                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          June 20, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 48941-4-II

                               Respondent,

        v.

 PATRICK NATHAN SHENAURLT,                                    UNPUBLISHED OPINION

                               Appellant.

       JOHANSON, J. — Patrick N. Shenaurlt challenges his jury convictions for two counts of

third degree assault. Shenaurlt argues that (1) the trial court committed prejudicial error by

responding to a jury question without notice to and input from counsel and (2) insufficient evidence

supports the jury’s finding that Shenaurlt had the intent to commit assault. We reject Shenaurlt’s

arguments and affirm his convictions.

                                              FACTS

                                        I. TRIAL TESTIMONY

       Officers Zack Spangler and Dean Waubanascum responded to a report that Shenaurlt was

yelling on a specific street corner. As the officers approached Shenaurlt, he was shouting

“nonsensical stuff” but stopped screaming as the officers came closer. Report of Proceedings (RP)

(March 1, 2016) at 40. In response to the officers’ questions, Shenaurlt stated that his name was

Jesus Christ, and he refused medical and mental health services offered by the officers. When the
No. 48941-4-II


officers informed Shenaurlt that his yelling violated a noise ordinance and he needed to reduce his

volume, Shenaurlt said, “‘Okay’” and began to whisper responses to the officers’ questions. RP

(March 1, 2016) at 152.

       As soon as the officers returned to their patrol vehicle, Shenaurlt began “screaming at the

top of his lungs,” and the officers exited the vehicle to arrest him. RP (March 1, 2016) at 44.

Officer Waubanascum approached Shenaurlt, stated that he was under arrest, and grabbed his right

arm to carry out the arrest. Officer Spangler testified that he observed Shenaurlt ball his left hand

into a fist, which Officer Spangler interpreted to be a “striking or assaultive or pre-attack

indicator.” RP (March 1, 2016) at 44. Officer Spangler grabbed Shenaurlt’s left wrist and elbow

in an attempt to force Shenaurlt’s hand behind his back and place him in handcuffs.

       Shenaurlt started resisting both officers, trying to free his arms. Shenaurlt pulled his left

arm forward and freed it from Officer Spangler’s grasp and then “threw it back at [Officer

Spangler’s] head,” striking the left side of his face and jaw line and causing him to stagger

backwards. RP (March 1, 2016) at 45. Officer Spangler testified that the elbowing to his face

appeared purposeful.

       Shenaurlt lost his footing and fell on his back. Officer Waubanascum attempted to grab

and subdue Shenaurlt, but he pulled his right leg close to his chest, looked directly at Officer

Waubanascum, and kicked him in the knee, causing the officer to stumble backwards. Officer

Waubanascum testified that Shenaurlt’s kick appeared purposeful and intentional.

       After these contacts occurred, Shenaurlt fled, and the officers chased him, deploying

electronic control tools (stun guns) and pepper spray in an effort to subdue him. The officers also

issued verbal commands and made numerous attempts to physically restrain Shenaurlt, only for


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No. 48941-4-II


him to pull away and continue running. At one point during the chase, Shenaurlt appeared cornered

and assumed a fighting stance with his hands balled into fists near his head, but then he managed

to run away. During Shenaurlt’s flight, he threw several objects in the officers’ directions,

including a bicycle, which hit Officer Waubanascum’s legs.

       Shenaurlt continued running, and eventually the officers caught up to him. Shenaurlt threw

a punch at Officer Waubanascum but did not make contact. Officers Waubanascum, Spangler,

and Wendy Haddow Brunk, who had recently arrived on the scene, worked together to physically

restrain and handcuff Shenaurlt.

       The State charged Shenaurlt with two counts of third degree assault under RCW

9A.36.031(1)(g).

                                      II. JURY INSTRUCTIONS

       The parties agreed to the jury instructions.

       Instruction 7 stated, “A person commits the crime of assault in the third degree when he or

she assaults a law enforcement officer or other employee of a law enforcement agency who was

performing his or her official duties at the time of the assault.” Clerk’s Papers (CP) at 54.

