ordinary intelligence could not

reasonably understand to be prohibited."City ofSpokane v. Douglass, 115 Wn. d 171, 178, 795
                                                                          2

P. d 693 (1990).A statute is unconstitutional when it "orbids conduct in terms so vague that
 2                                                    f
                                                        15
11-
43511-
     0




persons of common intelligence must guess at its meaning and differ as to its interpretation."

Burien Bark Supply v. King County, 106 Wn. d 868, 871, 725 P. d 994 (1986).This does not
                                         2                  2

require impossible standards of specificity or absolute agreement. Douglass, 115 Wn. d at 179.
                                                                                   2

A]statute is not unconstitutionally vague merely because a person cannot predict with

complete certainty the exact point at which his actions would be classified as prohibited

conduct." City of Seattle v. Eze, 111 Wn. d 22, 27, 759 P. d 366 (1988).Undefined terms do
                                        2                2

not automatically make the statute unconstitutionally vague; citizens may look to statutes and

court rulingswhich are "presumptively available to [the public]" — clarification. Douglass,
             —                                                for

115 Wn. d at 180 (quoting Smith, 111 Wn. d at 7). statute that employs words with a well-
      2                                2        A

settled common law meaning generally will be sustained against a charge of vagueness. State v.

Reader's DigestAss'n, Wn. d 259, 274, 501 P. d 290 (1972).
                    81  2                  2

       The requirement that a statute provide ascertainable standards of guilt protects against

arbitrary, erratic, and discriminatory enforcement. Douglass, 115 Wn. d at 180. In determining
                                                                    2

whether a statute protects against arbitrary enforcement, we decide whether the statute proscribes

conduct   by             inherently
               resort to "`           subjective   terms. "'   Douglass, 115 Wn. d at 181 (quoting State
                                                                               2

v. Maciolek, 101 Wn. d 259, 267, 676 P. d 996 (1984)). must ask whether the terms are
                   2                  2              We

inherently subjective     in the context in which       they   are   used. "" . Douglass,   115 Wn. d at 181
                                                                                                  2

quoting State v. Worrell, 111 Wn. d 537, 544, 761 P. d 56 (1988)). statute is unconstitutional
                                2                  2            A

only if it invites an inordinate amount of police discretion. Douglass, 115 Wn. d at 181.
                                                                              2

       The third degree assault       statute is not   unconstitutionally    vague.   It defines the offense

with sufficient definiteness and      provides   ascertainable standards of      guilt. Bauer was charged

under RCW 9A. 6.
          d), State to prove that he acted with criminal
          031(
             1)(
             3  which requires the


                                                       16
43511 0 II
      - -




negligence and caused bodily harm to another person by means of a weapon. All of the elements

are defined by statute or case law. " riminal negligence"is defined in RCW 9A. 8.
                                    C                                      d):
                                                                           010(
                                                                              1)(
                                                                              0

       A person is criminally negligent or acts with criminal negligence when he or she
       fails to be aware of a substantial risk that a wrongful act may occur and his or her
       failure to be aware of such substantial risk constitutes a gross deviation from the
       standard of care that a reasonable person would exercise in the same situation.

Bodily harm" is defined in RCW 9A. 4. "physical pain or injury, illness, or an
                               a)
                               110(
                                  4 as
                                  0 )(

impairment of physical condition." As we discussed above, cause" means proximate cause.
                                                          "

Although this definition is not statutory, it is a well-
                                                       settled common law definition that is

presumptively available to the public through case law. See, e. .,
                                                              g Berube, 150 Wn. d at 510 (the
                                                                              2

homicide by abuse statute requires proof that defendant caused the death of the victim, and

proximate    cause   is   an   element of homicide   by abuse). The terms of the statute are sufficiently

defined such that a reasonably intelligent person would understand what conduct is prohibited,

and the statute does not invite an inordinate amount of discretion.

