State Of Washington, Respondent V. Maria Rogers, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) DIVISION ONE
, Respondent, )
) No. 77225-2-1
v. )
) UNPUBLISHED OPINION
MARIA SHAUNA ROGERS, )
)
Appellant. ) FILED: January 22, 2019
)
DWYER, J. — During her trial for third degree theft and two counts of third
degree assault, Maria Rogers admitted shoplifting merchandise and spraying a
plain clothes loss prevention officer with pepper spray when he confronted her
outside the store. She testified, however, that she sprayed the officer in self-
defense. She denied intentionally spraying a second store employee who ran up
to her moments after she sprayed the loss prevention officer.
Rogers' counsel requested, but the trial court refused to give, an inferior
degree instruction on fourth degree assault for the third degree assault counts. A
jury acquitted Rogers of assaulting the loss prevention officer but convicted her
of assaulting the other store employee. She now appeals, arguing that the court
erred in refusing to give a fourth degree assault instruction. The State contends
that she waived this claim of error. We rule that Rogers did not waive the error.
But because there is no evidence establishing that fourth degree assault
occurred to the exclusion of third degree assault, we affirm.

No. 77225-2-1/2
Based on police reports outlining the facts recited above, the State
charged Rogers with two counts of third degree assault and one count of third
degree theft. The amended information stated that Rogers committed the
assaults with intent to resist lawful apprehension "and with criminal negligence."
(Emphasis added.)
At trial, Edgardo Malabuen testified that he was working at a Super Saver
Food Store when he saw Rogers leave the store without paying for merchandise.
He stopped her in the parking lot and identified himself as store security. He told
her she had unpaid items in her possession and asked her to come inside to
answer questions. Rogers reached into her shoulder bag. Fearing she might
have a weapon, Malabuen ordered her not to reach into the bag. As the two
struggled over the bag, Rogers sprayed Malabuen in the face with pepper spray.
Malabuen fell to the ground, temporarily blinded.
Store employee Alan Chirino-Alamo witnessed Rogers' attack and
corroborated Malabuen's account of the assault. Chirino-Alamo testified that he
ran to help Malabuen, but when he got within three or four feet of him, Rogers
turned toward Chirino-Alamo, extended her arm, and sprayed him directly in the
face. Rogers then fled.
Chirino-Alamo and two other employees—all wearing red store employee
bibs—chased Rogers and eventually caught up to her. She initially refused to
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No. 77225-2-1/3
return to the store but relented when Chirino-Alamo called police. Chirino-Alamo
testified that during the walk back, Rogers apologized for pepper spraying him.
Rogers testified and admitted taking merchandise without paying for it. As
she left the store, she heard somebody running and turned to see Malabuen
running toward her. According to Rogers, Malabuen did not identify himself and
was not wearing a badge or uniform. She immediately dropped a gift bag
containing the stolen merchandise. Malabuen then grabbed her backpack and
reached for the gift bag. When asked what "was going on internally" for her at
that moment, Rogers testified that she "didn't know who he was" or "what he was
really doing," and she "was pregnant. . . and . . . just in defense mode." She
recalled thinking that Malabuen could be store security or could be a civilian.
She also recalled thinking that if Malabuen was store security, he would just pick
up the bag of merchandise she dropped and leave her alone. When Malabuen
continued to struggle with her, she "felt like maybe he's trying to hurt me, or rob
me." She then pepper-sprayed him in "self-defense."
When asked about Chirino-Alamo, Rogers expressly denied spraying him
with pepper spray:
Q: Okay. Let's speak about Alan [Chirino-Alamo]for a little bit.
Why did you spray him? I've been confused about that.
A: I didn't know he got sprayed. I didn't spray him intentionally or
on purpose. I had no idea he got sprayed.
Q: So, you had no idea that you stood up, turned around, extended
your arm, and sprayed him directly in the face.
A: I did not do that.
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No. 77225-2-1/4
Rogers claimed that she "took off running" and was "in defense mode" after she
sprayed Malabuen. When asked if she was worried about being caught
shoplifting, Rogers said, "I was just running. I was just in a defense mode."
As she ran, Rogers saw three store employees, including Chirino-Alamo,
wearing red store aprons. Defense counsel asked Rogers why she ran from
these employees:
Q.. . . When you say that you were afraid, . . . were you afraid that
you would be caught? Were you afraid you were going to get hurt?
What was going on in your mind?
A. Only when they first ran at me. I was afraid.
Q. Okay. And why was that?
A. I was afraid of being rushed, because. . . they were workers,
and I thought they were running at me because they thought maybe
I still had the items or something.
Q. So, you were worried that they might, like, physically harass
you?
A. Urn-huh.
At the close of the evidence, the trial court asked counsel whether they
had any objections to its proposed instructions. The proposed "to convict"
instructions on the assaults stated the jury could convict if Rogers committed the
assaults "with the intent to prevent or resist lawful apprehension or detention of
herself; OR.. . with criminal negligence [that] the defendant caused bodily harm
... by means of a weapon." (Emphasis added.) Defense counsel objected:
4

