State Of Washington, V. Charles Freeman Christian

On appeal, we determined the fact that

the defendant had been in jail did not mean he was convicted of a crime.

Id. at 649

. We also determined that, while the statements had the potential for

prejudice, they were not serious enough to warrant a mistrial, and the trial court’s

instruction to disregard the statement was sufficient to cure any potential

prejudice. Id.; see also State v. Lewis,

141 Wn. App. 367

166 P.3d 786

(2007)

(no abuse of discretion where the trial court struck testimony that violated a

motion in limine and gave a curative jury instruction).

Similar to the trial court in Condon, the trial court below gave a proper

curative instruction. The jury could infer Christian was in custody because the

officers arrested him at Keith’s apartment. Because we assume juries follow

instructions, the trial court did not abuse its discretion in denying Christian’s

motion for a mistrial.

10 No. 80045-1-I/11

Jury Unanimity

Christian argues the jury instructions for the crimes of assault in the

second degree and interfering with the reporting of domestic violence violated his

constitutional right to unanimous jury verdicts. We disagree.

Article I, section 21 of the Washington State Constitution provides

defendants the right to a unanimous jury verdict. The right to a unanimous jury

verdict includes the right to unanimity as to which means the State charged the

defendant and which act constituted the crime charged. State v. Bobenhouse,

166 Wn.2d 881, 893

214 P.3d 907

(2009). An “alternative means” crime is a

single offense that may be committed in more than one way. State v. Kitchen,

110 Wn.2d 403, 410

756 P.2d 105

(1988). A “multiple acts” crime includes

several alleged acts, “ ‘any one of which could constitute the crime charged.’ ”

State v. Garcia Gomez,

7 Wn. App. 2d 441

, 457,

434 P.3d 89

(2019) (quoting

State v. Crane,

116 Wn.2d 315, 324

804 P.2d 10

(1991)). Christian contends

both alternative means and multiple acts instructional errors violated his right to a

unanimous jury verdict. We address each claim in turn.

RAP 2.5(a)(3) provides that an “appellate court may refuse to review any

claim of error which was not raised in the trial court” unless the claimed error is a

“manifest error affecting a constitutional right.” An error is manifest if the

appellant can demonstrate actual prejudice through practical and identifiable

consequences at trial. State v. O’Hara,

167 Wn.2d 91, 99

217 P.3d 756

(2009).

An error is truly of constitutional dimension if it implicates a constitutional interest.

11 No. 80045-1-I/12

Id. at 98. “If a court determines the claim raises a manifest constitutional error, it

may still be subject to a harmless error analysis.” Id. “An alleged violation of the

right to a unanimous jury verdict is a constitutional challenge that this court

reviews de novo.” In re Det. of Keeney,

141 Wn. App. 318, 327

169 P.3d 852

(2007).

A. Alternative Means

“Where a single offense may be committed in more than one way, there

must be jury unanimity as to guilt for the single crime charged. Unanimity is not

required, however, as to the means by which the crime was committed so long

as substantial evidence supports each alternative means.” State v. Nonog,

145 Wn. App. 802, 811-12

187 P.3d 335

(2008), aff’d,

169 Wn.2d 220

237 P.3d 250

(2010). “Evidence is sufficient if, viewing the evidence in a light most favorable to

the State, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” State v. Owens,

180 Wn.2d 90, 99

323 P.3d 1030

(2014).

Whether a statute provides an alternative means crime is a question of

statutory interpretation. State v. Espinoza,

14 Wn. App. 2d 810, 819

474 P.3d 570

(2020) (citing Owens,

180 Wn.2d at 96

). “[T]he use of a disjunctive ‘or’ in a

list of methods of committing the crime does not necessarily create alternative

means of committing the crime, nor does the presence of statutory subsections.”

(citing State v. Barboza-Cortes,

194 Wn.2d 639

, 643-44,

451 P.3d 707

(2019)).

12 No. 80045-1-I/13

(i) Assault in the Second Degree

Christian asserts that a conviction for assault in the second degree must

be supported by sufficient evidence for each of the alternative means of

strangulation and suffocation. Because no evidence supports suffocation, he

contends we should reverse his conviction. We disagree.

Where there are alternative ways to satisfy each alternative means (i.e., “a

means within a means”), the alternative means doctrine does not apply. State v.

Smith,

159 Wn.2d 778, 783

154 P.3d 873

(2007) (quoting In re Pers. Restraint of

Jeffries,

110 Wn.2d 326, 339

752 P.2d 1338

(1988)). In other words, “the

alternative means analysis does not apply to ‘sub alternatives.’ ” Espinoza,

14 Wn. App. 2d at 819-22

(determining that, even though RCW 9A.46.020 is an

alternative means crime, the alternative means doctrine does not apply to the

sub alternatives of its subsection (citing Smith,

159 Wn.2d at 783

)).

In Smith, our Supreme Court analyzed former RCW 9A.36.021(1) (1988),

which contained six separate subsections representing the alternative means of

committing the crime of assault in the second degree.

