State Of Washington, Respondent V. K.m., Appellant (Majority)
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FILED r OUR TI'. OF APPEALS ISIC rr 2013 Iz0V 13 APB I1: Ia ST l ' A H1N11G V EFU Y IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II I No. 43368 -1 - II I STATE OF WASHINGTON, UNPUBLISHED OPINION Respondent, V. K.M., JOHANSON, J. KM appeals his juvenile adjudication for custodial assault. He argues that ( 1) admission of improper opinion testimony of guilt invaded the fact finder' s province and 2) the heightened common law self defense standard for custodial assault violates the separation of powers consider doctrine. inadmissible Because ( 1) evidence, ( this was a bench trial and we presume the court does not 2) any admission of the opinion of guilt testimony was harmless, and ( 3) any potential error in applying the heightened self defense standard was also harmless, we affirm. FACTS I. THE ASSAULT On February 26, 2012, Juvenile Detention Officer Bradley Sean Kilmer escorted 14 -yearold KM from the Mason County Juvenile Detention Facility to the hospital to evaluate a broken iN No. 43368 -1 - II On their way out of the detention center, KM yelled back when a group of juveniles in the nose.' parking lot yelled at him; Officer Kilmer told KM that he could not speak to people while being transported. KM had been advised of this restriction before leaving the detention facility. Despite Officer Kilmer' s admonition, KM spoke to another juvenile while at the hospital. When they reentered the detention center and were standing in a small entry area between two secured doors, Officer Kilmer he had failed to follow the at by KM that " he speaking to was dropped to people outside the a ` level one "' 2 because facility. Clerk' s Papers ( CP) At this time, KM, who was wearing waist chains and leg irons, was standing in front of 19. and rules advised to the right of Officer Kilmer. fists, aggressively " KM' s) got KM turned, swore at Officer Kilmer, doubled up both of his in Officer Kilmer' s face," angrily " slammed his chest into Officer Kilmer," and pushed the officer into the wall. CP at 19; Verbatim Report of Proceedings. VRP) at 5, 8, 22, 24. Officer Kilmer attempted to restrain KM by grabbing KM' s hair, but he lost his grip and his arm moved down to KM' s neck/ shoulder area. As KM struggled, Officer Kilmer managed to push KM into the wall, but Officer Kilmer' s left hand became entangled in KM' s restraints. Officer Mike Arnold came to Officer Kilmer' s assistance, restrained KM and released Officer Kilmer' s entangled hand. T] hat fat fuck dropped When the officers returned KM to his cell, KM told Officer Arnold, me, "' referring to Officer Kilmer' s dropping KM' s security level. CP Most of the facts are drawn from the juvenile court' s unchallenged findings of fact, which are verities on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P. 2d 313 ( 1994). 2 The facility had four security levels. At level one, the detainee must spend 23 hours a day in his cell. 2 No. 43368 -1 - II at 20. KM threatening also made other comments directed to Officer Kilmer. Officer Kilmer suffered a sprained wrist and torn ligaments. II. JUVENILE COURT BENCH TRIAL The State charged KM with custodial assault occurring in a juvenile facility.3 The case proceeded to a bench trial in a juvenile court. During trial, the State asked Officer Kilmer whether KM was " in actual imminent danger of serious injury at any time responded that KM was not. prior to the scuffle you described ?" VRP at 10. Officer Kilmer KM did not object to the State' s question or to Officer Kilmer' s response. Officer Christina Torre also testified for the State. She had observed a large portion of the physical alteration on the monitors in the control room as she was opening the doors to admit KM and Officer Kilmer into the monitor until after facility. But she had turned away and was not looking at the KM began shouting obscenities at Officer Kilmer. When she looked back to the monitor, she saw Officer Kilmer pushing KM against the wall and then saw KM " push off the wall and start pulling away from Officer Kilmer." VRP at 33. She also saw KM and Officer Kilmer struggle and observed that at one point Officer Kilmer' s arms were around KM' s neck, in the " head and neck area." VRP at 33. KM managed to break Officer Kilmer' s grip and then proceeded to push his body into Officer Kilmer and get close to his face and proceed to yell" more obscenities at the officer. VRP at 33 -34. She observed Officer Kilmer " proceed to try to 3 RCW 9A.36. 100( 1)( a). 3 No. 43368 -1 - II gain control of [ KM] by taking his head control of and neck area." VRP at 34. At this point, Officer Arnold arrived, and the two officers were able to restrain KM. Officer Arnold also testified that he became aware of the altercation when he heard KM start swearing at Officer Kilmer. When Officer Arnold arrived, he saw Officer Kilmer struggling with KM; Officer Kilmer' s left shoulder was against the wall and his left arm was " around KM' s] upper body, neck area, and [ KM] was struggling back and forth and got right up in Officer Kilmer' s] face" and swore at Officer Kilmer. VRP at 54. When he went to Officer Kilmer' s assistance, Officer Arnold noticed that Officer Kilmer' s hand was stuck in KM' s restraints. and KM. Officer Arnold helped release Officer Kilmer' s hand and separated Officer Kilmer this During testimony, the State asked Officer Arnold, " From where you were standing