                                                                FILED
                                                           FEBRUARY 20, 2018
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )         No. 35039-8-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
JONATHAN M. NORRIS,                           )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, J. — Jonathan Norris was convicted of third degree assault

after swinging at a law enforcement officer during his arrest in a grocery store parking lot.

Norris argues that he was improperly sentenced for the completed crime of third degree

assault rather than the attempted crime. We reject his claim and affirm.

                                          FACTS

       Jonathan Norris was outside the Fred Meyer store in Spokane Valley early one

morning yelling and cursing at employees arriving for work. When told to leave by the

assistant manager, Norris cursed in response, stating that he did not have to leave.

Deputy Nathan Booth arrived on the scene, identified himself to Norris, and Norris
No. 35039-8-III
State v. Norris


responded that he would have to be taken out in cuffs. Norris, who had a drink in his

dominant hand, swung at Deputy Booth with his other hand, but failed to connect.

                                               PROCEDURE

          The State charged Norris with third degree assault, a class C felony. The charge

cited RCW 9A.36.031(1)(g), which provides in part:

          A person is guilty of assault in the third degree if he or she, under
          circumstances not amounting to assault in the first or second degree:
                 ....
                 (g) 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 . . . .

          At trial, the court instructed the jury:

                                          Instruction No. 9

                An assault is an act done with intent to inflict bodily injury upon
          another, tending but failing to accomplish it and accompanied with the
          apparent present ability to inflict the bodily injury if not prevented. It is not
          necessary that bodily injury be inflicted.

Clerk’s Papers (CP) at 42. This instruction mirrors 11 Washington Practice: Washington

Pattern Jury Instructions: Criminal (WPIC) 35.50, at 581 (4th ed. 2016). In the “Note on

Use,” the pattern instruction states to use this particular definition “in cases involving an

attempt to inflict bodily injury but not resulting in a battery.” WPIC 35.50, Note on Use

at 581.


                                                     2
No. 35039-8-III
State v. Norris


                                          ANALYSIS

       Norris argues that the State chose to proceed with the third degree assault charge

based on “attempted battery.” Appellant’s Br. at 4. Elsewhere he asserts

that an “attempted battery is an attempted assault.” Appellant’s Br. at 6. Citing

RCW 9A.28.020(3)(d), he argues that an attempted class C felony is reduced to a gross

misdemeanor. Under this theory, he requests to be resentenced. We reject Norris’s

argument.

       Because Washington lacks a statutory definition of assault, courts turn to the

common law definition. State v. Villanueva-Gonzalez, 180 Wn.2d 975, 982, 329 P.3d 78

(2014). Washington recognizes three forms of assault: (1) assault by actual battery,

(2) assault by attempting to inflict bodily injury on another while having apparent present

ability to inflict such injury, and (3) assault by placing the victim in reasonable

apprehension of bodily harm. State v. Byrd, 125 Wn.2d 707, 712-13, 887 P.2d 396

(1995). The present case rests on a theory of the second definition, that Norris attempted

to inflict bodily injury on Deputy Booth by swinging at him, and Norris had the apparent

present ability to inflict such injury.




                                              3
No. 35039-8-III
State v. Norris


      Here, the State charged and the jury was instructed on assault, not attempted

battery. Norris did not commit "an attempted battery" or "an attempted assault." He

committed an actual assault. RCW 9A.28.020(3)(d) has no application here.

      Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                          Lawrence-Berrey, J.
                                                                             j
WE CONCUR:




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