       Finally, Bauer argues that, should we deny his vagueness challenge, this judicial

expansion of the third, egree assault statute is unconstitutional because it retroactively applies a
                      d

novel interpretation of the statute. Bauer's argument is based on Bouie v. City of Columbia, 378

U. . 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964). In Bouie, the Supreme Court held that the
 S

South Carolina Supreme Court's retroactive application of a novel construction of a trespass
statute violated due process.         378 U. . at 350.
                                           S                 The defendants were convicted of trespassing

after they refused to leave a lunch counter when asked by the store manager. Bouie, 378 U. . at
                                                                                         S
348. South Carolina's criminal. trespass statute stated that "entry upon the lands of another ...

after notice from the owner or tenant prohibiting such entry, shall be a misdemeanor." Bouie,

378 U. .at 349 n. citation omitted).The Supreme Court agreed with the defendants that South
     S          l (

                                                        17
11-
43511-
     0




Carolina did not give them a fair warning that their conduct was criminal under the statute.

Bouie, 378 U. . at 355. The Court noted that "[ here can be no doubt that a deprivation of the
            S                                t]

right of fair warning can result not only from vague statutory language but also from an

unforeseeable and retroactive judicial expansion of narrow and precise statutory language."

Bouie,    378 U. . at 352.
               S             There was nothing in the statute to indicate that it also prohibited

remaining on the land of another after being asked to leave. Bouie, 378 U. .at 355. There was
                                                                         S

no support in prior South Carolina decisions ' for extending the reach of the statute to include

remaining on another's property; in fact, there were decisions requiring proof of notice

prohibiting entry. Bouie, 378 U. . at 356. South Carolina's application of its new construction
                               S

of the trespass statute to convict the defendants violated their due process rights. Bouie, 378 U. .
                                                                                                 S
at 362.


          Bouie is not applicable to these facts. At this point in the proceedings, there has been no.

change in the law. All we have done is apply the well -settled definition of cause. As part of the

causation analysis, the jury must be allowed to consider whether TC's acts terminated Bauer's

liability. This is not a new construction of the law; it is an application of existing law regarding
causation.


III.      CONCLUSION


          We have concluded that this case may be tried. We are told that this decision will open

the floodgates to charges against innocent parents for the unanticipated criminal acts of their

children where the parents' only fault was in failing to totally secure an item that could

potentially be dangerous. We do not anticipate such a flood. But if a parent leaves a live hand

grenade on the kitchen counter, they could be at risk of criminal prosecution. The reason why a

hand grenade could lead to charges and a butcher knife will not is in the state of mind that must
                                                  18
43 511 0 II
       - -




be proventhat the parents' actions were at least a gross deviation from a normally careful
          —

person's conduct. Faced with this high burden, we do not anticipate that prosecutors will be

filing charges for failing to secure normal household items such as knives, power tools, and the

like.


         We have carefully interpreted the statute that Bauer is charged under, giving the words

their   ordinary meaning   and   applying accepted Washington    case   law.   The State has alleged

sufficient evidence under the statute as we have construed it to take the matter to trial.

         Affirmed.




I concur:




         Johanson, A. .
                   J.
                    C




                                                  19
43511 0 II
      - -




         BRIDGEWATER, J. .
                      T. ( — The majority upholds the trial court's denial of
                       P dissenting)

Bauer's Knapstad motion to dismiss the charge against him. I do not downplay the hazard to

others by keeping loaded firearms around children or the damage done to the injured victim,
                                                     '

another child. But even in the face of tragedy, this is a case involving potential criminal liability

and imprisonment. As such, we are bound to strictly construe the law, not to stretch it to fit the

exigencies of   the situation.   Because the majority impermissibly extends the law of criminal

negligence and criminal liability for the acts of another, I respectfully dissent.

