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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 88559-1 Respondent, ENBANC v. 

### DOUGLAS L. BAUER, Filed 

### JUL 17 2014 Petitioner.

GORDON McCLOUD, J.-TC, a child, took a loaded gun from the home where his mother lived with her boyfriend, Douglas Bauer. The gun belonged to Bauer. 1 

### TC brought that loaded gun to school in his backpack a few days after he stole it. The gun discharged as TC was rummaging in his pack at the end ofthe day. The bullet struckTC's classmate, and it seriously injuredher. The State charged Bauer with assault in the third degree, alleging that he, "[w]ith criminal negligence, cause[d] bodily harm to another person by means ofa weapon or other instrument or thing likely to produce bodily harm." RCW

1Bauer is not related to TC and is not TC's guardian. TC does not live with his mother and Bauer, butvisits.State v. Bauer (Douglas L.), No. 88559-1 9A.36.031(1)(d). Bauer moved to dismiss pretrial under 

### State v. Knapstad, 2 arguing that the facts did not support a third degree assault charge as a matter of law. The State argued that the statutory phrase "causes bodily harm" reached Bauer's conduct as a primary "cause" ofthe harm to TC's classmate. The trial court agreed with the State and denied the motion to dismiss butthen certified the matter to the CourtofAppeals. In a split decision, the Court ofAppeals upheldthe trial court's ruling. 

### State v. Bauer, 174 Wn. App. 59, 295 P.3d 1227 (2013). We
nowreverse the Court ofAppeals. FACTS On February 22, 2012, at about 1:30 p.m., the children at Armin Jahr Elementary School in Bremerton, Washington, were getting ready to go home for the day. As the teacher prepared to lead the children from the classroom to the school bus, she heard a loud pop. Looking around, the teacher saw one child bent
over with blood on her hands. She summoned other staff, and before long they realized thatthe bloodied childhadbeen shot. A staffmember noticed a backpack on TC's desk. It contained a gun. The backpack was identified as TC's backpack, and after the police arrived, TC was transported to a Youth Services Center for booking. Police later concludedthatthe

2 107 Wn.2d 346, 356, 729 P.2d48 (1986). 2State v. Bauer (Douglas L.), No. 88559-1
gun, a Heckler & Koch .45 caliber pistol, had discharged "while still inside the backpack." Clerk'sPapers (CP) at 86. Police interviewed TC several times. TC explainedthat he hadbeen visiting his mother and her boyfriend Bauer in their home for the pastthree years, since he
was six years old. He asserted that ever since he first visited, he had seen multiple guns accessible throughout the house. TC saidthat his mother and Bauertold him the guns were all loaded. Accordingto TC, the weekendbefore the shooting, as he
was leaving Bauer's house, he saw a gun on a bedroom dresser and "swiped the gun into his backpack." CP at 116.3 TC explained that he took the gun because
some classmates had "told him they were going to have teenagers come and beat him up." 

### Id. He asserted that the shooting was accidental. TC pleaded guilty in juvenile court to reckless endangerment and was sentenced to probation and counseling. Police also interviewed TC's mother and Bauer, along with TC's siblings. Their statements corroborate TC's statements that there were multiple unsecured and loaded guns aroundthe house.

3Bauer's Knapstadmotion to dismiss was based on the factual summary provided in defense counsel's affidavit attached to the motion. That factual summary was based on "areview ofthe police reports, discovery and other material receivedthus far from the Kitsap County Prosecutor's Office." CP at 49. The State does not dispute the version of the facts set forth in the Knapstadmotion. 3State v. Bauer (Douglas L.), 

### No. 88559-1
The State charged Bauer with assault in the third degree under the deadly weapon prong. That portion ofthe assault statute states that a person is guilty of third degree assault who, "[w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm." RCW 9A.36.031(1)(d). The State also charged Bauer with TC's unlawful possession of a firearm, relying on the complicity statute, which states in relevant part that a person is liable for the criminal conduct ofanother if, "[a]cting with the kind ofculpability that is sufficient for the commission ofthe crime, he or she causes an innocent or 

### irresponsible person to engage in such conduct." RCW 9A.08.020(2)(a). Bauer moved to dismiss both charges under Knapstad. 4 

### He also movedto dismiss the charges on vagueness grounds. The trial court granted the motion to dismiss the unlawful possession of a firearm charge, and the State did not appeal that decision. CP at 139. The trial court also denied the motions to dismiss the third degree assault charge. 