159 Wn.2d at 784

. In

2007, the legislature added “[a]ssaults another by strangulation,” subsection (g),

as another means of finding a person guilty of assault in the second degree.

LAWS OF 2007, ch. 9, § 2. In 2011, the legislature added “or suffocation” within

subsection (g). LAWS OF 2011, ch. 166, § 1. RCW 9A.36.021(1)(g) provides, “A

person is guilty of assault in the second degree if he or she” “[a]ssaults another

by strangulation or suffocation.”

13 No. 80045-1-I/14

“When the alleged alternatives are ‘ “minor nuances inhering in the same

act,” ’ these ‘alternatives’ are more accurately categorized as ‘ “facets of the

same criminal conduct.” ’ ” Espinoza,

14 Wn. App. 2d at 819

(quoting Barboza-

Cortes, 194 Wn.2d at 644 (quoting State v. Sandholm,

184 Wn.2d 726, 734

364 P.3d 87

(2015))). “ ‘Strangulation’ means to compress a person’s neck, thereby

obstructing the person’s blood flow or ability to breathe, or doing so with the

intent to obstruct the person’s blood flow or ability to breathe.”

RCW 9A.04.110(26). “ ‘Suffocation’ means to block or impair a person’s intake

of air at the nose and mouth, whether by smothering or other means, with the

intent to obstruct the person’s ability to breathe.” RCW 9A.04.110(27). Here,

strangulation and suffocation are two “facets of the same criminal conduct” of

restricting a person’s ability to breathe.

Assault in the second degree is an alternative means crime because it is a

single criminal offense with seven separate subsections, (a) through (g),

representing the alternative means of committing the offense.

RCW 9A.36.021(1). Here, the State charged Christian with violating

RCW 9A.36.021(1)(g), which is one of the seven alternative means of committing

assault in the second degree. “We presume the legislature is ‘familiar with

judicial interpretations of statutes and, absent an indication it intended to overrule

a particular interpretation, amendments are presumed to be consistent with

previous judicial decisions.’ ” State v. Ervin,

169 Wn.2d 815, 825

239 P.3d 354

(2010) (quoting State v. Bobic,

140 Wn.2d 250, 264

996 P.2d 610

(2000)).

14 No. 80045-1-I/15

Thus, the legislature was aware of Smith and the interpretation of

RCW 9A.36.021(1) as an alternative means crime before it elected to add

“suffocation” within the same alternative means of “strangulation.” By electing

not to add suffocation as its own distinct subsection, the legislature chose not to

make suffocation its own alternative means of committing assault in the second

degree. Thus, strangulation and suffocation are “sub alternatives” or “means

within a means” within RCW 9A.36.021(1)(g). Strangulation and suffocation are

not alternative means in RCW 9A.36.021(1).

Christian argues that even if strangulation and suffocation are not

alternative means of committing assault in the second degree, under the law of

the case doctrine, they became alternative means when the jury was so

instructed, as proposed by the State. We disagree.

The trial court instructed the jury that to convict Christian of the crime of

assault in the second degree, the State must prove beyond a reasonable doubt

(1) [t]hat on or about the 29th day of December, 2018, the defendant intentionally assaulted Sharon Keith by a. strangulation or b. suffocation . . . .

Christian was tried for, and the jury was instructed, on assault in the second

degree by strangulation or suffocation and no other alternative means of

committing assault in the second degree. However, the trial court instructed the

jury as if strangulation and suffocation were alternative means:

To return a verdict of guilty, the jury need not be unanimous as to which of alternatives (1)(a) or (1)(b) has been proved beyond a

15 No. 80045-1-I/16

reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.

This instruction is consistent with the Washington Pattern Jury Instructions

for alternative means crimes. 11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN

JURY INSTRUCTIONS: CRIMINAL 4.23 (4th ed. 2016) (WPIC).

The law of the case doctrine “refers to the principle that jury instructions

that are not objected to are treated as the properly applicable law for purposes of

appeal.” Roberson v. Perez,

156 Wn.2d 33, 41

123 P.3d 844

(2005). Under this

doctrine, “[i]n criminal cases, the State assumes the burden of proving otherwise

unnecessary elements of the offense when such added elements are included

without objection in the ‘to convict’ instruction.” State v. Hickman,

135 Wn.2d 97, 102

954 P.2d 900

(1998). The law of the case doctrine does not apply to the

instant case where the to-convict instruction did not contain an added element.

In State v. Makekau, Division Two of this court determined possession of

a stolen motor vehicle was not an alternative means crime even though the

statute, and subsequent to-convict instruction, included a disjunctive “or” list of

methods of committing that crime.

194 Wn. App. 407, 419

378 P.3d 577

(2016).

There, the terms “received, possessed, concealed, or disposed of” were methods

rather than alternative means of committing possession.

Id. at 419-20

. Because

possession of a stolen motor vehicle was not an alternative means crime, and

the jury was not provided additional elements, “the State was required to prove

only that Makekau’s conduct satisfied one of the disjunctive terms.”