         The undisputed facts, based upon the police reports, center upon a theft of a loaded

firearm from Bauer's residence. T. ., nine -year old child of Bauer's female friend, committed
                                 Ca              -

theft of a firearm, a class B felony during a weekend visit with his mother where he slept in a

room where loaded firearms were kept. T. . and his sisters had been told never to touch any of
                                       C

the firearms because they were all loaded. T. . stole the gun and took it to school some days
                                            C

later where, some 20 miles from the Bauer residence, the gun accidentally discharged, injuring

one of T. .'
       s classmates.
        C


         The State   charged Bauer with   third   degree assault under RCW 9A. 6. The
                                                                           d).
                                                                           031(
                                                                              1)(
                                                                              3

State conceded at oral argument that the legislature's statute regarding liability for




14
     Judge C. C. Bridgewater is serving as a judge pro tempore of the Court of Appeals, Division
II,pursuant to CAR 21( ).
                     c

     RCW 9A. 6.
         300(
            6).
            5

                                                   20
43 511 0 II
       - -



the acts of another, RCW 9A. 8. not applicable to this charge, arguing that culpability
                         020 was
                           0

for criminal negligence under the third degree assault statute is an additional method by which

criminal liability for the acts of another could be imposed. The majority accepts this argument. I

disagree.

                                     I. STATUTORY INTERPRETATION


        We review questions of statutory interpretation de novo. State v. Jacobs, 154 Wn. d 596,
                                                                                        2

600,   115 P. d 281 ( 2005). When
            3                            interpreting a statute, we seek to ascertain the legislature's

intent. Jacobs, 154 Wn. d at 600. Where a statute's meaning is plain on its face, we must give
                      2
                                             the   legislature's   intent.   Jacobs, 154 Wn. d
                                                                                           2     at 600. We
effect to that   meaning   as   expressing

determine the statute's plain meaning from the ordinary meaning of its language, as well as from

the statute's general context, related provisions, and the statutory scheme as a whole. Jacobs,
154 Wn. d at 600.
      2


        Furthermore, we must strictly construe statutes involving a deprivation of liberty. In re

Det. of Hawkins, 169 Wn. d 796, 801, 238 P. d 1175 (2010).Strict construction requires that,
                       2                  3                "

16 RCW 9A. 8.provides:
       020  0
      1) person is guilty of a crime if it is committed by the conduct of another
         A
      person for which he or she is legally accountable.
      2) person is legally accountable for the conduct of another person when:
         A
      a) Acting with the kind of culpability that is sufficient for the commission of the
         crime, he or she causes an innocent or irresponsible person to engage in such
         conduct; or
         b) or she is made accountable for the conduct of such other person by this
           He
         title or by the law defining the crime; or
         c) or she is an accomplice of such other person in the commission of the
           He
         crime.
The State charged Bauer under RCW 9A. 8. unlawful possession of a firearm by a
                                      a)
                                      020(   2 for
                                             0 )(
minor under the theory that he caused an innocent agent or irresponsible person, T. ., possess
                                                                                  C to
a firearm. The trial court dismissed this count under a Knapstad motion; because T. . pleaded
                                                                                  C
guilty to reckless endangerment in juvenile court, he was neither an innocent agent nor an
irresponsible person. The State did not appeal the dismissal of Bauer's unlawful possession
charge.
                                                        21
43511 0 II
      - -




given a choice between a narrow, restrictive construction and a broad, more liberal

interpretation, we must choose the first option."'
                                                Hawkins, 169 Wn. d at 801 (quoting Pac. Nw.
                                                               2

Annual Conference of United Methodist Church v. Walla Walla County, 82 Wn. d 138, 141, 508
                                                                         2

P. d 1361 (1973)).
 2

          Finally, "[ e interpret statutes in pari materia, considering all statutes on the same
                   w]

subject, taking into account all that the legislature has said on the subject, and attempting to

create a unified whole."Diaz v. State, 175 Wn. d 457, 466, 285 P. d 873 (2012).Under the in
                                             2                  3

pari materia rule, when a specific statute punishes the same conduct punished under a general
                   "

statute, they are concurrent statutes and the State must charge only under the specific statute."