       Instruction 8 stated, “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. A touching

or striking is offensive if the touching or striking would offend an ordinary person who is not

unduly sensitive.” CP at 55.

       Instruction 9 stated, “A person acts with intent or intentionally when acting with the

objective or purpose to accomplish a result that constitutes a crime.” CP at 56.




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No. 48941-4-II


       Instruction 10 provided, in relevant part, “To convict the defendant of the crime of assault

in the third degree in Count I, each of the following elements of the crime must be proved beyond

a reasonable doubt: (1) That on or about November 15, 2015, the defendant assaulted Z.

Spangler.” CP at 57.

       Instruction 11 similarly stated, in relevant part, “To convict the defendant of the crime of

assault in the third degree in Count II, each of the following elements of the crime must be proved

beyond a reasonable doubt: (1) That on or about November 15, 2015, the defendant assaulted D.

Waubanascum.” CP at 58.

       During deliberations, the jury submitted the following question to the trial judge: “[i]n

instruction number 9, does the phrase ‘when acting with objective or purpose to accomplish a

result that constitutes a crime’ refer to any crime or the specific crime of assault in this case?” CP

at 61. Without notifying counsel, the judge responded, “You must go off the instructions as

written.” CP at 61.

       The jury found Shenaurlt guilty as charged. Shenaurlt filed a motion to arrest judgment

and/or motion for a new trial on the grounds that the trial court erred by failing to notify and consult

counsel before responding to the jury’s question. The trial court denied Shenaurlt’s motion, ruling

that the response to the jury question constituted harmless error and that no additional instructions

clarifying the definition of intent would have been appropriate.

       Shenaurlt appeals his convictions.




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No. 48941-4-II


                                            ANALYSIS

                                         I. JURY QUESTION

       The parties agree that the trial court erred when it answered the jury’s question without

notifying or consulting counsel. But the parties disagree over whether the error was harmless. We

hold that although the trial court erred, the error was harmless because the trial court merely

instructed the jurors to refer to instructions they had been given.

                                         A. RULES OF LAW

       When the jury submits a question about instructions to the trial court, the trial court “shall

notify the parties of the contents of the questions and provide them an opportunity to comment

upon an appropriate response.” CrR 6.15(f)(1). A trial court commits error when it fails to notify

and consult counsel before responding to a jury question. State v. Jasper, 158 Wn. App. 518, 541,

245 P.3d 228 (2010), aff’d, 174 Wn.2d 96, 271 P.3d 876 (2012). We review whether the error is

prejudicial and thus constitutes reversible error. State v. Ratliff, 121 Wn. App. 642, 646, 90 P.3d

79 (2004).

       Once the defendant raises the possibility that he was prejudiced by improper

communication between the trial court and jury, the State bears the burden to prove the error is

harmless beyond a reasonable doubt. State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120

(1997). The trial court commits harmless error when, without first notifying and seeking input

from counsel, it provides to the jury only a refusal to communicate requested information. State

v. Johnson, 56 Wn.2d 700, 709, 355 P.2d 13 (1960). A trial court’s response to a jury question

without proper notification to counsel is also harmless when the response is “negative in nature

and conveys no affirmative information.” State v. Russell, 25 Wn. App. 933, 948, 611 P.2d 1320


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No. 48941-4-II


(1980). And it is harmless error when, without first consulting counsel, the trial court instructs

jurors to refer to the instructions they have been given. Jasper, 158 Wn. App. at 543.

                                      B. HARMLESS ERROR

       Shenaurlt argues that the trial court’s error was prejudicial and grounds for a new trial1

because the jury’s question concerned a central issue of intent and Shenaurlt should have had the

opportunity to request a more detailed and substantive response to the jury, which in turn may have

impacted the jury’s verdict. The State argues that the error was harmless because the trial court’s

response to the jury question was neutral, contained no information, and thus was harmless beyond

a reasonable doubt. We agree with the State.