Id. at 420

16 No. 80045-1-I/17

Similar to Makekau, here, consistent with RCW 9A.36.021(1)(g), the

instruction properly provided the only two means within the means of finding

assault in the second degree. While the trial court erred in providing the

alternative means instruction because strangulation and suffocation are means

within a means, the State was not required to prove both sub alternatives beyond

a reasonable doubt. Thus, the error was harmless.

As Christian concedes, there was sufficient evidence to support a

conviction for strangulation. Keith testified to Christian choking her, and the

responding officers testified to observing bruising and abrasions around Keith’s

neck. Thus, sufficient evidence supports a conviction for assault in the second

degree by strangulation.

Because strangulation and suffocation are means within a means and

because Christian’s conviction is supported by sufficient evidence that he

strangled Keith, we find no reversible error. See Sandholm,

184 Wn.2d at 736

(determining, because the former driving under the influence statute “does not

create alternative means, and because Sandholm’s conviction is supported by

sufficient evidence that he drove under the influence of alcohol, we find no

error”).

(ii) Interfering with the Reporting of Domestic Violence

Christian contends the trial court erred by not instructing the jury that

interfering with the reporting of domestic violence is an alternative means crime.

Christian contends this is a reversible error. We disagree.

17 No. 80045-1-I/18

This court has determined the crime of interfering with the reporting of

domestic violence is an alternative means crime. Nonog,

145 Wn. App. at 811

12. 5 RCW 9A.36.150(1)(b) provides, “A person commits the crime of interfering

with the reporting of domestic violence if the person” “[p]revents or attempts to

prevent the victim of or a witness to that domestic violence crime from calling a

911 emergency communication system, obtaining medical assistance, or making

a report to any law enforcement official.” In other words, the statute sets forth

three alternative means of committing the crime of interfering: (1) preventing

someone from calling a 911 communication system, (2) preventing someone

from obtaining medical assistance, and (3) preventing someone from making a

report to any law enforcement officer.

In the instant case, the trial court did not instruct the jury that interfering

with the reporting of domestic violence is an alternative means crime. Instead,

jury instruction 15 provided,

To convict the defendant of the crime of interference with the reporting of a domestic violence offense, each of the following elements of the crime must be proved beyond a reasonable doubt: .... (3) That the defendant prevented or attempted to prevent Sharon Keith from calling a 911 emergency communication system or making a report to any law enforcement officer.

5 On appeal to the Supreme Court, the parties in Nonog did not challenge our determination that interfering with reporting domestic violence is an alternative means crime. Nonog,

169 Wn.2d 220

. The court affirmed Nonog without reaching the issue. We decline the State’s invitation to reconsider whether interfering with the reporting of domestic violence is an alternative means crime.

18 No. 80045-1-I/19

(Emphasis added). After the verdict, the trial court recognized that it did not give

the jury a unanimity instruction. Christian contends this is a reversible error.

Because the State presented sufficient evidence to support each of the two

alternative means listed in the court’s instruction, we disagree.

First, the State presented sufficient evidence that Christian prevented or

attempted to prevent Keith from calling 911. At trial, Keith testified to holding

onto the phone with both hands until Christian punched and choked her. Keith

testified that once Christian got the phone, he stopped choking her and stood up.

Also at trial, the responding officers testified that Keith reported “she attempted to

call 911” and that Christian threw the cell phone. Officers also testified Keith said

she went onto the balcony “hoping that someone could hear her and call 911 for

her.” Viewing the evidence in the light most favorable to the State, any rational

juror could have found beyond a reasonable doubt that Christian prevented or

attempted to prevent Keith from calling 911.

Second, the State presented sufficient evidence that Christian prevented

or attempted to prevent Keith from making a report to any law enforcement

officer. Keith testified that, after officers knocked on her apartment door,

Christian yelled through the door, “You cannot come in” and told Nigel not to

open the door. The reporting officers testified they repeatedly knocked on Keith’s

apartment door, announced their presence, and ordered the occupants to open

the door. They also testified that between knocks, they heard someone inside

crying and someone else shout “No” to their request to open the door. After the

19 No. 80045-1-I/20

officers forced their way into the apartment, they found Keith crying and lying

under a blanket on the bed and Christian standing at the foot of the bed.

Christian then approached the officers swinging his arms and shouting for the

officers to “get out.” Viewing the evidence in the light most favorable to the State,

any rational juror could have found beyond a reasonable doubt that Christian

prevented or attempted to prevent Keith from making a report to any law

enforcement officer by refusing the police entry into the apartment and ordering

Nigel not to answer the door.

“[W]hen there is sufficient evidence to support each of the alternative

means of committing the crime, express jury unanimity as to which means is not

required.” Owens,

180 Wn.2d at 95

. Because there was sufficient evidence to

support each alternative means listed in the trial court’s instruction, the trial court

did not violate Christian’s right to a unanimous verdict.

B. Multiple Acts

Christian also contends the trial court erred by not providing a jury

unanimity instruction and not ensuring unanimity as to which particular act the

jury relied upon to convict him of the crime of interfering with the reporting of

domestic violence. We disagree.