State v. Presba, 131 Wn.App. 47, 52, 126 P. d 1280 (2005)
                                          3

          Here, the State charged    Bauer for a third   degree   assault committed   by T. .
                                                                                          C     RCW


d)
031(
9A. 6.generally imposes liability for third degree assault, but the legislature
   1
   3 )(

specifically imposed liability for acts of another under RCW 9A. 8. Thus, if the State was
                                                             020.
                                                               0

to have charged Bauer for the assault committed by T. ., should have charged him under
                                                    C it
RCW 9A. 8.
    020.
      0


          But I would further hold that even RCW 9A. 8.does not impose liability for T. .'
                                                 020
                                                   0                                 sC

acts    under the facts of this   case.   RCW 9A. 8.
                                              a) provides that a person is
                                              020(
                                                 2)(
                                                 0  generally

criminally liable when he "causes"an innocent agent or irresponsible person to commit a crime.

As our Supreme Court has observed, causes" is an active verb requiring an affirmative act.
                                   "
State    v.   Chester, 133 Wn. d 15, 22, 940 P. d 1374 ( 1997).This is consistent with RCW
                             2                2




17 The majority distinguishes the Chester court's construction of the statutory term " auses"on
                                                                                     c
the basis that,in the statute at issue in that case, causes"was included among a list of other
                                                     "
active verbs. Majority at 11. But an active verb is an active verb.
                                                  22
43511 0 II
      - -




020'
9A. 8.
   s
   0 definition of accomplice liability, which consists entirely of active verbs. Finally,
this is consistent with statutes in which the legislature has included liability for the acts of

another within the    crime's   definition.         For example, our Supreme Court has held that

Washington's stalking statute, through its usage of a definition of harassment"that included the
                                                                    "

phrase "course of conduct,"encompassed liability for "directing a third party to harass the
victim." State    v. Becklin, 163 Wn. d 519, 526 29, 182 P. d 944 (2008) emphasis added).
                                    2            -        3              (
                                          19
Likewise, Washington's riot     statute        requires active participation in a riot for liability for the

acts of another to attach. State v. Montejano, 147 Wn. App. 696, 700 01, 703, 196 P. d 1083
                                                                     -             3

2008).Thus, it is clear whether through RCW 9A. 8.or crimes defined as including such
                                            020
                                              0
liability for the acts of another, our legislature knows how to impose such liability and has

chosen. to require some form of affirmative action of causing or participating in the other

person's crime.

       Despite these manifestations of legislative intent, the majority interprets the law as

imposing criminal liability on Bauer under a theory that he negligently failed to act to secure his
loaded firearms. Under the majority's interpretation, though, the following scenarios could have

potentially subjected a person to being charged with third degree assault: (1) child stealing a
                                                                              a


18 RCW 9A. 8.provides:
       0200
      3) person is an accomplice of another person-in the commission of a crime if:
        A
      a)With knowledge that it will promote or facilitate the commission of the crime,
        he or she:
        i)Solicits, commands, encourages, or requests such other person to commit it;or
        ii)
          Aids or agrees to aid such other person in planning or committing it;or
19
     RCW 9A. 4.
         010(
            1 provides:
            8 )
        A person is guilty of the crime of riot if,acting with three or more other persons,
        he or she knowingly and unlawfully uses or threatens to use force, or in any way
        participates in the use of such force, against any other person or against property.
                                                        23
43511 0 II
      - -



butcher knife from a cutting block in the kitchen, taking it to school, and accidentally cutting a

classmate and (2) person allowing a party for teenagers at his house, the teenagers covertly
                 the

drinking liquor from the person's supply, and one of the teenagers subsequently assaulting

someone while intoxicated. But such a theory of liability—
                                                         whether in the hypotheticals or as

charged in this casedoes not fit within the extensive framework or examples provided by the
                    —

legislature, and neither the State nor the majority provide a single case in which Washington
courts have found a defendant criminally liable for another's acts based on the defendant's

failure to act.   The majority's interpretation impermissibly extends this state's law of criminal

negligence and criminal liability for the acts of another.