### Id. However, the trial judge recognized that this ruling "involves a controlling question oflaw as to which there is substantial ground for a difference ofopinion" and certifiedthe questions to the Court ofAppeals. CP at 142.

4 A defendant is entitled to dismissal ofcharges pretrial if "there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt." Knapstad, 

### 107 Wn.2d at 

### 356. 4State v. Bauer (Douglas L.), 

### No. 88559-1
The Court ofAppeals affirmed in a split decision. Bauer, 174 Wn. App. 59. Two judges concluded that the word "causes" in the third degree assault statute
was sufficiently flexible to present ajury question on whether Bauer "caused" the injury to TC's classmate by leaving a loaded gun where TC could access it. Id. 

### at 69-70. The two-member majority also held that the facts of the case did not preclude the State from seeking to convict Bauer under the complicity statute, RCW 9A.08.020. Id. 

### at 77. The majority rejected Bauer's vagueness argument. Id. 

### at 80-81. Bauer sought discretionary review by this court, and we granted it. State v. Bauer, 177 Wn.2d 1019, 304 P.3d 115 (2013). We hold that the third degree assault statute does not apply to Bauer's conduct. We further hold that the complicity statute does not expand the assault statute's reach to Bauer's conduct. Because we resolve the case on those grounds, we do not reach Bauer's vagueness challenge. ANALYSIS A. KNAPSTADMOTION 

### i. Standardof Review Under Knapstad, a defendant may move to dismiss a criminal charge on the ground that there are no disputed material facts and the undisputed facts do not establish a prima facie case ofguilt as a matter oflaw. Knapstad, 107 Wn.2d at 5State v. Bauer (Douglas L.), No. 88559-1


### 356-57. We review a trial court's decision on a Knapstad 

### motion de novo. See State v. Montano, 

### 169 Wn.2d 872, 876, 239 P.3d 360 (2010) (citing State v. Conte, 

### 159 Wn.2d 797, 803, 154 P.3d 194 (2007)). ii. Causation in CriminalLawIs Different from Causation in Tort 

### In this case, resolution of the Knapstad 

### motion turns on statutory interpretation-primarily, the meaning of the word "causes" in the third degree assault statute. RCW 9A.36.031(1)(d). The legislature has provided the following rule for interpreting such criminal statutes: "[t]he provisions ofthe common law relating to the commission of crime and the punishment thereof, insofar as not inconsistent with the Constitution and statutes ofthis state, shall supplement all penal statutes ofthis state ...." RCW 9A.04.060. The assault statute does not define the term "cause." We therefore turn to "the common law relating to the commission of crime and the punishment thereof' to supplement that provision. I

### d. Our court has ruled that "[b]efore criminal liability is imposed, the conduct of the defendant must be both (1) the actual cause, and (2) the 'legal' or 'proximate' cause ofthe result." State v. Rivas, 

### 126 Wn.2d 443, 453, 896 P.2d 57

6State v. Bauer (Douglas L.), No. 88559-1 (1995) (quoting 1 WAYNE 

### R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINALLAW § 3.12, at 392 (1986)). 5 "'Cause in fact refers to the "but for" consequences ofan act-the physical connection between an act and an injury."' 

### State v. Dennison, 115 Wn.2d 609, 624, 801 P.2d 193 (1990) (quoting

### Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985)). "Legal causation, onthe otherhand," involves a determination ofwhether liability

### should attach as a matter oflaw given the existence ofcause in fact. Ifthe factual elements of the tort are proved, determination oflegal liability will be dependent on "mixed considerations oflogic, common sense,justice, policy, and precedent." 