To convict a defendant of a multiple acts crime, the State must elect the

act on which it relies to convict the defendant, or the trial court must provide a

unanimity instruction and the jury must unanimously agree as to which act

constituted the crime charged. Bobenhouse,

166 Wn.2d at 893

. The failure to

20 No. 80045-1-I/21

provide the jury with a unanimity instruction can be a constitutional error because

it creates a “possibility that some jurors may have relied on one act or incident

and some another, resulting in a lack of unanimity on all of the elements

necessary for a valid conviction.” Kitchen,

110 Wn.2d at 411

. When multiple

acts form a continuing course of criminal conduct, the State need not make an

election or provide a unanimity instruction. State v. Rodriguez,

187 Wn. App. 922, 936

352 P.3d 200

(2015) (citing Crane,

116 Wn.2d at 330

To determine whether multiple acts form one continuing offense, we “must

view the facts in a commonsense manner.” Rodriguez,

187 Wn. App. at 937

(citing Petrich,

101 Wn.2d at 571

). “Evidence that multiple acts were intended to

secure the same objective supports a finding that the defendant’s conduct was a

continuing course of conduct.”

at 937 (citing State v. Handran,

113 Wn.2d 11, 17

775 P.2d 453

(1989)). “Courts also consider whether the conduct occurred at

different times and places or against different victims.”

The State contends, and we agree, a unanimity instruction was not

required because Christian’s acts formed a continuous course of criminal

conduct. By taking Keith’s phone, Christian prevented Keith from calling 911.

Christian then repeatedly tried to pull Keith off the balcony while she screamed

for help. After hearing sirens, Keith told Christian the police were coming and

jumped into bed crying. By standing at the foot of Keith’s bed and yelling “no” to

the police’s request to open the door, Christian attempted to prevent Keith from

making a report to any law enforcement official. Both acts had the same

21 No. 80045-1-I/22

objective—to interfere with Keith’s reporting of domestic violence. This all

occurred on the same day, in the same apartment, and against the same victim.

Because Christian’s acts formed a continuous course of criminal conduct, the

State was not required to elect which act or to provide the jury with a unanimity

instruction. Accordingly, the trial court did not violate Christian’s right to a

unanimous verdict.

Culpable Mental State

Christian argues his conviction for interfering with the reporting of

domestic violence should be reversed because the crime requires an element of

a culpable mental state, which neither the charging information nor the to-convict

instruction contained. 6 Because we determine the crime of interfering with the

reporting of domestic violence is a strict liability offense, we disagree.

Whether the crime of interfering with the reporting of domestic violence

contains a mens rea element or is a strict liability crime presents questions of law

that are reviewed de novo. State v. Yishmael,

195 Wn.2d 155

, 163,

456 P.3d 1172

(2020). 7

Under common law “strict liability crimes [were] disfavored.” State v.

Anderson,

141 Wn.2d 357, 367

5 P.3d 1247

(2000); Yishmael II,

. The State was required to “prove both a bad act and a bad intent.”

6 Christian argues this court should read the statute to include an implied mens rea element of intentional or knowing prevention of reporting. Christian provides no argument as to which mens rea this court should infer. 7 For clarity, we refer to State v. Yishmael,

195 Wn.2d 155

456 P.3d 1172

(2020) as “Yishmael II” because it followed State v. Yishmael,

6 Wn. App. 2d 203

430 P.3d 279

(2018), which we refer to as “Yishmael I.”

22 No. 80045-1-I/23

Yishmael II,

. But, our legislature has plenary power to create

strict liability crimes. State v. Blake,

197 Wn.2d 170, 179

481 P.3d 521

(2021)

(citing Yishmael II,

). “Strict liability crimes” are crimes that

“criminalize conduct regardless of whether the actor intended wrongdoing.”

(quoting Yishmael II,

). Strict liability crimes require the State

prove actus reus but do not require the State to prove mens rea. 8 “In particular,

the legislature may create ‘strict liability offenses to protect the public from the

harms that have come with modern life by putting the burden of care on those in

the best position to avoid those harms.’ ”

130 Wn.2d 594, 604-05, 610

(quoting Yishmael II,

195 Wn.2d at 164

“[W]hether a statute sets forth a strict liability crime is a statutory

construction question aimed at ascertaining legislative intent. The inquiry begins

with the statute’s language and legislative history.” State v. Bash,

925 P.2d 978

(1996); see also Blake,

197 Wn.2d at 193

(confirming that “when the legislature enacts a statute without explicit mens rea

language, we will still look to the statutory language, the legislative history, and a

series of nonexclusive factors to determine ‘whether the legislature intended to

create a strict liability offense.’ ” (quoting Yishmael II,

195 Wn.2d at 164-66

)). We

consider the “statute’s context, and the interplay with related statutes.”

Yishmael II,

195 Wn.2d at 164

8 “Actus reus” is a voluntary act. BLACK’S LAW DICTIONARY 45-46 (11th ed. 2019).