       I further observe that RCW 9A. 8.
                                  b) that a person is criminally liable for
                                  020(
                                     2)(
                                     0 provides

the acts of another when "[ e or she is made accountable for the conduct of such other person . .
                         h]

 by the law defining the crime." Thus, it might be argued that the third degree assault statute

falls within RCW 9A. 8.
                 b)the assault statute makes Bauer liable for T. .'
                 020(
                    2)(
                    0 because                                 s acts
                                                               C

under a theory of criminal negligence and proximate cause.

        But such an interpretation of the third degree assault statute would be incorrect. As I
discuss above, the legislature plainly knows how to make a person liable for the acts of another
in statutes   defining crimes,   such   as   the   rioting   and   stalking   statutes.   Liability for the acts of

another is not express in the third degree assault statute.

        Furthermore, concluding that the third degree assault statute implicitly encompasses such

liability, as urged by the State and the majority, would violate the statutory interpretation canons

of noscitur a sociis and ejusdem generis. Under the canon of noscitur a sociis, we must interpret

statutory terms in light of other terms with which they are associated. State v. Budik, 173 Wn. d
                                                                                              2

727, 735 36, 272 P. d 816 (2012) under noscitur a sociis, affirmative act requirement of five
         -        3              (
                                                         M
11-
43511-
     0 .




statutory provisions defining crime of rendering criminal assistance created an inference that

remaining provisions also required      an   affirmative   act). Under the canon of ejusdem generis,

where there is a "specific, specific, general" pattern, general provisions must conform to the

specific examples. See Bowie v. Wash. Dep't of Rev.,171 Wn. d 1, 12, 248 P. d 504 (2011).
                                                          2               3

Here, the legislature has given us a list of criteria for imposing criminal liability on someone for

the acts of another and the majority's criminal negligence and proximate cause theory simply

does not fit within the extensive framework or examples enumerated by the legislature in RCW

020.
9A. 8. Those acts which impose liability for the acts of others are affirmative acts causing
  0

an innocent or irresponsible person to commit the crime or affirmatively acting as an accomplice

to the crime itself. See RCW 9A. 8. Applying the majority's theory of criminal
                             a),
                             020(
                                2)(
                                0  c).                    (

negligencewhich requires
          —                        no   affirmative    actunder
                                                          —        RCW     9A. 8.general
                                                                           b)' )(
                                                                           020(
                                                                              s
                                                                              2
                                                                              0

provisions would contradict the specific provisions of RCW 9A. 8. (c)
                                                           a)and, thus,
                                                           020(
                                                              2 and
                                                              0 )(
violate noscitur a sociis and ejusdem generis. Accordingly, interpreting RCW 9A. 8.
                                                                             b)
                                                                             020(
                                                                                2
                                                                                0 )(

and the third degree assault statute to impose liability for the acts of another in this case would be

improper.


          Thus, I would strictly construe RCW 9A. 8.to require an affirmative act causing the
                                              020
                                                0

crime before imposing liability for the acts of another. And, as I discuss above, the third degree

assault charge against Bauer is based not on an affirmative act but a negligent failure to act by

failing   to   secure   his loaded firearms.    Accordingly, because RCW 9A. 8. does not
                                                                         020
                                                                           0



20
     Even if in pari materia is inapplicable here and the third degree assault statute potentially
encompasses liability for the acts of another, it also uses the action verb "
                                                                            causes."RCW
d).
031(
9A. 6.Thus, the statute still required an affirmative act by Bauer before such liability
       1)(
       3
could attach.
                                                      25
11-
43511-
     0




encompass such a theory of liability, I would hold that the trial court erred in denying Bauer's

Knapstad motion to dismiss the third degree assault charge.

                           Il. MENTAL STATE AND LEGAL CAUSATION


       In the alternative,.
                         I also address the majority's view that the third degree assault statute

imposes criminal liability for the acts of another based on a theory of criminal negligence and

proximate cause. Even under the majority's view, I would hold that the State's alleged facts fail

to demonstrate the mental state statutorily required to commit this crime or the legal causation

necessary under the majority's view.

