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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   No. 65377-6-I
                      Respondent,
       v.                                          DIVISION ONE

RICHARD ZOLAND BOWEN,                              UNPUBLISHED OPINION

                      Appellant.                   FILED: February 6, 2012

       Leach, A.C.J.  --  Richard Z. Bowen appeals his conviction for second 

degree assault.  Bowen claims that the jury instruction defining  recklessness 

relieved the State of its burden to prove every element of this crime by creating a 

mandatory presumption.       Bowen also claims that the court lacked authority to 

impose a 24 to 48 month community custody term for second degree assault.  In 

addition, he contends that the court's assessment of a $100 domestic violence 

penalty violated his right to a jury determination of a factual issue that increased

the punishment imposed.  Finally, he objects to the court's assessment of a jury 

demand fee and criminal filing fee without proper consideration of his ability to 

pay.1

       1 As a preliminary matter, the prosecution submitted a motion to strike 
portions of the appellant's opening brief that cite a study on the effect of legal 
financial obligations on defendants.  Bowen did not present this evidence at trial,
and it is not part of the record on review.  Because the court cannot rely on 
material outside the record,  we  grant        the motion to strike.     See   State v. 
McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).  

No. 65377-6-I / 2

       We affirm the judgment and imposition of court fees and remand for 

correction of the community custody term to reflect the statutorily prescribed 

term of 18 months.

                                     Background

       In February 2010 Bowen struck his girl friend, Alison Black, on the legs 

and torso with a tree branch and a golf club multiple times over several days.  

When Black asked if she could leave the house, Bowen told her to lie on the bed 

with him, next to the wall, so that she could not leave.  Bowen then took a nap, 

but Black did not try to escape for fear of waking him.  When Bowen awoke, he 

escalated his violence, and Black eventually fled to a neighbor's house.  The 

neighbors called police.  The State charged Bowen with second degree assault 

and unlawful imprisonment.

       At trial, the   court's instructions to the       jury included the following

instructions relating to second degree assault:

                                     Instruction No. 7
           A person is reckless or acts recklessly when he or she knows of 
       and disregards a substantial risk that a wrongful act may occur and 
       the disregard of such substantial risk is a gross deviation from 
       conduct that a reasonable person would exercise in the same 
       situation.  
           Recklessness also is established if a person acts intentionally 
       or knowingly.

                                    Instruction No. 10
           To convict the defendant of the crime of Assault in the Second 
       Degree, County I [sic], each of the following elements of the crime 
       must be proved beyond a reasonable doubt:
           (1) That on or about the 5th day of February, 2010 the 
              defendant intentionally assaulted Alison Black and thereby 
              recklessly inflicted substantial bodily harm; and 
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No. 65377-6-I / 3

           (2) That this act occurred in the State of Washington.
           If you find from the evidence that each of these elements have 
       been proved beyond a reasonable doubt, then it will be your duty 
       to return a verdict of guilty; 
           On the other hand, if after weighing all of the evidence you 
       have a reasonable doubt as to either one of these elements then it 
       will be your duty to return a verdict of not guilty.

       A jury convicted Bowen of second degree assault, as well as unlawful 

imprisonment.  He received a 24 to 48 month community custody term, and the 

court assessed various legal financial obligations, including a domestic violence 

penalty, criminal filing fee, and jury demand fee.  He appeals the assault 

conviction and argues that the court erred when it assessed court fees against 

him without evidence and a finding of fact that he had the ability to pay.

                                       Analysis

Recklessness Jury Instruction

       Bowen argues for the first time on appeal that the jury instructions for

second degree assault violated due process by creating                    a mandatory 

presumption that finding he acted with the  intent to assault Alison Black 

necessarily required a finding that he recklessly inflicted substantial bodily harm.  

       Generally,  to preserve error for consideration on appeal, the party 

alleging error must call it to the trial court's attention at a time that will afford the 

court an opportunity to correct it.2        But a manifest error of constitutional 

magnitude may be challenged for the first time on appeal.3                Due process 

requires  proof beyond a reasonable doubt of every element of the crime 

       2 State v. Fagalde, 85 Wn.2d 730, 731, 539 P.2d 86 (1975).
       3 RAP 2.5(a)(3).

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No. 65377-6-I / 4

charged.4  A mandatory presumption eliminates the State's burden of proving 

every element of the crime beyond a reasonable doubt.          If Bowen is correct, the 

claimed error is of constitutional magnitude and may be raised for the first time 

on appeal.5  

       "We review a challenged jury instruction de novo, evaluating it in the 

context of the instructions as a whole."6        It is reversible error to give a jury 

instruction that relieves the State of its burden to prove every essential element 

of the crime beyond a reasonable doubt.7       Bowen argues that the instructions on 

