State Of Washington, Respondent V Charlene Eva Pratt, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
CHARLENE EVA PRATT,
Appellant.
No. 72766-4-1 	^
DIVISION ONE
UNPUBLISHED OPINION 	r^
I
5: 	—jji;
FILED: March 2, 2015 	V? 	^
VD 	-- ~:;
Trickey, J. — A "to-convict" instruction for a third degree assault charge
that fails to state that the assault must be intentional is not erroneous when the
term "assault" itself includes the element of intent and the jury was given the
definition of "assault."
FACTS
In the early morning hours of May 29, 2013, Charlene Pratt was trying to
gain 	access 	to 	the 	American 	Medical 	Response 	(AMR) 	office 	in 	Kelso,
Washington, to get out of the rain. 	An AMR employee called its "Corn-Center"
and had police dispatched.1 	Kelso police responded to the call. 	Because of
Pratt's combativeness and disheveled appearance, the police took her to the
hospital for an evaluation under the involuntary treatment act, chapter 71.05
RCW.
At the hospital, Pratt continued to be combative, screaming and swearing
at the staff. 	When the staff attempted to remove her clothing, Pratt warned them
that someone was going to get hit. 	As Megan Kautz bent over her to help
1 Report of Proceedings at 21-22.

No. 72766-4-1 / 2
remove her pants, Pratt cocked her right arm back and punched Kautz in the
mouth with a closed fist. 	Kautz lip was red and puffy and swelled up right away.
Pratt was arrested and charged with third degree assault of a health care
provider. A jury found Pratt guilty as charged.
Pratt appeals, contending the jury was improperly instructed on the third
degree assault charge because the "to-convict" instruction omitted the necessity
of finding intent, a necessary element ofthe charge. 	Pratt also contends that the
trial 	court erred 	in 	not giving 	a 	self-defense instruction, 	miscalculated 	her
offender score, and lacked authority to require her to pay her court appointed
attorney fees.
ANALYSIS
"To-Convict" Instruction
Pratt first 	challenges the third 	degree assault "to-convict" 	instruction,
claiming that it omitted an essential element of the charge by falling to require the
State to prove that she "intentionally" assaulted Kautz. 	Pratt did not object at trial
to the jury instruction she now challenges.
Generally, a defendant cannot challenge a jury instruction on appeal if he
or she did not object to the instruction in the trial court. 	State v. Salas, 127
Wn.2d 173, 181, 897 P.2d 1246 (1995). 	However, a defendant can raise such
an error for the first time on appeal if the instruction involved a manifest error
affecting a constitutional right. 	A trial court's failure to instruct the jury as to every
element of the crime charged violates due process. 	State v. Aumick, 126 Wn.2d

No. 72766-4-1 / 3
422, 429, 894 P.2d 1325 (1995). Thus, Pratt can raise the issue for the first time
on appeal.
We review the adequacy of a challenged "to-convict" instruction de novo.
State v. DeRvke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003). 	Generally,
the "to-convict" instruction must contain all the essential elements to the crime
charged. 	State v. Lorenz, 152 Wn.2d 22, 31, 93 P.3d 133 (2004); State v. Smith,
131 Wn.2d 258, 263, 930 P.2d 917 (1997).
The elements of third degree assault are set forth in RCW 9A.36.031(1)(i):
A person is guilty of assault in the third degree if he or she . . .
[ajssaults a 	nurse, 	physician, 	or health 	care provider who was
performing his or her nursing or health care duties at the time of the
assault.
Instruction 7, the "to-convict" instruction, states:
To convict the defendant of the crime of assault in the third degree,
each of the following elements of the crime must be proved beyond
a reasonable doubt:
(1) That on or about May 29, 2013, the defendant assaulted
Megan Kautz;
(2) That Megan Kautz was a health care provider,
(3) That at the time of the assault Megan Kautz was performing
her health care duties; and
(4) 	That 	any 	of 	these 	acts 	occurred 	in 	the 	State 	of
Washington.[2]
The jury was further instructed on the definition of assault. 	Instruction 8 states:
An assault is an intentional touching or striking of another person
that is harmful 	or offensive regardless of whether any physical
injury is done to the person 	A touching or striking is offensive if the
touching or striking would offend an ordinary person who is not
unduly sensitive.[3]
2 Clerk's Papers (CP) at 17.
3CPat18.

No. 72766-4-1 / 4
Pratt contends that the "to-convict" instruction 	omitted the element of
intent by failing to require the juryto find that Pratt "intentionally" assaulted Kautz.
But case law recognizes that the term "assault" itself "adequately conveys the
notion of intent" and, therefore, includes the element of intent. 	State v. Davis,
119 Wn.2d 657, 662-63, 	835 	P.2d 	1039 (1992) (citing State v. Hopper, 	118
Wn.2d 151, 158, 822 P.2d 775 (1992)). As the court explained in Hopper:
The definition of "assault" is a willful act. 	This court has previously
said 	that 	language 	alleging 	assault 	contemplates 	knowing,
purposeful 	conduct. 	The 	word 	"assault" 	is 	not 	commonly
understood as referring to an 	unknowing or accidental act. 	. . .
Commentators support the view that the term "assault" includes the
element of intent."
118 Wn.2d at 158-59 (citations and internal quotation marks omitted).
Pratt's reliance on Smith for the proposition that the jury was misinformed
about all the elements in the "to-convict" instruction is not well taken. 	In Smith,
the 	"to-convict" 	instruction 	actually misstated the elements of conspiracy to
commit murder by stating the wrong crime as the 	underlying crime that the
conspirators agreed to carry out. 	Instead of stating the underlying crime as the
"crime of Murder in the First Degree," the instruction stated it as the "crime of
Conspiracy to Commit Murder in the First Degree." Smith, 131 Wn.2d at 262.
Here, unlike the instruction in Smith, the "to-convict" instruction did not
purport to list the specific elements of assault and misstate them. 	Rather, it
simply required that the jury find that Pratt committed an act of third degree
assault.