       First, a person commits third degree assault when he, w] criminal negligence, causes
                                                             "[ ith

bodily harm to another person by means of a weapon or other instrument or thing likely to
produce bodily harm."RCW 9A. 6.
                         d) added).RCW 9A. 8.
                         031(
                            1 emphasis
                            3 )(       (010(
                                        d),1 which
                                           0 )(
defines criminal negligence, provides:

       A person is criminally negligent or acts with criminal negligence when he or she
       fails to be aware of a substantial risk that a wrongful act may occur and his or her
       failure to be aware of such substantial risk constitutes a gross deviation from the
       standard of care that a reasonable person would exercise in the same situation.

Thus, under RCW 9A. 6.the State must prove that Bauer was oblivious to a
                d),
                031(
                   1)(
                   3

substantial risk"that a wrongful act might occur when the risk would have been blindingly

obvious to a reasonable person.

       Nothing   in these facts demonstrates the     required mental   state.   T. . had not expressed
                                                                                 C

any fascination with firearms; any fear, such that he felt he needed a firearm; or any proclivity to
steal firearms before, without warning,   stealing   one   of Bauer's firearms.    In short, Bauer had

expressly warned T. . not to touch the firearms, and T. . exhibited no previous signs of
                  C                                   C
disobeying this warning. All the State demonstrates under these facts is the general notion that a

                                                26
43511 0 II
      - -




childor anyone might commit an unexpected criminal act. But such an amorphous fear is
     —         —

insufficient to demonstrate a substantial risk of a wrongful act that would have been obvious to a

reasonable person.

       Furthermore, the majority concludes that we need not address the issue of legal

causationthat is, a determination of whether liability should attach as a matter of law"and a
          —       "

necessary component of   proximate      cause —   because the legislature and Washington courts have

provided "guidance"in this case. Hartley v. State, 103 Wn. d 768, 779, 698 P. d 77 (1985);
                                                         2                  2

Majority at 9. Although Washington courts have held that the term "causes" in some criminal
statutes encompasses the concept of proximate cause, the majority admits that whether a person

may be criminally liable for the acts of another under the third degree assault statute is an issue

of first impression in this state. Majority at 9. Moreover, neither the State nor the majority cites
to a single case in which the statutory term "causes" has been employed to extend criminal
liability for the acts of another. Finally, legal causation is a question of law for the courts, not

the jury. Tae Kim v. Budget Rent A Car Sys.,Inc.,143 Wn.2d 190, 204, 15 P. d 1283 (2001).
                                                                         3
Because legal causation is a question of law " ependent on `mixed considerations of logic,
                                             d
common    sense, justice, policy, and   precedent "' properly resolved only by this court, we must

address it. See Hartley, 103 Wn. d at 779 (quoting King v. Seattle, 84 Wn. d 239, 250, 525 P. d
                               2                                         2                  2

228 (1974)).

        I begin from the position that Washington law does not criminalize keeping a loaded
firearm in one's home. Furthermore, the United States Supreme Court has held that the Second

Amendment protects, at minimum, an individual's           right to keep
                                                            "             and bear   arms ...   for self -


defense within the home."McDonald          v.   City of Chicago, _   U. . ,
                                                                      S        130 S. Ct. 3020, 3044,

177 L. Ed. 2d 894 (2010). Thus, as a matter of policy, the majority's approach would extend
                                                     27
43511 0 II
      - -




criminal liability to Bauer's otherwise lawful and constitutionally protected act of keeping loaded

firearms within his home..


