State Of Washington, Respondent V. Caleb Joseph Perkins, Appellant

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FILED
4/29/2019
Court of Appeals
Division |
State of Washington

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 77877-3-|
Respondent, DIVISION ONE
V. UNPUBLISHED OPINION

CALEB PERKINS,

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Appellant. )
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FILED: April 29, 2019

HAZELRIGG-HERNANDEZ, J. — Caleb Perkins seeks reversal, arguing that the
State presented insufficient evidence that he intentionally resisted arrest rather
than mere detention and that the court erred in refusing his proposed jury
instruction distinguishing the two concepts. The State presented sufficient
evidence for a rational trier of fact to find that a reasonable person in Perkins’
position would have thought he was under arrest. Considered as a whole, the
given jury instructions adequately informed the jury of the applicable law and
permitted Perkins to argue his theory of the case. We affirm.

FACTS

In the early morning of June 16, 2016, Officer Scott Bruton noticed a Nissan
Altima parked in a grocery store parking lot with the engine running. Officer Bruton
could see Caleb Perkins sitting in the driver's seat of the car with the seat fully
reclined. Officer Bruton ran the license plate and discovered that the Altima was

listed as a stolen vehicle. He then called the dispatch center on the radio and

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relayed the license plate number to confirm that the vehicle was stolen. Officer
Bruton called for backup, positioned his car behind the stolen vehicle, and turned
on his flashing lights.

When he turned the lights on, he saw Perkins quickly sit up and look back.
Perkins made a “back up” motion to the officer with his hands and the Altima began
reversing toward the police car. Officer Bruton got out of the police car and yelled
to Perkins, “This is the police, you're being de[ ]tained, you’re a suspect in a stolen
car, put your hands out the window, show me your hands.” The front driver's side
window of the Altima was open. Perkins put his hands on the windowsill for a
moment, then reached into the glove box, retrieved a cigarette, lit the cigarette,
and “[s]Jeemed to be fidgeting a lot.”

After a second officer, Corporal Jason Weiss, arrived, the two walked up to
the open window and ordered Perkins to get out of the car. Perkins responded
that the officers didn’t have the right to do that. Officer Bruton then opened the car
door and grabbed on to Perkins’ left arm, again ordering him out of the car. Perkins
pulled away, cursing at the officers and telling them he was not going to get out of
the car. Officer Bruton then used a “tie clench” maneuver, reaching around and
grabbing Perkins by the head to pull him out of the Altima. Perkins and Officer
Bruton landed face down on the ground and Perkins’ hands were underneath his
chest.

Officer Bruton yelled at Perkins to put his hands behind his back and
reached for his arms to try to place them behind his back. Perkins did not allow

Officer Bruton to pull his hands out from underneath him. Corporal Weiss tried to

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get Perkins’ hands onto his back and was unable to do so. Corporal Weiss testified
that he told Perkins twice, “If you don’t get your hands out from underneath you,
I'm going to taze you.” Officer Bruton could not remember whether Corporal Weiss
had given this warning but remembered that he said, “Taser, Taser, Taser,” and
then applied his Taser to Perkins. The Taser incapacitated Perkins and Officer
Bruton was able to pull Perkins’ hands out from under his body and handcuff him.

Officer Bruton helped Perkins to his feet and the officers searched him.
Perkins was yelling at the officers and pulling away as they were trying to search
him. Perkins complained that there was a dart from the Taser still connected to
him and Officer Bruton pulled it out. The officers called Eastside Fire and Rescue
to provide medical attention to Perkins, but when one of the firefighters approached
Perkins, he called him a name and refused treatment.

Officer Bruton placed Perkins under arrest and testified that he felt he had
probable cause because Perkins was in a stolen vehicle. Officer Bruton read
Perkins his Miranda’ warnings after placing him in his police car. Perkins
responded that he understood and would answer questions. Officer Bruton asked
him where he had gotten the Altima and Perkins responded that it had been given
to him by a guy who was going to jail, but he did not know the man’s name. He
said he had been driving the vehicle for two days. During the interview, Perkins
continued to curse at the officers and spat at Officer Bruton.