       In Johnson, the Supreme Court found that the trial court committed harmless error when,

without notifying or consulting counsel, it responded to the jury’s question by saying, “‘I regret

that I am not allowed to comment on the evidence in any way. This precludes me from giving you

this information.” 56 Wn.2d at 709. On appeal, the trial court’s action was held to be harmless

error because the note contained no information that could potentially harm the defendant and was

a mere refusal to provide any information. Johnson, 56 Wn.2d at 709. Similarly, in Jasper, the

trial court, without notifying or consulting counsel, responded to two questions submitted by the

jury during deliberations, saying, “‘Please re-read your instructions and continue deliberating. No

further instructions will be given to this question.’” 158 Wn. App. at 525-26. This error was held




1
  Shenaurlt frames the issue by asserting the error is grounds for a new trial. Shenaurlt failed to
challenge the trial court’s denial of his motion for a new trial, so we do not review it. See RAP
2.5(a). Instead, we determine whether the trial court’s failure to notify and consult counsel before
responding to the jury constitutes reversible error. See Ratliff, 121 Wn. App. at 645-46.

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No. 48941-4-II


to be harmless because referring the jury to their instructions was neutral and provided no

erroneous or harmful information. Jasper, 158 Wn. App. at 543.

       In the present case, the trial court’s error was analogous to the harmless errors of the trial

courts in Johnson and Jasper. Here, as in Johnson, the trial court’s note contained no information

that could possibly harm the defendant. And like the trial court in Jasper, the trial court here

merely directed the jury to use the instructions they had already been given.

       Shenaurlt is correct that the trial court could have consulted counsel and issued a

supplemental instruction in response to the jury’s question.2 However, it was within the trial

court’s discretion to determine whether to give further instructions. CrR 6.15(f)(1); State v.

Langdon, 42 Wn. App. 715, 718, 713 P.2d 120 (1986). While Shenaurlt would have preferred that

the trial court provide the jury with a supplemental instruction, the judge had no duty to answer

the jury’s question. Even if the jury was confused about the instruction regarding the definition of

intent, this instruction is not challenged on appeal and was not challenged below. Therefore, the

issue of that instruction’s adequacy is not before us. RAP 2.5(a), 10.3(g).

       The trial court’s response was neutral, conveyed no information, and referred the jurors to

the instructions. So the trial court’s failure to notify and consult the parties did not prejudice

Shenaurlt, and the trial court’s error was harmless.




2
  Shenaurlt asserts that the trial court’s error is grounds for a new trial because it denied him the
opportunity to obtain a supplemental instruction, and this lack of supplemental instruction is the
source of prejudice. In response, the State argues at length that the jury instructions were sufficient
as written and that the trial court correctly responded to the jury by directing them to refer to the
instructions they had been given. We need not address arguments about the sufficiency of the
instructions because Shenaurlt did not assign error to the jury instructions or challenge the
sufficiency of the instructions on appeal. Instead, we focus on whether the trial court’s action—
communicating with the jury without consulting counsel—was harmful to the defendant.
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No. 48941-4-II


                                II. SUFFICIENCY OF THE EVIDENCE

       Shenaurlt asserts that the State submitted insufficient evidence to support the “intent”

element of assault. The State disagrees. We agree with the State.

                                          A. RULES OF LAW

       When reviewing sufficiency of the evidence, we ask whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found that the

State proved the crime’s essential elements beyond a reasonable doubt. State v. Sweany, 174

Wn.2d 909, 914, 281 P.3d 305 (2012). We assume all of the State’s evidence and any reasonable

inferences from it are true, and all reasonable inferences from the evidence must be drawn in the

State’s favor and interpreted most strongly against the defendant. State v. Homan, 181 Wn.2d 102,

106, 330 P.3d 182 (2014).

