State of Washington v. Jonathan Mark Norris

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
JONATHAN M. NORRIS,
Appellant.
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No. 35039-8-III
UNPUBLISHED OPINION
LAWRENCE-BERREY, J. — Jonathan Norris was convicted of third degree assault
after swinging at a law enforcement officer during his arrest in a grocery store parking lot.
Norris argues that he was improperly sentenced for the completed crime of third degree
assault rather than the attempted crime. We reject his claim and affirm.
FACTS
Jonathan Norris was outside the Fred Meyer store in Spokane Valley early one
morning yelling and cursing at employees arriving for work. When told to leave by the
assistant manager, Norris cursed in response, stating that he did not have to leave.
Deputy Nathan Booth arrived on the scene, identified himself to Norris, and Norris
FILED
FEBRUARY 20, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 35039-8-III
State v. Norris
2
responded that he would have to be taken out in cuffs. Norris, who had a drink in his
dominant hand, swung at Deputy Booth with his other hand, but failed to connect.
PROCEDURE
The State charged Norris with third degree assault, a class C felony. The charge
cited RCW 9A.36.031(1)(g), which provides in part:
A person is guilty of assault in the third degree if he or she, under
circumstances not amounting to assault in the first or second degree:
. . . .
(g) Assaults a law enforcement officer or other employee of a law
enforcement agency who was performing his or her official duties at the
time of the assault . . . .
At trial, the court instructed the jury:
Instruction No. 9
An assault is an act done with intent to inflict bodily injury upon
another, tending but failing to accomplish it and accompanied with the
apparent present ability to inflict the bodily injury if not prevented. It is not
necessary that bodily injury be inflicted.
Clerk’s Papers (CP) at 42. This instruction mirrors 11 Washington Practice: Washington
Pattern Jury Instructions: Criminal (WPIC) 35.50, at 581 (4th ed. 2016). In the “Note on
Use,” the pattern instruction states to use this particular definition “in cases involving an
attempt to inflict bodily injury but not resulting in a battery.” WPIC 35.50, Note on Use
at 581.

No. 35039-8-III
State v. Norris
3
ANALYSIS
Norris argues that the State chose to proceed with the third degree assault charge
based on “attempted battery.” Appellant’s Br. at 4. Elsewhere he asserts
that an “attempted battery is an attempted assault.” Appellant’s Br. at 6. Citing
RCW 9A.28.020(3)(d), he argues that an attempted class C felony is reduced to a gross
misdemeanor. Under this theory, he requests to be resentenced. We reject Norris’s
argument.
Because Washington lacks a statutory definition of assault, courts turn to the
common law definition. State v. Villanueva-Gonzalez, 180 Wn.2d 975, 982, 329 P.3d 78
(2014). Washington recognizes three forms of assault: (1) assault by actual battery,
(2) assault by attempting to inflict bodily injury on another while having apparent present
ability to inflict such injury, and (3) assault by placing the victim in reasonable
apprehension of bodily harm. State v. Byrd, 125 Wn.2d 707, 712-13, 887 P.2d 396
(1995). The present case rests on a theory of the second definition, that Norris attempted
to inflict bodily injury on Deputy Booth by swinging at him, and Norris had the apparent
present ability to inflict such injury.

No. 35039-8-III
State v. Norris
Here, the State charged and the jury was instructed on assault, not attempted
battery. Norris did not commit "an attempted battery" or "an attempted assault." He
committed an actual assault. RCW 9A.28.020(3)(d) has no application here.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
j
WE CONCUR:
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