When Officer Bruton removed the key from the ignition of the Altima, he

noticed that the key was labeled “GM” rather than “Nissan.” He also noticed that

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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it was a “shaved key,” which is a key that has been scraped or ground down so
that it can fit into multiple ignitions. Officer Bruton testified that, based on his
training and experience, a shaved key is something commonly seen in stolen
motor vehicles.

Officer Bruton and Corporal Weiss testified to the preceding facts at trial.
After the close of the State’s case-in-chief, Perkins moved to dismiss the charge
of resisting arrest. Perkins argued that the state had not proven that he was
arrested, as opposed to simply detained, until he was placed in the police car. The
State responded that Officer Bruton had testified that he had arrested Perkins and
that he had probable cause to do so. The court noted that it had to view the
evidence in the light most favorable to the non-moving party. The court found it
“very clear” that Officer Bruton had the intent to arrest Perkins and noted that the
events took place within a short period of time. The court denied the motion to
dismiss the charge.

Perkins proposed the following jury instruction differentiating between
detention and arrest with citations to supporting authority:

A law enforcement officer's detention of a suspect does not
necessarily amount to an arrest. A person may be "detained" by law
enforcement, but not be "under arrest." The existence of probable
cause does not necessarily elevate a detention to an arrest.

State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003) (no valid arrest
had occurred, despite probable cause to justify one, to support
search incident to arrest); State v. Kennedy, 107 Wn.2d 1, 726 P.2d
445 (1986) (discussing the general distinction between Terry stops
and formal arrests); State v. Lesnick, 84 Wn.2d 940,943,530 P.2d
243 (1975) ("Terry confirms that something short of placing a person

under arrest may constitute a seizure within the meaning of the
Fourth amendment.").

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The court found that the instruction would be a comment on the evidence and
declined to give the instruction. Perkins took exception to this, arguing that the
proposed instruction was an accurate statement of the law distinguishing between
a detention and an arrest and served to further his theory of the case.

Perkins argued this theory in closing as follows:

So when Officer Bruton testified, if you recall or if you look
back at your notes, | think you'll see this word detention, detention,
detention over and over again. | told Mr. Perkins he was being
detained. He was under detention. He was under detention. The first
time he uses the word "arrest" is after the tazing, after he’s placed in
the back of the patrol car.

And you might sit here and maybe internally you're rolling your
eyes at me a little bit and saying: This is just lawyer talk. But these
distinctions are very important, because it's the State's burden to
prove that not only was there a detention, but there was an arrest.
Because they're not necessarily the same thing. Mr. Perkins can be
detained in an investigation about the car, but that doesn't
necessarily amount to an arrest. And what you didn't hear was Officer
Bruton saying: Put your hands out of the car, you're under arrest. Or:
Put your hands behind your back, you're under arrest.

So they haven't proven that there was actually an arrest. And
once you—the other leap from that is that how can he act
intentionally in resisting arrest, how can he intend to resist something
that he didn't know was actually happening? So if the officers are
thinking in their head that he's under arrest but not saying that, how
can he resist something that he isn't aware of?

Every act that the officers testified to that amounted to
resisting arrest happened before he was placed under arrest and
placed in the back of the patrol car. The arrest happened between
the tazing and being put in a patrol car. That's when he was
Mirandized. Everything else happened before then. So for those
reasons, the State hasn't proven that Mr. Perkins resisted a lawful
arrest.

The jury found Perkins guilty as charged. Perkins was sentenced to 90 days in jail

on each count to run concurrently with credit for time served.