### Hartley, 103 Wn.2d at 779 (quoting 

### King v. City ofSeattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974) (citing 1 THOMAS ATKINS STREET, FOUNDATIONS OF LEGAL LIABILITY 100, 110 (1906))).6

5 Washington recognizes two elements of causation: cause in fact (sometimes called "actual" or "but for" cause); and legal cause (sometimes called "proximate" cause). Hartley v. State, 103 Wn.2d 768, 777-79, 698 P.2d 77 (1985) (citingHarbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 475, 656 P.2d 483 (1983)). In Washington, unlike otherjurisdictions, we call both ofthese elements together "proximate cause." Id. at 777. Note, however, that in Rivas, we used the phrase "legal cause" to mean the same thing as "proximate cause." Rivas, 126 Wn.2d at 453. In context, we did not mean "cause in fact," but the other type of causation. To be clear, this opinion will refer to the two differenttypes ofcausation as "legal cause" and "cause in fact" unless otherwise noted.
6Note thatthis case discusses legal causation in the civil, not criminal, context. 7State v. Bauer (Douglas L.), No. 88559-1
This court, in agreement with commentators and other jurisdictions, has observed that "as to cause in fact, tort and criminal situations are exactly alike." Dennison, 115 Wn.2d at 624 n.15 (citingLAFAVE & SCOTT,

### supra, at 397 n.31). Legal causation, however, is different. Commentators and courts recognize that criminal law and tort law serve different purposes and therefore have different principles of legal causation. "[W]ith crimes, where the consequences of a determination ofguilt are more drastic
... it is arguable that a closer relationship between the result achieved and that intended or hazarded should be required." 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW§ 6.4(c), at 472 (2d ed. 2003). "The wider doctrines of causation currently applied in tort law should not be extended to criminal law
.... [I]n criminal law,
... it is not normally enough merelyto provethat [the] accused occasionedtheharm; he musthave 'caused' itin the strict sense." H.L.A. HART & TONY HONORE, CAUSATION IN THE LAW 350-51 (2d ed. 1985); see 

### also JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 254-55 (2d ed. 1960) (noting that causation in tort may be much broader than causationin criminallaw).7

7 Some scholars hold contrasting views. See, e.g., HALL, supra, at 294-95 (describing Justice Holmes's view that identical policies underlie both tort and criminal law). 8State v. Bauer (Douglas L.), No. 88559-1


### Most states that have addressed the question agree that legal causation is defined more narrowly in criminal law than it is in tort law. The Pennsylvania Supreme Court explained, in the context offelony murder: A closer causal connection between the felony and the killing than the proximate-cause[8] 

### theory normally applicable to tort cases should be required because ofthe extreme penalty attaching to a conviction for felony murder and the difference between the underlying rationales of criminal and tort law. The former is intended to impose punishment in appropriate cases while the latter is primarily concerned with who shall bear the burden ofa loss. Commonwealth ex rel. Smith v. Myers, 

### 438 Pa. 218, 232, 261 A.2d 550 (1970). Cases from multiple jurisdictions, both state and federal, support this principle. E.g., United States v. Schmidt, 

### 626 F.2d 616, 618 n.3 (8th Cir. 1980) ("[W]e believe that proof of some more direct causal connection between act and result should be required in criminal cases than would be sufficient to uphold liability in tort."); Campbellv. State, 

### 293 Md. 438, 450-51, 444 A.2d 1034 (1982) ("[T]he tort liability concept ofproximate cause is generally too broad and comprehensive to be appropriate in a criminal proceeding
...."); People v. Kibbe, 

### 35 N.Y.2d 407, 413, 321 N.E.2d 773, 362 N.Y.S.2d 848 (1974) ("We subscribe to the requirement that the defendants' actions must be a sufficiently direct cause 

### ofthe ensuing death before there can be any imposition ofcriminal liability, and recognize, ofcourse,

8 Note that mostjurisdictions use the term "proximate cause" to mean something similar to what we call "legal cause"; whereas in Washington, "proximate cause" means both "cause in fact" and "legal cause"together. 9State v. Bauer (Douglas L.), 