"recklessness" created an unconstitutional mandatory presumption that relieved 

the State of its burden.  A mandatory presumption requires the jury "to find a 

presumed fact from a proven fact."8        To determine whether a jury instruction 

creates a mandatory presumption, we examine whether a reasonable juror would 

interpret the presumption as mandatory.9  

       The jury instructions  for  second degree assault followed  Washington 

pattern jury instructions.10  Bowen argues that instructions 7 and 10 improperly 

placed no limit on the intentional or knowing acts that the jury could rely on to 

establish the element of recklessness.  In other words, because these 

       4 In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 
(1970).
       5 State v. Holzknecht, 157 Wn. App. 754, 760-62, 238 P.3d 1233 (2010), 
review denied, 170 Wn.2d 1029, 249 P.3d 623 (2011).
       6 State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
       7 Pirtle, 127 Wn.2d at 656.
       8 State v. Deal, 128 Wn.2d 693, 699, 911 P.2d 996 (1996).
       9 Deal, 128 Wn.2d at 701.
       10 See 11 Washington Practice:  Washington Pattern Jury Instructions: 
Criminal 35.12, at 469; 10.03, at 209 (3d ed. 2008) (WPIC).
                                           -4- 

No. 65377-6-I / 5

instructions did not specify that recklessness is also established by proof that a 

person acted intentionally or knowingly to establish substantial bodily harm, 

these instructions improperly allowed the jury to find Bowen recklessly inflicted 

substantial bodily harm if it found that he intentionally or knowingly assaulted 

Black.  He cites State v. Hayward11 to support his claim that the jury instructions

conflated the mental state of intent the jury had to find for Bowen's assault on 

the victim with the separate mental state of recklessness the jury had to find with 

respect to causing substantial bodily harm.

       We recently considered this issue in State v. Holzknecht.12           There, the 

court instructed the jury that to convict Holzknecht of second degree assault, it

must find an intentional assault and reckless infliction of substantial bodily 

harm.13   Like the instructions at issue here, an instruction in Holzknecht also 

stated,  "Recklessness is also established if a person acts intentionally              or 

knowingly."14 The court found the jury instructions

       followed the statute and correctly informed the jury of the 
       applicable law, including the rule that a mental state is established 
       by proof of a more serious mental state.  The instructions made 
       clear that a different mental state must be determined for each 
       element:  intent as to assault, and recklessness as to infliction of 
       substantial bodily harm.  The instructions thus clearly require two 
       separate inquiries, and nothing in the knowledge instruction
       suggests otherwise.  
              . . . . 

       11 152 Wn.      App. 632, 642, 217 P.3d 354 (2009)              (citing  State v. 
Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004)).
       12 157 Wn. App. 754, 238 P.3d 1233 (2010), review denied, 170 Wn.2d 
1029, 249 P.3d 623 (2011).
       13 Holzknecht, 157 Wn. App. at 761.
       14 Holzknecht, 157 Wn. App. at 761-62.

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No. 65377-6-I / 6

              The instructions did not create a mandatory presumption or 
       relieve the State of its burden of proof.[15]

       Here, as in Holzknecht, instruction 10 correctly states the elements of 

second degree assault and instructs the jury to consider a separate mental state 

for the assault and the injury.  Instruction 7 correctly states that proof of an 

intentional or knowing mental state establishes a reckless mental state.        Nothing 

in the two instructions conflates the mental state required for the assault with the 

mental state required with respect to the consequent injuries.           Therefore, we 

hold that the jury instructions did not violate Bowen's constitutional due process 

rights because they did not create a mandatory presumption.

Community Custody Sentencing

       Bowen argues, and the State concedes, that the trial judge incorrectly 

believed second degree assault to be a serious violent offense under the 

statutory sentencing scheme.  Rather, former RCW 9.94A.030(29)(b) (2009)16

identifies second degree assault as a violent offense.  RCW               9.94A.701(2)

mandates that "[a] court shall, in addition to the other terms of the sentence, 

sentence an offender to community custody for eighteen months when the court 

sentences the person to the custody of the department for a violent offense that 

is not considered a serious violent offense."  We remand to the trial court to 

correct the term of the sentence.

Validity of Imposing Legal Financial Obligations and Discretionary Fees

       Bowen relies on RCW         10.01.160 and argues that his need for court-

       15 Holzknecht, 152 Wn. App. at 766.
       16 This is the statute in effect at the time the crime was committed.

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No. 65377-6-I / 7

appointed counsel and his declaration of indigency for appeal were sufficient to 

show he does not have the ability to pay the court fees imposed.  Bowen failed 

to object to the fees at that time or to present evidence that he was unable to pay 

fees.  Because the imposition of fees is not a manifest error of constitutional 

magnitude, the issue is not properly before the court.  

                                      Conclusion

       We affirm Bowen's conviction and the imposition of fees but remand for 

correction of the community custody sentence in accordance with our opinion.

WE CONCUR:

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