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DISCUSSION
I. Sufficiency of Evidence
Perkins contends that the State presented insufficient evidence to support
his conviction for resisting arrest. Specifically, Perkins argues that the State
presented insufficient evidence that he intentionally resisted arrest rather than
mere detention.
Due process requires that the State prove each element of a charged

offense beyond a reasonable doubt. State v. Chacon, 192 Wn.2d 545, 549, 431

P.3d 477 (2018) (citing U.S. Const. amend. XIV; Jackson v. Virginia, 443 U.S. 307,

315-16, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); In re Winship, 397 U.S. 358, 364,
90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)). Evidence is sufficient to support a
conviction if, viewed in the light most favorable to the State, any rational trier of
fact could have found the elements of the crime beyond a reasonable doubt. State
v. Elmi, 166 Wn.2d 209, 214, 207 P.3d 439 (2009). “We draw all reasonable
inferences from the evidence in favor of the State.” Id.

Perkins was charged with resisting arrest in violation of RCW 9A.76.040,
which provides that “[a] person is guilty of resisting arrest if he or she intentionally
prevents or attempts to prevent a peace officer from lawfully arresting him or her.”
RCW 9A.76.040. A police officer has the authority to arrest a person without a
warrant if the officer has probable cause to believe that a person has committed

or is committing a felony. RCW 10.31.100. Possession of a stolen vehicle is a

class B felony. RCW 9A.56.068.

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Title 9A RCW does not define the term “arrest.” See RCW 9A.04.110, RCW
9A.76.010. Washington courts have interpreted the term in the context of search
and seizure, noting that “as a general rule[,] a person is placed under arrest when
he is deprived of his liberty by an officer who intends to arrest him. It is not always

necessary for an officer to make a formal declaration of arrest.” State v. Sullivan,

65 Wn.2d 47, 51, 395 P.2d 745 (1964). In State v. O'Neill, the Supreme Court

recognized the distinction between detention and arrest in holding that O’Neill was
detained when the officer asked him to step out of his vehicle but a lawful custodial
arrest that would justify a warrantless search incident to arrest had not occurred.
148 Wn.2d 564, 570-71, 62 P.3d 489 (2003).

“An arrest takes place when a duly authorized officer of the law manifests
an intent to take a person into custody and actually seizes or detains such person.
The existence of an arrest depends in each case upon an objective evaluation of

all the surrounding circumstances.” State v. Patton, 167 Wn.2d 379, 387, 219 P.3d

651 (2009) (citing 12 Royce A. Ferguson, Jr., Washington Practice: Criminal

Practice and Procedure § 3104, (3d ed. 2004)). To determine whether a person

is in custody, we must assess whether a reasonable person in the suspect's

position at the time would have thought he was under arrest. State v. Salinas, 169

Wn. App. 210, 218, 279 P.3d 917 (2012) (citing State v. Rivard, 131 Wn.2d 63, 75,

929 P.2d 413 (1997)). This is an objective assessment hinging on the
manifestation of the arresting officer's intent rather than any subjective intent. Id.

(citing State v. Radka, 120 Wn. App. 43, 49, 83 P.3d 1038 (2004)). “Whether an

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officer informs the defendant he is under arrest is only one of all of the surrounding
circumstances, albeit an important one.” Patton, 167 Wn.2d at 387 n.6.

A number of recent cases provide guidance on circumstances indicating an
arrest. In Patton, an officer was watching the defendant's trailer in hope of
arresting him on an outstanding warrant when he saw him in a car in the driveway.
Id. at 384. The officer called for backup and pulled into the driveway behind the
car with his flashing lights on to keep the defendant from driving away. Id. The
officer then approached Patton, told him he was under arrest, and ordered him to
put his hands behind his back. Id. Although Patton fled into the trailer and was not
physically restrained until later, the Supreme Court found that an arrest had
occurred before he fled. Id. at 387.

In Salinas, the officers identified themselves to the defendant as police and
ordered him to show his hands. 169 Wn. App at 218. When Salinas fled, the
officers chased him, ordered him to lie on the ground, and allowed a police dog to
bite Salinas in order to make him comply with that order. Id. at 218-19. He was
then handcuffed on the ground. Id. at 219. This court found that, although the
officers had not explicitly informed Salinas that he was under arrest, “[a]
reasonable person in this situation would have thought he was being arrested and
taken into custody, not merely being detained for a brief investigation.” Id.