during this incident, was [ KM] in imminent danger of serious injury prior to the confrontation between him relevancy and Mr. Kilmer ?" VRP grounds. Officer Arnold KM testified in his defense. at The juvenile court overruled KM' s objection on 56. responded, " I would say no." VRP at 56. Although he admitted that he turned his head and swore at Officer Kilmer when the officer told him ( KM) that he was dropping his security status, KM denied touching Officer Kilmer first. Instead, KM asserted that Officer Kilmer had initiated the physical contact by placing his arm across KM' s face, including the bridge of his broken nose, and that Officer Kilmer' s arm slipped down to his neck area when KM lifted his head to avoid contact with his nose. KM stated ' that Officer Kilmer' s hold was choking him and that he repeatedly told the officer to stop choking him. KM further testified that when Officer Kilmer' s arm went across the bridge of pain as a six on a scale of his nose, he felt one to ten. VRP at a " stinging feeling in [ his] nose," and he rated the 83. KM stated that before this, his pain level was a M No. 43368 -1 - II VRP three. was " 84. at And he asserted that the only time he intentionally touched Officer Kilmer defense, because [ the officer] contacted [ him] first" and touched him in " a hurtful in self[- ] manner." VRP at 85. The juvenile court found that the evidence established an assault and concluded that s] elf-defense does not apply because the respondent initiated contact and because the respondent took an aggressive stance against a Detention Officer in a juvenile detention facility[; t] he respondent was not in imminent danger under the law." CP at 20 ( emphasis added). KM appeals. ANALYSIS I. OPINION OF GUILT TESTIMONY KM first argues that Officers Kilmer and Arnold' s4 testimonies about whether KM was in actual imminent danger of serious injury was improper opinion of guilt testimony that invaded the fact finder' s province and denied him his Fourteenth Amendment due process rights. Even presuming, but not deciding that this is manifest constitutional error that we may address despite KM' s failure to 4 KM 5 object, this incorrectly identifies Appellant at 6. argument fails. Officer Torre 6 as the officer involved in this testimony. See Br. of But the record clearly shows that the relevant testimony was Officer Arnold' s testimony, not Officer Torre' s. VRP at 56. See RAP 2. 5( a). 6 KM also argues that if we refuse to address this alleged error because it was not preserved for review, his trial counsel provided ineffective assistance in failing to object to this testimony. Because we address this issue directly, we do not address KM' s related ineffective assistance of counsel claim. 5 No. 43368 -1 - II Because this inadmissible was evidence 2002) ( citing State a bench trial, we presume in reaching its verdict. the juvenile court did not consider State v. Read, 147 Wn.2d 238, 244, 53 P. 3d 26 Miles, 77 Wn.2d 593, 464 P. 2d 723 ( 1970)). v. KM could rebut this presumption by showing that there is insufficient admissible evidence to support the verdict or that " the trial court relied on the inadmissible evidence to make essential findings that it otherwise would not have Read, 147 Wn.2d made." at 245 -46. But KM does not argue that the admissible evidence is insufficient to support the verdict; nor does the record show that is the case. And the juvenile court' s findings of fact or conclusions of law do not suggest that the juvenile court that considered self[- ]defense that KM was the did these testimonies. not first Furthermore, because the juvenile court concluded apply because KM " initiated 7 aggressor, the contact," testimony which CP at 20, or, in other words, related solely to KM' s self defense was irrelevant to the juvenile court' s guilty finding and any error is therefore harmless claim beyond a reasonable doubt.8 See State denied, 163 Wn.2d 1008 ( 2008). 7 See State v. Riley, 137 v. We, 138 Wn. App. 716, 158 P. 3d 1238 ( 2007), review Accordingly, this argument fails. Wn.2d 904, 909, 976 P. 2d 624 ( 1999) ( "[ I] n general, the right of self[ - defense cannot be successfully invoked by an aggressor or one who provokes an altercation. ") 8 To find an error harmless beyond a reasonable doubt, from the record, an appellate court must find that the alleged error did not contribute to the verdict. State v. Brown, 147 Wn.2d 330, 344, 58 P. 3d 889 ( 2002). 2 No. 43368 -1 - II II. HEIGHTENED SELF- DEFENSE STANDARD KM next argues that the judicially- created, actual danger /serious injury self defense standard that applies in cases involving custodial assault violates the separation of powers doctrine because the legislatively- created statutory defense in RCW 9A. 16. 020 does not include this heightened self defense standard. This argument also fails. - As discussed above, the juvenile court did not rely exclusively on its conclusion that KM' defense claim s self - aggressor and, failed. Instead, the juvenile court also concluded that KM was the first therefore, not entitled to defense. assert self - Accordingly, even if the heightened self defense standard for custodial assault is invalid because it violates the separation of powers doctrine, any potential error was clearly harmless under the constitutional harmless error standard. State v. Brown, 147 Wn.2d 330, 344, 58 P. 3d 889 ( 2002). 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. 0 Johanson, 7
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