23 No. 80045-1-I/24

RCW 9A.36.150 provides,

(1) A person commits the crime of interfering with the reporting of domestic violence if the person: (a) Commits a crime of domestic violence, as defined in RCW 10.99.020; and (b) Prevents or attempts to prevent the victim of or a witness to that domestic violence crime from calling a 911 emergency communication system, obtaining medical assistance, or making a report to any law enforcement official. (2) Commission of a crime of domestic violence under subsection (1) of this section is a necessary element of the crime of interfering with the reporting of domestic violence. (3) Interference with the reporting of domestic violence is a gross misdemeanor.

The text of RCW 9A.36.150 does not include an explicit mens rea

element. A statute’s “failure to be explicit regarding a [mens rea] element is not,

however, dispositive of legislative intent.” Anderson,

141 Wn.2d at 361

. Thus,

we next consider RCW 9A.36.150’s legislative history. Blake,

197 Wn.2d at 193

;

Yishmael II,

195 Wn.2d at 166

As Christian asserts and the State concedes, RCW 9A.36.150’s legislative

history does not include a statement of legislative intent. The legislative history

does not answer the questions of whether the legislature intended to include a

mens rea element or whether the legislature purposefully omitted that element.

Christian argues that because RCW 9A.36.150 does not establish an

affirmative defense, the legislature intended there to be a mens rea element. In

Anderson, the Washington State Supreme Court considered whether the crime of

unlawful possession of a firearm in the second degree contained an implicit mens

rea element or was a strict liability crime.

141 Wn.2d at 360

. The court found

24 No. 80045-1-I/25

“the legislative history [was] not conclusive on the issue of the Legislature’s

intent.”

Id. at 362-63

. There, the legislature’s “failure to provide in the statute for

the affirmative defense of unwitting conduct or to expressly eliminate lack of

knowledge as a defense [were] . . . other indicators of its intent to make [mens

rea] an element of the offense.”

In other words, we consider the fact that a

statute does not include an affirmative defense or does not expressly eliminate

the lack of knowledge as an affirmative defense as indicative of the legislature’s

intent to create a mens rea element.

The State asserts the language of RCW 9A.36.150 “gives conflicting

signals as to the legislative intent” for two reasons. First, the State asserts

RCW 9A.36.150(1)(a) requires that the defendant commit a domestic violence

crime as defined in RCW 10.99.020, and some of those domestic violence

crimes have express mens rea elements but others do not. The State cites rape

in the first degree, RCW 9A.44.040, as a crime that does not have a mens rea

element and that it is listed as a potential domestic violence crime defined in

RCW 10.99.020. 9

Second, the State acknowledges that RCW 9A.36.150(1)(b) includes the

phrase “prevents or attempts to prevent,” which “suggests a mental state under

some circumstances but not others.” The State argues the court should

determine that “[o]nly the word ‘attempt’ indicates an intentional act.” In criminal

9 However, “the general rape statutes require forcible compulsion or an unwilling or incapacitated victim.” State v. Johnson,

173 Wn.2d 895, 907

270 P.3d 591

(2012) (citing RCW 9A.44.040, .050, .060).

25 No. 80045-1-I/26

law, “attempt” is “[a]n overt act that is done with the intent to commit a crime but

that falls short of completing the crime.” BLACK’S LAW DICTIONARY 158 (11th ed.

2019) (emphasis added).

When the statute’s language and legislative intent are not determinative

as to whether a crime includes a mens rea element, we use the eight

“nonexclusive” factors identified in Bash “as aids in determining whether the

Legislature has created a strict liability crime.” Anderson,

(citing Bash,

); Yishmael II,

; see Blake,

(courts still consider the Bash factors). The Bash factors are

(1) a statute’s silence on a mental element is not dispositive of legislative intent; the statute must be construed in light of the background rules of the common law, and its conventional mens rea element; (2) whether the crime can be characterized as a “public welfare offense” created by the Legislature; (3) the extent to which a strict liability reading of the statute would encompass seemingly entirely innocent conduct; (4) and the harshness of the penalty . . .[;] (5) the seriousness of the harm to the public; (6) the ease or difficulty of the defendant ascertaining the true facts; (7) relieving the prosecution of difficult and time-consuming proof of fault where the Legislature thinks it important to stamp out harmful conduct at all costs, “even at the cost of convicting innocent-minded and blameless people”; and (8) the number of prosecutions to be expected.

-06 (quoting 1 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR.,

SUBSTANTIVE CRIMINAL LAW § 3.8, at 341 (1986). “All of these factors are to be

read in light of the principal that offenses with no mental element are generally

disfavored.” Anderson,

141 Wn.2d at 363

First, we consider the statute “in light of the background rules of common

law, and its conventional mens rea element.” Bash,

. As the

26 No. 80045-1-I/27

State correctly notes and Christian does not dispute, there is no common law

equivalent to the crime of interfering with the reporting domestic violence. The

State correctly asserts this factor is “unhelpful.” State v. Williams,

158 Wn.2d 904, 911

148 P.3d 993

(2006) (determining this factor is unhelpful where the

statute has no common law predecessor).