### No. 88559-1
that this standard is greater than that required to serve as a basis for tort liability."); People v. Scott, 29 Mich. App. 549, 558, 185 N.W.2d 576 (1971) ("In criminal prosecutions there must be a more direct causal connection between the criminal conduct of the defendant and the homicide charged than is required by the tort liability concept ofproximate cause."). This court has never explicitly addressed whether "legal cause" is the same in both tort and criminal law. But a comparison ofWashington criminal and tort
cases shows that liability tends to extend further in tort cases. For example, in Schooley v. Pinch'sDeliMarket, Inc., we held that, as a matter ofpolicy, a vendor who sells alcohol to a minor may be the legal cause ofinjuries to a second minor who obtained the alcohol purchased by the first minor. 134 Wn.2d 468, 480, 951 P.2d 749 (1998). In Bronk v. Davenny, we held that liability could extend to a defendant who left a tractor operational and unguarded on his property, which was stolen by children who used it to cause damage to the plaintiffs property. 25 Wn.2d 443, 171 P.2d 237 (1946). And in Parrilla v. King County, a county bus driver left his bus with the engine running while there was a single passenger on board who was behaving in an obviously erratic manner. 138 Wn. App. 427, 430- 31, 157 P.3d 879 (2007). The passenger then got in the driver's seat and crashed the bus, causing injuries. 

### !d. at 431. The Court ofAppeals concluded that under those circumstances the county was not shielded from liability. I

### d. at 441. 10State v. Bauer (Douglas L.), 

### No. 88559-1


### No appellate criminal case in Washington has found legal causation based
on negligent acts similar to those in the civil cases above that were incapable of causing injury directly. This is apparent in the facts ofthe cases cited by the State in support ofits argument that it may charge Bauer with third degree assault. For example, in 

### State v. Leech, this court held that an arsonist "caused" the death ofa fire fighter who responded to the arson fire, despite the fact that the fire fighter may have been negligent in his fire fighting. 114 Wn.2d 700, 705, 790 P.2d 160 (1990). The arsonist, however, intentionally startedthe fire-clearly an intentional criminal act capable ofcausing harm in and ofitself. In 

### State v. Perez-Cervantes,
we held that a person who stabs another may be liable for the other's death even if drug abuse also contributed to the death. 141 Wn.2d 468, 6 P.3d 1160 (2000). In contrast to this case, that defendant performed an intentional criminal actstabbing-which directly caused harm. And in 

### State v. Christman, the Court of Appeals applied causation principles to determine that a person who gives illicit drugs to another may be liable for the other's death from overdose even if other drugs from another source also contributed to the death. 160 Wn. App. 741, 249 P.3d 680 (2011). Once again, the initial act was not only intentional, but felonious, and capable ofcausing harm in and ofitself. Bauer's act ofgun ownership, in contrast, is not felonious or criminal. His decision to keep loaded weapons around the house is not, in itself, a crime in this 11State v. Bauer (Douglas L.), No. 88559-1


### state, either. The most analogous criminal case that we have found is from Iowa: State v. Ayers, 478 N.W.2d 606 (Iowa 1991). In that case, Ayers was a firearm vendor convicted ofinvoluntary manslaughter for selling a gun to a minor. 

### I d. at 607. The minor accidentally shot and killed his girl friend a few days later. I

### d. The court held, "More is required than appears here to support a showing of proximate cause in a manslaughter case. The missing ingredient is a more direct connectionbetweenAyers andthe act whichkilled the young victim." 

### Id. at 608. Neither party has identified a Washington case upholding criminal liability
on facts like the ones on which the Bauer prosecution is based. This court has found no Washington case upholding such liability, either, where the accused did not actively participate in the immediate physical impetus ofharm. Cf HART & 

### HONORE, supra, at 326 ("[W]here [the first actor's] conduct was not sufficient [to bring about the harm] without the intervention of the second actor . . . most decisions relieve the first actor ofresponsibility."). In light ofthe scholarly literature, our case law, and case law from foreign jurisdictions, we hold that "legal cause" in criminal cases differs from, and is
narrower than, "legal cause" in tort cases in Washington. iii. Liability DoesNotAttach to Bauer in This Case As discussed above, there is no criminal case in Washington upholding criminal liability based on a negligent act that has such intervening facts as in this 12State v. Bauer (Douglas L.), No. 88559-1

case between the original negligence and the final, specific, injurious result. More tellingly, even in analogous civil cases, we have declinedto extendliability so far. For example, in Sailor v. Ohlde, this court addressed whether "the owner of
an automobile who leaves the key in the ignition switch [can be civilly] liable for injury or damage caused by a stranger who enters upon private property and steals the automobile." 71 Wn.2d 646, 647, 430 P.2d 591 (1967). We answered the question no. 