       Moreover, the majority's approach runs contrary to Washington precedent on liability for

the acts of another.   In civil negligence cases, the concepts of duty and legal causation are

linked to policy considerations."Hartley, 103 Wn. d at 779. Thus, whether a duty exists, like
                                                2

legal causation, is a question of law for this court. Degel v. Majestic Mobile Manor, Inc.,129
Wn. d 43, 48, 914 P. d 728 ( 1996).
  2                2                       Because duty and legal causation are "intertwined,"

discussion of whether a legal duty exists under the circumstances is helpful in addressing

whether legal causation also exists. See Hartley, 103 Wn. d at 779 80; Donaldson v. City of
                                                        2          -

Seattle, 65 Wn. App. 661, 66.9 n:4, 831 P. d 1098 (1992).
                                1        2

       The general rule at common law is that a private person does not have a duty to protect
others from the criminal acts of third parties. Tae Kim, 143 Wn. d at 195. Division One of this
                                                               2

court has considered whether Washington law imposes a specific duty to secure firearms within

the home from theft and subsequent use in criminal acts. In McGrane v. Cline, 94 Wn. App.

925, 927, 973 P. d 1092, review denied, 138 Wn. d 1018 ( 1999), Clines' 16- old
               2                              2               the         year -

daughter, without her parents' permission, invited young men over while her parents were away.

Either the Clines' daughter gave away or one of the young men stole an unsecured firearm from

the residence. McGrane, 94 Wn. App. at 927. The young man subsequently used the firearm to

kill McGrane during a robbery; her estate sued the Clines for breach of an alleged duty to the

general public to secure the firearm. McGrane, 94 Wn. App. at 927 28. In declining to impose
                                                                  -

such a duty, Division One reasoned:

        T] are too many issues of legitimate public debate concerning the private
            here
        ownership and storage of firearms for this court to impose potential liability upon
        firearm owners based solely upon factors of ownership, theft, and subsequent
                                                 28
11-
43511-
     0



           criminal use of a firearm. We believe that the proper arena to resolve issues of
           such competing societal interests is legislative rather than judicial.

McGrane, 94 Wn. App. at 929. Like Division One's approach in McGrane, I would leave it to

the legislature to resolve the numerous competing rights, realities, interests, and issues of public

debate by imposing criminal liability, if any, for T. .' and criminal use of Bauer's firearm.
                                                   s theft
                                                    C

           Moreover, Division One has also addressed the question of whether "civil liability

should] be imposed upon those who plan and furnish beer for a high school graduation keg party

where criminal violence erupts." Cameron v. Murray, 151 Wn. App. 646, 649, 214 P. d 150,
                                                                                3

review denied, 168 Wn. d 1018 (2009).In Cameron, a negligence suit ensued after an attendee
                     2

at a high school senior keg party struck the victim in the head with a heavy glass beer mug,
                          in the victim's death.       Cameron, 151 Wn. App.       at 649 50.
                                                                                          -     On appeal,
eventually resulting

Division One rejected the generalization that "bad things happen when crowds of young people

get very drunk together" as the sole basis of liability for negligence. Cameron, 151 Wn. App. at
654.       Lacking any specific evidence that the parties who planned the keg party and furnished
liquor for it were aware that the assailant had a propensity for violence, Division One refused to
impose civil liability on those parties for the assailant's criminal act. Cameron, 151 Wn. App. at
ie


           Further, Division Three of this court has rejected the generalizations that "` ll minors
                                                                                        a
have   a   dangerous proclivity   when it   comes to   guns "'   and "` minor misusing a gun is foreseeable
                                                                     a

by   almost everyone "'    as bases for finding civil negligence. Schwartz v. Elerding, 166 Wn. App.

608, 620,      270 P. d
                    3     630,    review   denied,   174 Wn. d 1010 ( 2012).
                                                           2                       In fact, Division Three

undercut this generalization by observing the numerous instances in which Washington law



                                                        Im
43511 0 II
      - -




permits   minors to possess firearms .    Schwartz, 166 Wn. App. at 620 21. Accordingly, without
                                                                        -

any specific evidence of a teenager's involvement in any previous altercations, Division Three

refused as a matter of law to impose liability on the defendants under a negligence theory after

the teenager used the butt of a gun the defendants had given him to assault someone. Schwartz,

