State v. Tunney

129 Wash. 2d 336
CourtWashington Supreme Court
DecidedMay 30, 1996
DocketNo. 63116-6
StatusPublished
Cited by36 cases

This text of 129 Wash. 2d 336 (State v. Tunney) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tunney, 129 Wash. 2d 336 (Wash. 1996).

Opinions

Johnson, J.

— Barry M. Tunney was convicted of third degree assault of a police officer in King County. He challenges the sufficiency of the information for the first time on appeal, arguing it was defective because the Prosecutor omitted the necessary common law element that Mr. Tunney knew his victim was a police officer performing his official duties. The Court of Appeals affirmed the conviction, State v. Tunney, 77 Wn. App. 929, 895 P.2d 13 (1995), and we granted review. We hold the element that Mr. Tunney [338]*338knew the victim was a police officer can be fairly implied from the information, and Mr. Tunney was not prejudiced by the failure of the Prosecutor to plainly state the knowledge element. We affirm.

While in uniform and on foot patrol in the Pike Place Market area of Seattle, Officers Shelton and Williams observed Mr. Tunney yell at a woman and shove her into a wall. They approached Mr. Tunney, who had a bottle of wine in hand, and Officer Shelton requested his identification. When Mr. Tunney reached for his identification, Officer Shelton observed what turned out to be an ice pick in the inside pocket of his jacket. Officer Shelton grabbed Mr. Tunney’s arm to prevent him from reaching the ice pick. Mr. Tunney punched Officer Shelton in the arm in response, and a struggle ensued during which Mr. Tunney struck Officer Shelton in the face. Mr. Tunney managed to break away from the officers but was apprehended moments later.

The King County Prosecuting Attorney charged Mr. Tunney with assault in the third degree, RCW 9A.36.031(1)(g).1 The charge stated:

That the defendant BARRY MICHAEL TUNNEY in King County, Washington on or about October 2, 1992, did assault Officer David Shelton of the Seattle Police Department, a law enforcement officer who was performing official duties at the time of the assault;
Contrary to RCW 9A.36.031(l)(g), and against the peace and dignity of the State of Washington.

Clerk’s Papers at 15. In addition to the statutory elements of RCW 9A.36.031(l)(g), the Court of Appeals has held that knowledge the victim is a police officer performing [339]*339his or her official duties is an essential element of the crime. State v. Allen, 67 Wn. App. 824, 827, 840 P.2d 905 (1992). The Prosecutor omitted knowledge of the victim’s status from the charge.

Mr. Tunney was convicted and sentenced to 22 months’ confinement. His only defense at trial was the stop was unlawful. He has raised the sufficiency of the information for the first time on appeal.

The issue of whether knowledge the victim is a police officer is an essential element of the crime is not before us. RAP 13.7(b).2 Assuming knowledge the victim is a police officer is an essential element of the crime, the issue is whether the information is constitutionally defective because that element was omitted.

The Sixth Amendment3 and Const. art. I, § 22 (amend. 10)4 require inclusion in the charging document of the essential elements, statutory and otherwise, of the crime charged so as to apprise the defendant of the charges against him and to allow him to prepare his defense. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991); State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992) . In Kjorsvik we abandoned the traditional analysis applied under Const, art. I, § 22 (amend. 10) and adopted [340]*340an analysis consistent with the federal standard of review for sufficiency of information challenges raised for the first time on appeal. That analysis requires us to determine whether the information is sufficient by asking: (1) do the necessary elements appear in any form, or by fair construction can they be found, in the information; and, if so, (2) can the defendant show he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice. Kjorsvik, 117 Wn.2d at 105-06. The first prong requires at least some language in the information giving notice of the missing element. Kjorsvik, 117 Wn.2d at 106.

