State v. Nicholson

84 P.3d 877
CourtCourt of Appeals of Washington
DecidedJanuary 13, 2004
Docket50241-7-I
StatusPublished
Cited by1 cases

This text of 84 P.3d 877 (State v. Nicholson) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Nicholson, 84 P.3d 877 (Wash. Ct. App. 2004).

Opinion

84 P.3d 877 (2003)
119 Wash.App. 855

STATE of Washington, Respondent,
v.
Dereck Anthony NICHOLSON, II, Appellant.

No. 50241-7-I.

Court of Appeals of Washington, Division 1.

November 24, 2003.
Publication Ordered January 13, 2004.

*878 Cheryl Aza, Washington Appellate Project, Seattle, WA, for Appellant.

Dennis John McCurdy, Julie Anne Kays, King Co. Pros Office, Seattle, WA, for Respondent.

APPELWICK, J.

Dereck Anthony Nicholson was convicted of one count of assault of a child in the second degree and one count of imprisonment-domestic violence. He appeals his conviction for second degree assault of a child with a deadly weapon on the grounds that there was insufficient evidence to prove the elements of common law assault, and that the jury was improperly instructed on the elements of common law assault. We reverse his conviction for second degree assault of a child with a deadly weapon and remand for a new trial.

FACTS

The factual record is based on testimony by Officer Vittorio Mangione and Officer Molly McBride, of the Bellevue Police Department, both of whom responded to the 911 call at the Nicholson residence. Neither Joan Nicholson (Joan), the mother of T.N., the 20-month-old victim in this assault case, nor Dereck Nicholson (Nicholson), testified at trial.

Shortly after Joan and Nicholson began arguing on October 3, 2001, their 20-month-old son, T.N., began crying. The couple's argument escalated after Nicholson screamed, "Shut up, you fucking baby." Joan told Nicholson not to speak to the baby that way. Nicholson then blocked Joan's repeated attempts to leave the house. When Joan put T.N. down to call 911, Nicholson grabbed T.N., got a knife from the kitchen and walked with the child to the family room. While Joan was on the phone calling 911, Nicholson said to her, "Look what I have," at which point she witnessed Nicholson holding T.N. under the armpits and placing the knife blade close to T.N.'s bare stomach.

It is unclear how many times Joan dialed 911, but it is clear that the dispatcher recorded multiple phone calls. On the 911 tape, a female voice identified as Joan's can be heard crying and yelling, "Put the knife down," and "Give me back my baby." T.N. is not heard crying on the 911 tape until after Nicholson put him down and began talking to the 911 dispatcher.

The 911 dispatcher sent police officers to the Nicholson residence. As Officer Mangione approached the Nicholson residence, while still in his car he heard a female screaming from inside the Nicholson house, "Put my son down, he's got a knife." Very shortly after parking his car, Officer Mangione observed Joan running out of the house towards him. She was hysterically yelling and crying, stating that her husband had their son in his arms and was holding a knife to his belly. Officer Mangione described Joan's demeanor as hysterical. He then walked into the house, where he saw Nicholson sitting "calm[ly]" on the couch, without a knife, holding T.N. T.N. was "crying and screaming." Officer Mangione described him as "very, very upset." The knife blade was later found in the kitchen sink and preserved as evidence. Officer Mangione testified that the knife blade was about 7- or 8-inches long.

Officer McBride, who had also responded to the call, described Joan as "hysterical" and crying so hard that it was difficult to understand what she was trying to say. She testified that Joan was distraught and it was therefore difficult to get information from her for the police report.

Nicholson was charged with one count of assault of a child in the second degree and one count of imprisonment-domestic violence. T.N. was the only victim listed in the charging papers.

At trial, the defense counsel made a half-time motion to dismiss the second degree assault of a child charge on the grounds that there was insufficient evidence for a reasonable juror to find Nicholson guilty of the crime. His objection rested in part on the theory apparent in the prosecutor's closing argument that assault could be found if Joan, a third party who was not listed as the victim in the charging papers, was placed in fear and apprehension, in lieu of T.N. being placed in fear and apprehension. The court *879 denied the defense counsel's motion to dismiss and agreed with the prosecutor that the fear and apprehension element of common law assault was met if Joan, as T.N.'s mother, suffered fear and apprehension. In his closing argument, the prosecutor argued that Nicholson's conduct had "creat[ed] [in her], Joan Nicholson, th[at] reasonable apprehension and ... fear of bodily injury."

The trial court instructed the jury on all three definitions of assault used in the state of Washington. The jury instructions did not include an instruction stating that for the fear and apprehension element of common law assault to be met, they would need to find that T.N., not Joan, was fearful and apprehensive of bodily injury. The jury returned a verdict form finding Nicholson guilty of one count of assault of a child in the second degree with a deadly weapon enhancement and one count of imprisonment-domestic violence. He appeals.

ANALYSIS

I. Standard of Review

"`The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. A claim of sufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' "State v. Romero, 113 Wash.App. 779, 797, 54 P.3d 1255 (2002) (quoting State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992)).

Questions of law are reviewed de novo. Rivett v. City of Tacoma, 123 Wash.2d 573, 578, 870 P.2d 299 (1994).

II. Conviction for Second Degree Assault of a Child

Nicholson asserts that his conviction for second degree assault of a child must be reversed because the prosecutor's closing argument and instructions to the jury led the jury to believe that the apprehension and fear element of common law assault was met if they found that Nicholson had caused the victim's mother, Joan, fear and apprehension.

The due process clause of the United States and Washington State Constitutions require proof beyond a reasonable doubt "`of every fact necessary to constitute the crime with which he is charged.'" State v. Byrd, 72 Wash.App. 774, 782, 868 P.2d 158 (1994) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)).

In Washington, an individual commits second degree assault when "he or she, under circumstances not amounting to assault in the first degree ... [a]ssaults another with a deadly weapon." RCW 9A.36.021. A person commits second degree assault of a child when he or she is over 18 years of age and commits the crime against a child under the age of 13 as defined in RCW 9A.36.021

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107 P.3d 141 (Court of Appeals of Washington, 2005)

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Bluebook (online)
84 P.3d 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nicholson-washctapp-2004.