No. 77225-2-1/5
[DEFENSE COUNSEL]: My primary objection is ... the
defense, for the record, has requested that the "lesser included". . .
Fourth Degree instruction be included.
To make my record very clear, the amended information in
this case included reference to language from two separate prongs
of the Assault in the Third Degree charge -- charges. . . . However,
the actual amended information included the language and did not
include the disjunctive. . . .
The instructions that the Court has given here includes the
disjunctive allowing the jurors to find one of two alternative
meanings of committing Assault in the Third Degree. That is not the
language that. . . the defendant was put on notice of in the
charging documents.
Furthermore, given the language of the charging document,
the defense argues that Assault in the Fourth Degree is the lesser
included of that language, and is certainly the lesser included of the
lawful -- the Loss Prevention altemative.[11
If the Court is doing an alternative means instruction, and is
allowing the -- is allowing that "or" language, in order to convict 2(A)
or 2(B), I believe the Court indicated, then we would request that
we add a (inaudible)[Petrich[2]] instruction.
[THE COURT]: What language exactly do you want?
[THE COURT]: That they have to find 2(A) and 2(B)?
[DEFENSE COUNSEL]: The elements as set forth in the
charging document, yes.
[THE COURT]: Okay, what's the State's response?
[PROSECUTOR]: Your Honor, I do see what defense is
referring to. There is an "and" between the lawful [apprehension
and] criminal negligence. However, I believe that it's a clerical
error. . . . And I have absolutely no idea how defense would be
prejudiced by fixing -- if defense requests we file a second
amended information before there. However, I'm of the opinion that
defense was well aware at this point, and we are proceeding under
both prongs.
'Consistent with her arguments to the court, defense counsel's proposed "to convict"
instructions for the third degree assaults required the jury to find that Rogers acted with intent to
resist her lawful apprehension and with criminal negligence.
2 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173(1984).
- 5 -

No. 77225-2-1/6
[THE COURT]: Yeah, and I think under both Count I and
Count III which is Assault in the Third Degree, even though it does
have the "and" with criminal negligence instead of "or" with criminal
negligence, the RCW directs you to look at 1(A) and 1(D) which are
both prongs of that Assault III statute. So, 1 think it's — I'm going to
give the "or".
And, now I'm again asking the defense: What exactly do you
think you need in addition to what's already in the "to convict"?
[DEFENSE COUNSEL]: Given the amended information
language, I request that the jury be instructed that they just be
unanimous to either 2(A) or 2(B).
(Emphasis added.)
The court did not give a fourth degree assault instruction. The court's to-
convict instructions on the third degree assault counts required the State to prove
that Rogers was not acting in self-defense.
The jury acquitted Rogers of assaulting Malabuen—the plain clothed loss
prevention officer—but convicted her of assaulting Chirino-Alamo and of third
degree theft. Rogers appeals.
II
Initially, the State contends that Rogers waived any claim of error in the
trial court's failure to give a lesser degree offense instruction on fourth degree
assault. The State acknowledges that Rogers proposed the instruction but faults
her for not renewing her request "after the parties became distracted with another
issue" and for failing to "take exception to the court's instructions, which did not
include the fourth degree [assault] instruction." We disagree.
6