No. 72766-4-1 / 5
Self-Defense
On appeal, Pratt argues that the record contained ample evidence that
she defended herself to prevent an offense against her person, i.e., she did not
strike Kautz until Kautz touched her. 	Thus, she argues, the trial court erred in
failing to instruct the jury on self-defense. 	A defendant has autonomy over the
defense presented at trial. 	State v. Lynch, 178 Wn.2d 487, 492, 309 P.3d 482
(2013).
At trial, Pratt's attorney argued that she did not have the requisite intent
because of her intoxication. 	If Pratt did not have the necessary intent to commit
an assault because of her intoxication, she would not have been able to form the
necessary intent to warrant the giving of a self-defense instruction.
So long as the instructions inform the jury of the elements of the offense
and allow counsel to argue their theories of the case, a trial court is not required
to instruct a jury in a more detailed fashion absent a request to do so. State v.
Marhohl, 151 Wn. App. 468, 477, 213 P.3d 49 (2009), rev'd on other grounds by
170 Wn.2d 691, 246 P.3d 177 (2010). 	In fact it would arguably be error for the
court to further instruct the jury in such circumstances. 	A defendant's right to
present a full defense and to jury instructions on the defense theory of the case
run in tandem with the defendant's constitutional right to control that defense.
State v. Jones, 99 Wn.2d 735, 740-41, 664 P.2d 1216 (1983). 	Here, the defense
did 	not advance 	a self-defense theory, 	the court's instructions set forth 	the
elements 	of the 	crime, 	and the 	instructions 	allowed 	counsel to argue their
theories of the case. The court did not err in not giving a self-defense instruction.

No. 72766-4-1 / 6
Offender Score
Pratt challenges her offender score on the grounds that the trial court
improperly counted her 2004 conviction because it had washed out. 	This court
reviews de novo a sentencing court's offender score calculation. 	State v. Tewee,
176 Wn. App. 964, 967, 309 P.3d 791 (2013), review denied, 179 Wn.2d 1016,
318 P.3d 280 (2014).
Although generally issues not raised in the trial court may not be heard for
the first time on appeal, this does not apply to illegal sentences. 	State v. Moen,
129 Wn.2d 	535, 	543, 	919 	P.2d 	69 	(1996). 	"Illegal or erroneous sentences,
however, may be challenged for the first time on appeal." 	State v. Nitsch, 100
Wn. App. 	512, 519, 997 P.2d 	1000 (2000). 	"[A] defendant cannot agree to
punishment in excess of that which the Legislature has established." 	In 	re
Personal Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002).
Thus, 	a 	defendant 	generally 	cannot 	waive 	a 	challenge 	to a 	miscalculated
offender score. 	Goodwin, 146 Wn.2d at 874.
A conviction may wash out of the offender score. 	RCW 9.94A.525(2).
Prior convictions for class C felonies are not included in an offender score if the
offender spent five consecutive years in the community without committing an
offense. 	RCW 9.94A.525(2)(c) provides:
Except as provided in (e) of this subsection, class C prior felony
convictions other than sex offenses shall not be included 	in the
offender score if, since the last date of release from confinement
(including 	full-time 	residential 	treatment) 	pursuant 	to 	a 	felony
conviction, if any, or entry of judgment and sentence, the offender
had 	spent 	five 	consecutive 	years 	in 	the 	community 	without
committing any crime that subsequently results in a conviction.

No. 72766-4-1 / 7
In re Personal Restraint of Call. 144 Wn.2d 315, 28 P.3d 709 (2001), is
instructive. 	There, the defendant's offender score was incorrectly calculated as
10 rather than 8, because two prior convictions should have washed out. 	Call,
144 Wn.2d at 334. The incorrect offender score calculation resulted in increasing
the standard range. 	CaJI, 144 Wn.2d at 334. 	The court held that remand for
resentencing was required, because the sentence was based on an erroneous
offender score. 	Call, 144 Wn.2d at 335. 	Both the defendant and the prosecutor
overlooked the fact that two of the defendant's prior convictions should 	have
washed out under former RCW 9.94A.360(2) (1999).
Similarly, 	here, the 2004 convictions should 	have washed out and 	not
been included in Pratt's offender score. 	As in CaN, this was an obvious error.
Accordingly, we 	remand for 	resentencing for the trial court to determine the
correct offender score.
Cost of Attorney
Pratt argues that the trial court lacked authority to order Pratt to pay the
cost 	of 	court-appointed 	counsel. 	The 	initial 	imposition 	of 	court 	costs 	at
sentencing is predicated on the determination that the defendant either has or
will have the ability to pay. 	RCW 10.01.160(3). 	Here, the court issued a finding
of fact, albeit contained in boilerplate language, that such was the case. 	RCW
10.01.160 authorizes a court to require an indigent defendant to pay for the
recoupment of fees for court-appointed 	counsel, 	the court did 	not abuse its
discretion. See State v. Smite. 152 Wn. App. 514, 519, 216 P.3d 1097 (2009).

No. 72766-4-1 / 8
Moreover, a challenge to a court imposed legal financial obligation at
sentencing, cannot be appealed as matter of right because it is not a final
judgment and the order to pay is conditional. 	State v. Hathaway, 161 Wn. App.
634, 651, 251 P.3d 253 (2011) (citing Smite, 152 Wn. App. 523).
CONCLUSION
In conclusion, we affirm the conviction for third degree assault of a health
worker, but remand to the trial court for resentencing.
TX <A e»j 	^
WE CONCUR:
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