State v. Toscano

271 P.3d 912, 166 Wash. App. 546
CourtCourt of Appeals of Washington
DecidedFebruary 7, 2012
DocketNo. 29474-9-III
StatusPublished
Cited by10 cases

This text of 271 P.3d 912 (State v. Toscano) 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. Toscano, 271 P.3d 912, 166 Wash. App. 546 (Wash. Ct. App. 2012).

Opinions

Sweeney, J.

¶1 This appeal follows convictions for intimidating a public seivant, two counts of second degree assault, and attempting to elude a pursuing police vehicle. The defendant used her car to block, or attempt to block, a [549]*549car driven by a sheriff’s deputy who was pursuing her nephew. We conclude based on our reading of Supreme Court authority that the facts here do not support the conviction for intimidating a public servant but do support the convictions for the two counts of second degree assault. We therefore reverse the conviction for intimidating a public servant and affirm the convictions for the two counts of assault. The defendant did not appeal the attempting to elude conviction.

FACTS

¶2 This prosecution follows two near collisions between Grant County Deputy Sheriff Tyson Voss and Linda Kay Toscano in Warden, Washington, in the early morning of March 30, 2009. Deputy Voss saw Michael Castoreño commit a traffic infraction, and he turned on his emergency lights to stop him. Mr. Castoreño is Ms. Toscano’s nephew. Mr. Castoreño did not stop and Deputy Voss gave chase. Ms. Toscano backed her car out of a driveway at 912 Adams Street in Warden. Deputy Voss drove south and Ms. Toscano drove north on the same street. Ms. Toscano drove left toward the middle of the street and toward Deputy Voss; she refused to yield the right of way to him. Deputy Voss has special training in emergency vehicle operation, including “evasive maneuvers and high speed patterns.” Report of Proceedings (RP) at 45. He took evasive action to avoid colliding with Ms. Toscano. He had a couple seconds to react on the gravel road.

¶3 Deputy Voss encountered Ms. Toscano again. Mr. Castoreño turned right to another street. Ms. Toscano then “darted” into the intersection to block the intersection and directed her high beams at Deputy Voss, which made it difficult for him to see. Deputy Voss again changed his course to avoid colliding with Ms. Toscano. Corporal Gary Mansford saw Ms. Toscano’s car pull into the intersection “like it was going to hit” Deputy Voss, and he saw Deputy [550]*550Voss swerve to avoid her. RP at 173. Mr. Castoreño pulled into the driveway of 912 Adams Street, got out of the car, and ran. Ms. Toscano pulled up to 912 Adams Street soon after. Deputy Voss arrested Mr. Castoreño and Ms. Toscano. Ms. Toscano reported that she was looking for a missing dog.

¶4 The State charged Ms. Toscano with intimidating a public servant, second degree malicious mischief (for an incident that occurred after the pursuit), attempting to elude a pursuing police vehicle, and two counts of second degree assault — one for each encounter with Deputy Voss during the pursuit.

¶5 The court instructed the jury on the elements of intimidating a public servant and defined the relevant terms for the jury. A jury found her guilty of each charge except for the malicious mischief.

DISCUSSION

¶6 Ms. Toscano appeals and challenges both of her second degree assault convictions and the intimidating a public servant conviction.

Sufficient Evidence — Second Degree Assault Charge

¶7 Ms. Toscano first contends that the State failed to prove either second degree assault because it did not prove that Ms. Toscano had a specific intent to cause apprehension or that Deputy Voss had apprehension of fear of future bodily injury. She argues that simply being “in the way” of Deputy Voss is not enough to show that she intended to cause him apprehension and, moreover, Deputy Voss had fear only in hindsight.

¶8 We review to determine whether substantial evidence supports the jury’s verdict. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000).

¶9 “Second degree assault” means to “assault [ ] another with a deadly weapon.” RCW 9A.36.021(1)(c). Com[551]*551mon law, not the criminal code, supplies several definitions of “assault.” State v. Wilson, 125 Wn.2d 212, 217-18, 883 P.2d 320 (1994). One of these definitions is “ ‘putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm.’ ” Id. at 218 (quoting State v. Bland, 71 Wn. App. 345, 353, 860 P.2d 1046 (1993)). This is the definition of “assault” at issue here.

¶10 Assault requires specific intent to create the apprehension of harm. State v. Krup, 36 Wn. App. 454, 458, 676 P.2d 507 (1984). We conclude that a jury could have inferred the necessary intent from the State’s showing here. Ms. Toscano first turned her car into the middle of a gravel road, toward Deputy Voss’s patrol car, and refused to yield. Ms. Toscano then “darted” into the intersection with her high beams on “like she was going to hit” Deputy Voss. RP at 60, 173. The jury could have inferred that she drove in this manner because it was likely to cause a crash and would certainly make Deputy Voss afraid of crashing.

¶11 Ms. Toscano relies on Bland to argue that the evidence was insufficient to prove that Deputy Voss feared harm. 71 Wn. App. at 348-49. In Bland, the defendant shot at a moving car and a stray bullet went through the living room window of Mr. Carrington, who was asleep in a recliner. The bullet missed his head by inches. Id. Mr. Carrington was “shocked and startled,” but only after the incident, when he realized how close the bullet came to his head. Id. at 349. The court held that Mr. Bland’s conviction for second degree assault of Mr. Carrington could not stand because apprehension of harm was an element. “Apprehension” means “worry and fear about the future', a presentiment of danger.” Id. at 356 (citing Webster’s Third New International Dictionary 106 (1976)). Mr. Carrington was incapable of worrying about or being afraid of any imminent danger because he was asleep when the bullet entered his window. Id. at 355.

¶12 Ms. Toscano argues that Deputy Voss, like Mr. Carrington, did not apprehend harm. Specifically, Ms. [552]*552Toscano argues that he did not apprehend harm in the first encounter because Deputy Voss did not believe Ms. Toscano intentionally blocked him until after the second incident. Br. of Appellant at 11. Ms. Toscano suggests that this is analogous to the facts in Bland where Mr. Carrington did not realize the danger until after the danger had passed. The facts in Bland, however, are distinguishable. Deputy Voss was not asleep, unaware of the defendants’ actions, and incapable of fearing the consequences of those actions.

¶13 Ms. Toscano also argues that her driving could not evoke the necessary fear because Deputy Voss was a seasoned police officer with special training in high speed evasive maneuvers. Br. of Appellant at 15. Here there is evidence that Deputy Voss had apprehension of harm despite his experience as a police officer. In both encounters, he had to avoid collisions. The jury could have easily inferred from Deputy Voss’s actions that he was afraid of crashing into Ms. Toscano’s car. We will defer to the jury on the persuasiveness of the evidence here. State v. Walton, 64 Wn. App.

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Bluebook (online)
271 P.3d 912, 166 Wash. App. 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-toscano-washctapp-2012.