No. 77225-2-1/7
A party waives an alleged instructional error if he or she does not object to
the refusal to give a proposed instruction, as required by CrR 6.15(c). State v.
Johnson, 188 Wn.2d 742, 761-62, 399 P.3d 507(2017). Contrary to the State's
assertions, Rogers expressly objected to the court's proposed instructions,
arguing that she was entitled to a lesser offense instruction for fourth degree
assault. While the court never expressly ruled on the objection, it implicitly did
so. The State cites no authority requiring Rogers to obtain an express ruling to
preserve her objection. Rogers did not waive the alleged error.
III
Rogers contends that the trial court erred in failing to give the lesser
degree offense instruction on fourth degree assault. An instruction on an inferior
degree offense is warranted where:(1) the statutes for both the charged offense
and the proposed inferior degree offense proscribe but one offense;(2) the
information charges an offense that is divided into degrees, and the proposed
offense is an inferior degree of the charged offense; and (3)there is evidence
that the defendant committed only the inferior offense. State v. Fernandez—
Medina, 141 Wn.2d 448, 454,6 P.3d 1150 (2000). Only the third prong of this
test is at issue here.
To establish the third prong, there must be "substantial evidence"
supporting a "rational inference" that only the inferior degree offense was
committed "to the exclusion of the charged offense." Fernandez—Medina, 141
Wn.2d at 455, 461 (emphasis added). "[T]he evidence must affirmatively
7

No. 77225-2-1/8
establish" that the defendant committed the lesser-degree offense. Fernandez—
Medina, 141 Wn.2d at 456. In making this determination, we view the evidence
in the light most favorable to the party requesting the instruction. Fernandez—
Medina, 141 Wn.2d at 455-56. Whether to instruct a jury on an inferior degree
offense requires the application of law to facts and is reviewed de novo. State v.
Corey, 181 Wn. App. 272, 276, 325 P.3d 250 (2014).
Here, the charged offense is third degree assault by two means: an
assault with intent to prevent or resist lawful apprehension or detention, or an act,
with criminal negligence, that causes bodily harm by means of a weapon. The
inferior degree offense—fourth degree assault—requires proof that, "under
circumstances not amounting to assault in the first, second, or third degree, or
custodial assault,[the defendant] assault[ed] another." RCW 9A.36.041 (1).
Rogers contends substantial evidence supported an inference that "she sprayed
Chirino-Alamo out of fear rather than with the intention to resist lawful
apprehension," and therefore she was entitled to a lesser degree instruction.
Viewed in a light most favorable to Rogers, the record supports rational
inferences that she intentionally sprayed Chirino-Alamo, that she did so out of
fear of harm, and that she did not intend to prevent her lawful apprehension. The
evidence thus demonstrates an assault to the exclusion of the third degree
assault with intent to prevent or resist lawful apprehension or detention. RCW
9A.36.031(1)(a). The evidence does not, however, exclude the other charged
means of third degree assault, i.e., assault with criminal negligence causing
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No. 77225-2-1/9
bodily harm by means of a weapon likely to produce bodily harm. RCW
9A.36.031(1)(d). This is so because proof of intent also proves criminal
negligence, RCW 9A.08.010(2), and because it is undisputed that Chirino-Alamo
suffered bodily injury by means of a weapon likely to produce bodily harm. For
the same reason, the evidence fails to establish fourth degree assault, which
requires proof that the assault did not amount to a higher degree of assault,
including assault by criminal negligence.3 Accordingly, the trial court did not err
in refusing to give Rogers' proposed instruction on fourth degree assault.
Affirmed.
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3 Citing State v. Condon, 182 Wn.2d 307, 323-26, 343 P.3d 357 (2015), Rogers stata3
that when, as here, the greater degree offense is charged in the alternative, a lesser degree xs. u'rn
instruction must be given if the evidence proves the lesser degree offense to the exclusion offny
one alternative. The Condon majority held that where a defendant is charged with first degreila mu3
premeditated murder and first degree felony murder for the same conduct, a defendant is entgted
to a lesser included offense instruction for second degree intentional murder if there is evidence
that the lesser was committed to the exclusion of premeditated murder; the defendant need not
show that the lesser was also committed to the exclusion of felony murder. Condon's holding is
inapplicable here because, as mentioned above, the lesser offense in this case—fourth degree
assault—requires proof of an assault not amounting to the higher degrees of assault. Thus, to
establish the lesser degree offense, Rogers had to establish that she did not commit any charged
greater degree of the offense.
9