166 Wn. App. at 611, 617, 620 21.
                              -

          Finally, I elaborate on some of the specific circumstances in which Washington law

permits    minors to possess and    use   firearms.   RCW 9.1.provides that a minor may
                                                          042(
                                                             7
                                                             4 )

possess firearms "[ n real property under the control of his or her parent, other relative, or legal
                 o]

guardian and who has the permission of the parent or legal guardian to possess a firearm."
Similarly, RCW 9.1.permits a minor's firearm possession "[ t his or her residence and
               042(
                  8
                  4 )                                   a]
who, with the permission of his or her parent or legal guardian, possesses a firearm for the
purpose     of exercising the   rights specified   in RCW   9A. 6. RCW 9A. 6.
                                                            020(
                                                               3)."
                                                               1       020(
                                                                          3
                                                                          1 )

generally permits the use of reasonable force in defending one's self or third parties from
personal harm or harm to property in their possession. Thus, Washington law permits that, with
the appropriate permissions, minors may not only possess but use firearms within the home for
self defense, defense of others, and defense of property. Arguably, the law contemplates that, in


21
     RCW 9.1.provides the circumstances in which minors may possess firearms.
         042
          4
22
     RCW 9A.16. 20(provides:
            3)0
          The use, attempt, or offer to use force upon or toward the person of another is not
          unlawful in the following cases:

          Whenever used by a parry about to be injured, or by another lawfully aiding him
          or her, in preventing or attempting to prevent an offense against his or her person,
          or a malicious trespass, or other malicious interference with real or personal
          property lawfully in his or her possession, in case the force is not more than is
          necessary.

                                                      30
43511 0 II
      - -



order to be useful for self defense purposes, such firearms may need to be readily accessible and

operable by a minor, that is, unsecured and loaded. Thus, the majority's broad imposition of
criminal liability for failure to secure a loaded gun kept within the home would conflict with the

legislature's express authorization of minors to use firearms within the home for lawful defense

purposes.


         In sum, Washington law does not prohibitand,to some extent, the Second Amendment
                                                 —

affirmatively protects —keeping firearms at home. Washington courts have declined to impose a

duty to the general public to secure firearms within the home from theft and subsequent criminal
                     that such       heavy policy question is best addressed   to the   legislature.   And
use,   recognizing               a




Washington courts have held that, as a matter of law, bare generalizations such as "all minors
have a dangerous proclivity when it comes to guns" are insufficient on their own to maintain a

civil negligence claim.

         Here, where the State's allegations consist of little more than such a broad generalization,

I would hold that, as a matter of law and in accord with Washington precedent, the facts fail to

establish   legal causation   in the civil context.   Such precedent should apply with even greater

force.in criminal cases where, as here, defendants face a possible loss of their liberty and the

social stigma associated with a criminal conviction. Moreover, consistent with Washington law

and policy, I would decline to judicially impose a duty to secure firearms within one's home.

The imposition of such a duty would require a careful balancing of safety and civil liberty issues


23
   Likewise,the same is true for adults who need to engage in defense of homes where children
are present. For many Washingtonians who are otherwise responsible firearm owners, law .
enforcement may only be able to respond within minutes when seconds matter. Because this
court is unable to hear from such citizens before subjecting them to potential criminal liability
for keeping their firearms necessarily operable and accessible within the home, we are a poor
substitute for the legislature in situations such as this case. Cf.McGrane, 94 Wn. App. at 929.
                                                      31
43511 0 II
      - -




involving adultssuch as the potential use of stolen firearms in crimes and the civil rights of
                —

adults to own and use firearms in defense of the home as well as Washington laws
                                                      —

demonstrating approval of minors possessing and using firearms within the home for lawful

purposes, including self defense. Thus, the legislature is better suited to receive evidence far

beyond this court's purview in addressing the many competing public interests surrounding this
issue and to craft the contours of such a duty, if any. Accordingly, I would hold that the trial

court erred in denying Bauer's Knapstad motion, and I would remand for dismissal of the charge

against him.




                                     Bridgewater, JPT




                                               32