Second, we consider “whether the crime can be characterized as a ‘public

welfare offense’ created by the Legislature.” Bash,

Generally, public welfare offenses do not require proof of intent or a mental state.

Id. at 607

. In other words, “the legislature may create ‘strict liability offenses to

protect the public.’ ” Blake,

197 Wn.2d at 179

(quoting Yishmael II,

195 Wn.2d at 164

). Public welfare offenses tend to be “regulatory offenses” “involving ‘pure

food and drugs, labeling, weights and measures, building, plumbing and

electrical codes, fire protection, air and water pollution, sanitation, highway safety

and numerous other areas.’ ” Bash,

130 Wn.2d at 607

(quoting State v. Turner,

78 Wn.2d 276, 280

474 P.2d 91

(1970)). Public welfare offenses

are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.

Morissette v. United States,

342 U.S. 246, 255-56

72 S. Ct. 240

96 L. Ed. 288

(1952).

27 No. 80045-1-I/28

Crimes that are not public welfare offenses are “moral turpitude” offenses

and categorized as malum in se crimes. 10 State v. Smith,

17 Wn. App. 231, 234

562 P.2d 659

(1977). Moral turpitude offenses generally “require a mental

element, some level of ‘guilty knowledge,’ even if the statute does not specify

that element.” Bash,

130 Wn.2d at 606

-07 (quoting Turner,

78 Wn.2d at 280

Christian asserts, “The crime of interfering with reporting of domestic

violence is a crime of moral turpitude, not a public welfare offense” because “it

prevents the victim from obtaining needed aid” and there is an “immediate harm”

to the victim.

The State agrees the offense of interfering with the reporting of domestic

violence is not technically a public welfare offense because it is not a regulatory

offense. But, the State argues the offense of interfering with the reporting of

domestic violence shares some aspects of public welfare offenses because its

harm extends beyond the victim to society. We address the State’s argument

below in our consideration of Bash factor five examining the “seriousness of the

harm to the public.”

The crime of interfering with the reporting of domestic violence is more

similar to a crime of moral turpitude than to a public welfare offense. As

previously noted, many public welfare offenses “result in no direct or immediate

injury to person.” Morissette,

342 U.S. at 255-56

. Unlike public welfare offenses,

A “malum in se” crime is a “crime or an act that is inherently immoral, 10

such as murder, arson, or rape.” BLACK’S, supra, at 1148.

28 No. 80045-1-I/29

as Christian asserts, the crime of interfering with the reporting of domestic

violence may involve immediate harm to the victim. Thus, this factor weighs in

favor of finding a mens rea element.

Third, we consider “the extent to which a strict liability reading of the

statute would encompass seemingly entirely innocent conduct.” Bash,

. “[A] statute will not be deemed to be one of strict liability where

such construction would criminalize a broad range of apparently innocent

behavior.” Anderson,

141 Wn.2d at 364

Christian provides a number of examples of how RCW 9A.36.150 would

criminalize a broad range of seemingly innocent behavior if it is a strict liability

crime. For example, Christian asserts, “Suppose an assault victim, sometime

after being assaulted, contemplates calling 911 but, before moving to pick up the

phone and without announcing her intention, the defendant picks up the phone to

call someone else, thereby preventing her from calling 911.” Christian’s

hypothetical fails to provide other context that a jury could consider such as

whether the assault victim was able to pick up the phone moments later and

make the call or whether the assailant dominated the use of the phone for the

rest of the evening. Regardless of the circumstances, the jury is to consider

circumstances in determining if the assailant, beyond a reasonable doubt,

prevented or attempted to prevent the victim from making that call.

More importantly, Christian’s hypothetical ignores the fact that it was the

defendant who created the situation where the victim would have a reason to call

29 No. 80045-1-I/30

a 911 emergency communication system, obtain medical assistance, or make a

report to any law enforcement official. In other words, the State still has to prove

the defendant committed a crime of domestic violence. The statute only

criminalizes the active, not passive, conduct of interfering with the reporting of

domestic violence after having committed a domestic violence crime. 11 This is

not wholly innocent nonconduct.

Furthermore, Christian’s request to add a mens rea element creates a

potentially dangerous situation. It is reasonable that a victim of domestic

violence would not want the defendant to know that the victim was trying to call

for help or report the crime. Requiring the defendant to know the victim was

trying to seek help does not contemplate the circumstances of domestic violence.

The State argues a defendant can only commit the crime of interfering

with the reporting of domestic violence only if that defendant commits a crime of

domestic violence so the crime does not criminalize a broad range of innocent

behavior. State v. Burch is analogous on this factor.

197 Wn. App. 382, 394

389 P.3d 685

(2016). In Burch, Division Two of this court considered whether

vehicular homicide committed while under the influence of alcohol or drugs was a

strict liability crime.

Id. at 393

. The court considered the fact that the underlying

crime of driving under the influence is a serious criminal offense.

Id. at 394

“Because vehicular homicide while under the influence of intoxicating liquor or

11Cf. Blake,

197 Wn.2d at 193

(holding the felony of unknowing possession of a controlled substance unconstitutionally criminalized “wholly innocent and passive nonconduct on a strict liability basis”).