We have applied the "fair construction” rule in two recent cases. In Hopper, the information charged second degree assault but omitted the statutory element of "knowingly.” Hopper, 118 Wn.2d at 154. The information read in part:

That the defendant... on or about June 30, 1988 did assault Officer D. Shelton, a human being, with a deadly [sic] weapon, and other instrument or thing likely to produce bodily harm, to-wit: a flashlight; . . .

Hopper, 118 Wn.2d at 154. We held "knowingly” could be fairly implied from the word "assault” because "assault” contains within it the concept of knowing conduct when construed liberally. Hopper, 118 Wn.2d at 159. Similarly, in Kjorsvik, we held the nonstatutory intent to steal element of first degree robbery could be fairly implied from the allegation that the defendant "unlawfully, with force, and against the baker’s will, took the money while armed with a deadly weapon.” Kjorsvik, 117 Wn.2d at 110. In contrast, the strict construction rule requires dismissal of the charge if any statutory or nonstatutory element of the crime is omitted from the charge. See State v. Holt, 104 Wn.2d 315, 320, 704 P.2d 1189 (1985); see also State v. Leach, 113 Wn.2d 679, 686-90, 782 P.2d 552 (1989).

In this case, the information omitted the element that Mr. Tunney knew the victim was a police officer. We [341]*341agree with the Court of Appeals that the information was nonetheless sufficient under the liberal construction rule because knowledge of the victim’s status can be fairly-implied from the information. An information that alleges assault can be fairly construed as also alleging the mental element of intent or knowledge. Hopper, 118 Wn.2d at 158-59. When the crime is defined by an act and result, as in this case, the mental element relates to the result as well as the act. Here, the mental element (knowledge) relates to both the act (assault) and the result (assault of a police officer). Moreover, the charge specifically refers to the victim’s status in three separate places and states the victim was "a law enforcement officer who was performing official duties at the time of the assault.” Clerk’s Papers at 15. It can be fairly implied from the references to the victim as a police officer and the use of the term assault that knowledge of the victim’s status is an element of the crime. Under the liberal construction, Mr. Tunney was given sufficient notice of the charge. Accord Allen, 67 Wn. App. at 829.

Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Of Washington, V. Shawn M. Casey
Court of Appeals of Washington, 2025
State Of Washington, V. John Marshall Briggs
492 P.3d 218 (Court of Appeals of Washington, 2021)
State Of Washington v. Andre Taylor
Court of Appeals of Washington, 2015
State of Washington v. Lynn Marie Arnhold
Court of Appeals of Washington, 2014
State of Washington v. Mersadeze Sidney Riojas
Court of Appeals of Washington, 2014
State v. Morgan
261 P.3d 167 (Court of Appeals of Washington, 2011)
State v. Nonog
169 Wash. 2d 220 (Washington Supreme Court, 2010)
Kasischke v. State
991 So. 2d 803 (Supreme Court of Florida, 2008)
State v. Keend
140 Wash. App. 858 (Court of Appeals of Washington, 2007)
State v. Goble
126 P.3d 821 (Court of Appeals of Washington, 2005)
State v. Mendoza-Solorio
33 P.3d 411 (Court of Appeals of Washington, 2001)
State v. Franks
105 Wash. App. 950 (Court of Appeals of Washington, 2001)
State v. Sutherland
15 P.3d 1051 (Court of Appeals of Washington, 2001)
State v. O.P.
13 P.3d 1111 (Court of Appeals of Washington, 2000)
State v. Brown
998 P.2d 321 (Washington Supreme Court, 2000)
State v. Taylor
140 Wash. 2d 229 (Washington Supreme Court, 2000)
State v. Wilson
980 P.2d 244 (Court of Appeals of Washington, 1999)
State v. Brown
972 P.2d 112 (Court of Appeals of Washington, 1999)
State v. Moavenzadeh
135 Wash. 2d 359 (Washington Supreme Court, 1998)
State v. Andree
954 P.2d 346 (Court of Appeals of Washington, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
129 Wash. 2d 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tunney-wash-1996.