       We defer to the trier of fact, which resolves conflicting testimony and generally weighs the

persuasiveness of the evidence. State v. Martinez, 123 Wn. App. 841, 845, 99 P.3d 418 (2004).

The jury’s credibility determinations are not subject to review. State v. Mines, 163 Wn.2d 387,

391, 179 P.3d 835 (2008).

       To prove third degree assault, the State must show that the defendant committed an

intentional touching or striking of a law enforcement official. RCW 9A.36.031(1)(g); State v.

Jarvis, 160 Wn. App. 111, 119, 246 P.3d 1280 (2011) (defining “assault” as “‘an intentional

touching or striking of another person that is harmful or offensive, regardless of whether it results

in physical injury’”) (quoting State v. Tyler, 138 Wn. App. 120, 130, 155 P.3d 1002 (2007)). The

touching or striking of an officer is intentional when the person acts with the objective or purpose




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No. 48941-4-II


to strike or hit the officer. State v. Brown, 94 Wn. App. 327, 335, 972 P.2d 112 (1999), aff’d, 140

Wn.2d 456, 998 P.2d 321 (2000); RCW 9A.08.010(1)(a).

                        B. SUFFICIENT EVIDENCE SUPPORTS THE CONVICTIONS

       Shenaurlt argues that sufficient evidence does not support the jury’s verdict because his

mental health issues made it impossible for him to manifest the requisite intent to commit assault.

To support this claim, he points to evidence that he exhibited mental health issues, including

claiming he was Jesus Christ and exhibiting a lack of self-awareness and mental coherence. The

State responds that the jury could rationally determine that, even if some of the defendant’s actions

seemed bizarre, he nevertheless acted purposefully and with objective to strike the officers. We

agree with the State.

       Before Shenaurlt’s arrest, when he was told that there was a noise ordinance, he began to

whisper, demonstrating his ability to respond to his surroundings and comply with instructions.

Shenaurlt also indicated that he understood he would be arrested if he continued to yell.

       After the officers decided to arrest him, Shenaurlt balled his left hand into a fist before

striking Officer Spangler. Based on Spangler’s experience, he saw this as a striking/preattack

indicator. It can be inferred from Shenaurlt’s actions that he was acting with the purpose to strike

Officer Spangler when Shenaurlt struck Officer Spangler in the face and jaw with his elbow.

       Evidence also supports a finding that Shenaurlt acted intentionally when he looked directly

at Officer Waubanascum, kicked Waubanascum in the knee, and then fled. Officers Spangler and

Waubanascum testified that the elbowing and the kick appeared to be deployed on purpose.




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No. 48941-4-II


Shenaurlt appeared motivated to prevent the officers from detaining him, as immediately after

elbowing Officer Spangler and kicking Officer Waubanascum, he fled, looking behind himself.

When Shenaurlt was chased by Officer Waubanascum, Shenaurlt threw a bicycle at Officer

Waubanascum, striking him in the leg. Shenaurlt’s repeated flight, assumption of a fighting stance,

and aggressive conduct during the officers’ attempts to subdue him demonstrate that he was acting

with the objective to assault the officers to support his escape attempt.

       Shenaurlt claims that “[h]is apparent assaults were clearly an involuntary result of this lack

of self-awareness and mental coherence.” Br. of Appellant at 9. However, it is the jury that weighs

the evidence and determines the credibility of witnesses. Martinez, 123 Wn. App. at 845. The

existence of some evidence supporting Shenaurlt’s position does not establish that the evidence is

insufficient to support the jury’s finding that he intentionally assaulted the officers.

       Viewing the evidence in the light most favorable to the State, as we must, a rational jury

could find that the State proved beyond a reasonable doubt that Shenaurlt acted with the objective

or purpose to strike the officers in a harmful or offensive manner, thus manifesting the necessary

intent to commit third degree assault.




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No. 48941-4-II


        We affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    JOHANSON, J.
 We concur:



 WORSWICK, J.




 BJORGEN, C.J.




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