30 No. 80045-1-I/31

drugs requires the State to prove the facts of both impairment and operation of a

motor vehicle, the crime necessarily encompasses primarily or solely criminal

behavior.” Id. at 395. As the State asserts, to convict a defendant of the crime of

interfering with the reporting of domestic violence, the State must prove and the

trier of fact must find the defendant committed a domestic violence crime. The

underlying crime of domestic violence is a serious criminal offense. Thus, the

crime of interfering with the reporting of domestic violence does not criminalize a

broad range of innocent behavior. This factor weighs in favor of strict liability.

Fourth, we consider “the harshness of the penalty.” Bash,

. “ ‘[T]he greater the possible punishment, the more likely some fault is

required; and, conversely, the lighter the possible punishment, the more likely the

legislature meant to impose liability without fault.’ ”

at 608-09 (quoting 1

LAFAVE & SCOTT, supra, § 3.8, at 343. Interfering with the reporting of domestic

violence is a gross misdemeanor subject to a possible 364 days in jail.

RCW 9A.36.150(3); RCW 9A.20.021.

Christian argues generally that a person convicted of a felony may receive

a lighter sentence than a person convicted of a gross misdemeanor a person

convicted of both interfering with the reporting of domestic violence and a felony

may receive a harsher sentence and a person convicted of a gross misdemeanor

will face numerous societal hardships.

As the State points out, courts have found that an offense that is a gross

misdemeanor weighs in favor of concluding it is a strict liability offense (citing

31 No. 80045-1-I/32

Yishmael II,

195 Wn.2d at 170

(Generally, a first offense for the unlawful practice

of law would be a misdemeanor and weighs in favor of reading the crime as a

strict liability offense.)).

Furthermore, courts have found that felonies that carry a maximum

penalty of five years of imprisonment “weigh in favor” of a reading that the crime

“is not one of strict liability.” Anderson,

(emphasis added); see

also State v. Warfield,

119 Wn. App. 871, 881-82

80 P.3d 625

(2003) (agreeing

with the Anderson court that “a five-year prison term is not inconsequential” and

is a “ ‘harsh’ penalty”).

Because RCW 9A.36.150 is a gross misdemeanor that carries a potential

maximum penalty of 364 days of jail, the penalty factor weighs in favor of reading

RCW 9A.36.150 as a strict liability crime.

Fifth, we consider “the seriousness of the harm to the public.” Bash,

. “ ‘[T]he more serious the consequences to the public, the more

likely the legislature meant to impose liability without regard to fault, and vice

versa.’ ”

at 610 (quoting 1 LAFAVE & SCOTT, supra, § 3.8, at 343).

Without citation to any authority, Christian contends that while defendants

charged with interfering with the reporting of domestic violence may harm the

victim, such defendants do not harm the general public. The State argues that

the legislature recognizes that domestic violence is a serious societal issue that

poses immediate risk of harm to victims and their families as stated in the

32 No. 80045-1-I/33

purpose and intent of chapter 10.99 RCW.12 The legislature created chapter

10.99 RCW to address domestic violence. The State points to the legislature’s

explicit recognition of why it created this chapter:

The purpose of this chapter is to recognize the importance of domestic violence as a serious crime against society. . . . Only recently has public perception of the serious consequences of domestic violence to society and to the victims led to the recognition of the necessity for early intervention by law enforcement agencies.

RCW 10.99.010 (emphasis added). The State also cites RCW 9.94A.535(3),

which provides “an exclusive list of factors that can support a felony sentence

above the standard range.” One of the aggravating factors is where “[t]he current

offense involved domestic violence . . . and one or more of the following was

present”:

(i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of a victim or multiple victims manifested by multiple incidents over a prolonged period of time; (ii) The offense occurred within sight or sound of the victim’s or the offender’s minor children under the age of eighteen years; or (iii) The offender’s conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.

RCW 9.94A.535(3)(h). These statutes reflect the legislature’s awareness that

the impact of domestic violence goes beyond the victim.

12The United States Centers for Disease Control and Prevention recognizes “Intimate Partner Violence” as “a serious, preventable public health problem that affects millions of Americans. The term ‘intimate partner violence’ describes physical violence, sexual violence, stalking, or psychological harm by a current or former partner or spouse.” https://www.cdc.gov/ViolencePrevention/intimatepartner violence/index.html (last updated Oct. 9, 2020).

33 No. 80045-1-I/34

Christian also generally asserts the purpose of criminal law is to deter

conduct, and punishment for crimes without a mental element does not further

the goal of deterrence. Christian cites Anderson,

, and Bash,

130 Wn.2d at 610

Both Anderson and Bash are distinguishable. The Anderson court

concluded that “[w]hile one can easily argue that there is danger to society if

persons who have been convicted of certain crimes knowingly possess firearms,

we fail to see how their unwitting possession of a firearm poses a significant

danger to the public. Neither does the punishment of such persons further a goal

of deterrence.”