Finally, in State v. Calvin, the defendant argued that he was not resisting

arrest because he did not know that he was under arrest and did not know that the
park ranger was a law enforcement official. 176 Wn. App. 1, 12, 316 P.3d 496

(2013). This court found that a rational trier of fact could have determined that

No. 77877-3-1/9

Calvin knew the ranger was a law enforcement officer and that, when the ranger
“identified himself as ‘police,’ told Calvin to get on the ground, and started to place
handcuffs on him, Calvin knew he was under arrest.” Id. at 13. Accordingly, when
the ranger took Calvin to the ground and handcuffed his left wrist but Calvin
struggled and refused to yield his right arm for approximately a minute, he was
attempting to prevent his arrest. Id. at 8—9, 14.

Here, viewed in the light most favorable to the State, the evidence is
sufficient for a rational trier of fact to find that Perkins was being arrested rather
than detained. Like Patton, Officer Bruton pulled his car behind Perkins, activated
his flashing lights, and ordered him to keep his hands visible. Although Perkins
was not explicitly informed that he was under arrest, Officer Bruton told him that
he was being detained because he was in a stolen vehicle. Like Salinas, Officer
Bruton identified himself as police and ordered Perkins to show his hands.
Although Officer Bruton used the word “detained” instead of “arrested” when telling
Perkins to stop the car, a rational trier of fact could find that a reasonable person
in Perkins’ position would have thought he was under arrest.

II. Jury Instruction

Perkins contends that the court erred in failing to give his proposed jury
instruction distinguishing detention and arrest because the court erroneously
concluded that this instruction would be an impermissible comment on the
evidence.

When a trial court refuses to give a requested jury instruction based on a

ruling of law, we review the denial de novo. State v. Brightman, 155 Wn.2d 506,

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519, 122 P.3d 150 (2005). The court gives jury instructions to guide the jury in its

deliberations and aid it in arriving at the proper verdict. State v. Allen, 89 Wn.2d

651, 654, 574 P.2d 1182 (1978). Jury instructions are sufficient if they are
supported by substantial evidence, allow the parties to argue their theories of the
case, and properly inform the jury of the applicable law when read as a whole.

State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002) (citing State v. Riley,

137 Wn.2d 904, 908 n.1, 909, 976 P.2d 624 (1999)). A defendant is entitled to an
instruction on his theory of the case if the evidence supports the instruction. State

v. Werner, 170 Wn.2d 333, 336, 241 P.3d 410 (2010) (citing State v. Ager, 128

Wnh.2d 85, 93, 904 P.2d 715 (1995)). However, “[t]he court need not give amplified
instructions, if the instructions given are broad enough to permit argument.” State
v. Elder, 70 Wn.2d 414, 419, 423 P.2d 533 (1967).

Judges are not permitted to comment on or convey their personal attitudes

about the merits of a case. State v. Foster, 91 Wn.2d 466, 481, 589 P.2d 789

(1979); Const. art. IV, § 16. “In determining whether words or actions amount to a
comment on the evidence, we look to the facts and circumstances of the case.”

State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). The judge’s personal

opinion about the evidence may not be conveyed to the jury directly or by
implication. Id. An instruction which is simply an accurate statement of the law
pertaining to an issue does not constitute an improper comment on the evidence.

State v. Woods, 143 Wn.2d 561, 591, 23 P.3d 1046 (2001), overruled on other

grounds by State v. Schierman, 192 Wn.2d 577, 415 P.3d 106 (2018).

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As discussed above, the proposed instruction appears to be an accurate
statement of the law and therefore did not constitute an improper comment on the
evidence. However, the court did not err in declining to give this instruction.
Considered as a whole, the given instructions adequately informed the jury of the
applicable law and permitted Perkins to argue his theory of the case. Indeed,
Perkins argued the key factual issue of whether he was being detained or arrested
extensively during his closing argument. Additionally, had the proposed instruction
been given without any additional information on what constituted an arrest, the
instructions would have been confusing to the jury and would not have furthered
the purpose of guiding the jury in its deliberations.

We affirm.

WE CONCUR:

OQ

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