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Opinion Information Sheet

			

                                                                     FILED

                                                                MAY 01, 2012

                                                          In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

STATE OF WASHINGTON,                                      No.  30504-0-III
                                                )
                             Respondent,        )
                                                )
         v.                                     )
                                                )
DESMOND BERNARD SHEPARD, JR.,                   )
                                                )
                             Appellant.         )         PUBLISHED OPINION
                                                )

                                                )

       Sweeney, J.  --  Conviction for third degree assault, as charged here, requires a 

showing that the defendant used an "instrument or thing likely to produce bodily harm."  

RCW 9A.36.031(1)(d).  Here, the defendant assaulted his former girl friend by striking 

her and pushing her.  She struck furniture and was seriously injured.  The question before 

the court is whether the furniture she struck satisfies the statutory requirement of an 

instrument or thing likely to produce bodily harm.  Our Supreme Court has already 

answered that question in a unanimous opinion in State v. Marohl, 170 Wn.2d 691, 246  

No. 30504-0-III
State v. Shepard

P.3d 177 (2010). And, the answer is no.  We therefore reverse the conviction for third 

degree assault.

                                            FACTS

       Desmond Shepard and Natasha Pipgras drank together in Ms. Pipgras's home.  Mr. 

Shepard became angry.  He threw Ms. Pipgras.  She struck an armoire.  He threw her 

again and she struck a dresser and also a child's playpen.  The assault resulted in serious 

injuries to Ms. Pipgras including bruises to her face, head, and body.

       The State charged Mr. Shepard with third degree assault. Mr. Shepard was also 

convicted of second and fourth degree assault for other acts of violence that night, and 

acquitted of third degree malicious mischief.  Since those charges are not at issue in this 

appeal, the facts underlying those matters are not discussed here. 

       A jury convicted Mr. Shepard of third degree assault.  

                                         ANALYSIS

       Our review is de novo.  Marohl, 170 Wn.2d at 697.  

       As charged here, the State was required to prove that Mr. Shepard, acting with 

criminal negligence, caused "bodily harm to another person by means of a weapon or 

other instrument or thing likely to produce bodily harm." RCW 9A.36.031(1)(d).  Mr. 

Shepard contends that Marohl establishes that he did not assault Ms. Pipgras with "an

instrument or thing likely to produce bodily harm."  The State responds that Mr. Shepard 

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No. 30504-0-III
State v. Shepard

used the furniture to assault Ms. Pipgras and that satisfies the requirement of the statute.  

The Supreme Court's decision in Marohl resolves the dispute.  

       In Marohl, the defendant took the victim in a choke hold and both men fell to the 

floor.  170 Wn.2d at 696.  "The impact with the casino floor caused [the victim] to suffer 

bruises and scrapes on his face, and his prosthetic arm broke off above the elbow joint."  

Id.  The State charged Mr. Marohl with third degree assault under the same statute at

issue here (RCW 9A.36.031(1)(d)) and alleged, and the court later correctly instructed, 

that the injuries had to be the result of "'a weapon or other instrument or thing likely to 

produce bodily injury.'" Id. The jury found Mr. Marohl guilty, he appealed, and the 

Court of Appeals affirmed the conviction.  Id. at 697.

       The Supreme Court accepted review and reversed the conviction. Id. at 694-95.

And, in doing so, the court made a number of observations and holdings that are 

controlling here:

   ?   "Only assaults perpetrated with an object likely to produce harm by its nature or 
       by circumstances fall within the subsection's [RCW 9A.36.031(1)(d)] purview."  
       Id. at 699.
   ?   "Thus, an 'instrument or thing likely to produce bodily harm' under RCW 
       9A.36.031(1)(d) must be similar to a weapon."  Id. at 700.
   ?   "RCW 9A.36.031(1)(d) makes no reference to the defendant's use of an 
       'instrument or thing likely to produce bodily harm.'. . . The casino floor was not 
       within the scope of RCW 9A.36.031(1)(d)."  Id. at 703.

       And, even in those jurisdictions whose statutes do consider the actual use of the 

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No. 30504-0-III
State v. Shepard

instrument or thing, as opposed to just focusing on the object itself independent of its use,

the court noted that "each defendant in Galvin, Reed, and Montano took hold of the 
victim's head and repeatedly struck it against the ground."1  Id. at 702.  The evidence 

here shows that Mr. Shepard brutally pushed or threw Ms. Pipgras.  He did not pick up 

the armoire, the dresser, or the playpen or any other object or instrumentality and strike 

her with it or deliberately beat her against it.  The Supreme Court authority is clear and its 

application here is clear -- the furniture "must be excluded from the definition of 

'instrument or thing likely to produce bodily harm,'" and the conviction here for third 

degree assault, then, must be reversed.  Id. at 703.

                                                    _________________________________
                                                    Sweeney, J.

I CONCUR:

___________________________________
Siddoway, J.

       1 People v. Galvin, 65 N.Y.2d 761, 481 N.E.2d 565, 492 N.Y.S.2d 25 (1985); 
State v. Reed, 101 Or. App. 277, 790 P.2d 551 (1990); State v. Montano, 1999 NMCA 
23, 126 N.M. 609, 973 P.2d 861.  

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