. The Bash court considered the crime of

possessing a potentially dangerous or dangerous dog that severely injures or

causes the death of another.

130 Wn.2d at 598-99

. The Bash court concluded

that “[w]hether a strict liability standard would accomplish the goal of deterrence

is doubtful, however, because unless the owner knows or reasonably should

know of the dog’s dangerous propensities, it is unlikely that the owner would

think it necessary to use extraordinary care in controlling the dog.”

Id. at 610

Unlike the defendant who unwittingly possessed a firearm or unknowingly

possessed a dangerous dog, defendants who interfered with the reporting of

domestic violence are not defendants who innocently found themselves in that

circumstance. They are defendants, as the State points out, who committed a

domestic violence crime against the victim, and these defendants need only

34 No. 80045-1-I/35

“stand aside and allow the victim to call the police or seek medical attention.”

Thus, deterrence is not doubtful.

Because domestic violence is a serious crime against society, the crime of

interfering with the reporting of domestic violence is one way to try to reduce

public harm. This factor weighs in favor of strict liability.

Sixth, we consider “the ease or difficulty of the defendant ascertaining the

true facts.”

Id. at 605

. “ ‘[T]he harder to find out the truth, the more likely the

legislature meant to require fault in not knowing; the easier to ascertain the truth,

the more likely failure to know is no excuse.’ ” Yishmael II,

195 Wn.2d at 170-71

(alteration in original) (quoting 1 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR.,

SUBSTANTIVE CRIMINAL LAW § 5.5(a), at 518-19 (3d ed. 2017)). In other words,

the easier it is for a defendant to discover the facts surrounding their actions, the

more likely the legislature meant to impose strict liability for those actions.

In Yishmael II, the Washington State Supreme Court determined that it “is

not difficult to ascertain that filling out legal documents for a fee is the practice of

law.” Id. at 171. Here, it is not difficult to ascertain that victims of domestic

violence may want to call for help or make a report to a law enforcement officer

and that the defendant should not interfere with the victim’s ability to do so.

Christian argues this factor is “unilluminating because the circumstances

under which a person may prevent a report are varied.” Christian asserts the

victim of domestic violence is in the superior position to know whether they intend

to make a report. The State argues that because “the defendant will already

35 No. 80045-1-I/36

know what he did, and who he did it to, he is in possession of facts that amount

to a crime.” (Emphasis added.) The State also argues “the defendant will know

if the victim has reached for a phone, attempts to leave the apartment, or

attempts to contact a law enforcement officer on the street nearby.”

It is true that there are circumstances where the victim makes it known,

either intentionally or unintentionally, to the defendant that the victim wants to call

for help. However, it is also true that even in situations where a victim does not

want the defendant to know they are trying to call for help, the defendant is still in

the best possession to know facts that amount to a crime. The question is not

whether defendants know that victims intend to call for help; it is whether

defendants who commit domestic violence crimes should inherently know by

committing domestic violence they are creating circumstances whereby victims

may want to make that call. Thus, it is not difficult for defendants under these

circumstances to ascertain that their conduct prevents or attempts to prevent

victims from calling for help. This factor weighs in favor of concluding the offense

is a strict liability crime.

Seventh, we consider whether it would be “relieving the prosecution of

difficult and time-consuming proof of fault where the [l]egislature thinks it

important to stamp out harmful conduct at all costs, ‘even at the cost of

convicting innocent-minded and blameless people.’ ” Bash,

130 Wn.2d at 606

(quoting 1 LAFAVE & SCOTT, supra, § 3.8, at 341 (1986)). Courts have found this

factor to weigh in favor of strict liability when defendants could easily claim

36 No. 80045-1-I/37

another reason for their conduct. See State v. Mertens,

148 Wn.2d 820, 830

64 P.3d 633

(2003) (explaining that defendants charged with commercial fishing

without a license could “easily claim noncommercial intent”).

Christian argues the “State routinely proves a culpable mental state

beyond a reasonable doubt based on circumstantial evidence alone,” so

requiring the State to do so here would not be time consuming or difficult. The

State agrees that it frequently takes on the burden of proving a mental state but

also asserts the risk of convicting innocent minded persons is low because that

person had committed a domestic violence crime against the victim. The State

ultimately argues this factor “neither favors nor disfavors finding the crime has a

mental element.”

In the circumstance of domestic violence, defendants could easily claim

they did not know the victim wanted to call for help, and defendants could easily

claim another reason for their behavior. Christian’s own hypothetical provides an

example of that. It is doubtful that the legislature requires someone who is a

victim of domestic violence to have to alert the assailant that they wish to call for

help. The concern of convicting someone who is innocent minded and blameless

is remote because evidence must support beyond a reasonable doubt that the

person who interfered is the person who committed a domestic violence crime.

This factor weighs in favor of strict liability.

Eighth, we consider “the number of prosecutions to be expected.”

Bash,

130 Wn.2d at 606

37 No. 80045-1-I/38

Historically, some courts did not address this factor where the record did

not include the number of prosecutions or provide some form of statistical

analysis to show the number of expected prosecutions. See e.g., Anderson,