### !d. In Pratt 

### v. Thomas, we reached the same conclusion regarding an accident involving a car stolen from a public parking lot. 80 Wn.2d 117, 118, 491 P.2d 1285 (1971). Characterizingthe question as one of"proximate cause," we held: Here 

### it is plain the accident which caused plaintiff's injuries was not a part ofthe natural and continuous sequence ofevents which flowed from respondents' act in leaving their station wagon in the parking lot. It was the result ofnew and independent forces. Among the new forces were the stealing ofthe vehicle, the pursuitbythe state patrol, the attempt by the thieves to run from the officers and, finally, the accident. 

### !d. at 119. We acknowledge that this summary could be characterized as addressing cause in fact, legal cause, or both.9 The court did not distinguish

9 For example, the language "natural and continuous sequence of events which flowed from the act" is similar to language often associated with legal, rather than factual, causation. E.g., 1 CHARLES E. TORCIA, WHARTON'S CRIMINAL LAW § 26, at 147-48 (15th ed. 1993). But the language regarding "new and independent forces" is, under Washington case law, a part ofthe factual inquiry. See Lowman v. Wilbur, 178 Wn.2d 165, 172, 309 P.3d 387 (2013). 13State v. Bauer (Douglas L.), No. 88559-1


### between the two, and we had not yet decided Hartley, 

### which clarified the two different kinds of causation. Still, this court found that "proximate cause" was lacking. Id. 

### Likewise, in Kim v. BudgetRentA Car Systems, Inc., 

### we held that causation
was lacking where a car rental company left a car unlocked in its parking lot with keys in the ignition, the car was stolen, and the thiefcaused injuries in an accident the following day. 143 Wn.2d 190, 15 P.3d 1283 (2001). We stated that "[a]t a minimum, the remoteness in time between the criminal act and the injury is dispositive to the question oflegal cause in this case." I

### d. 

### at 205. We explained that "[e]ven ifit were negligent for Budget to leave the keys inside ofits minivan, 'theresponsibility for such negligence mustterminate at some time in the future
...

."' Id. 

### (quoting Gmerek v. Rachlin, 

### 390 So. 2d 1230, 1231 (Fla. Dist. Ct. App. 1980)). We therefore concluded that legal cause was lacking because "Young went home, went to sleep, and became intoxicated before criminally causing the accident injuring plaintiffthe day after the theft." I

### d. 

### In addition, we noted that where otherjurisdictions had found liability, "most have not involved the type of attenuated facts presenthere." Id. 

### Finally, the Washington tort case most closely analogous to the one at hand, McGrane v. Cline, 

### also supports our holding that Bauer is not liable for third degree assault in this case. 94 Wn. App. 925, 973 P.2d 1092 (1999). InMcGrane, 

### 14State v. Bauer (Douglas L.), No. 88559-1



### a teenage daughter took the parents' firearm from their home, gave it to a friend, the friend used itto commit arobbery, and he fatally shot athirdperson during that crime. Id. 

### at 926-27. The Court ofAppeals ruled that the parents were not civilly liable for that result. Id. 

### at 928-29. Although that case was decided on grounds of duty, there is a well-recognized "interrelationship between questions ofduty and legal cause." Lowman v. Wilbur, 

### 178 Wn.2d 165, 169, 309 P.3d 387 (2013). Just as in McGrane, 

### the firearm here was taken, without the owner's permission or knowledge, by a minor child and later used to cause serious harm. Similar to Kim, 

### two days passed between TC taking the gun from Bauer on Monday afternoon and the shooting at school on Wednesday afternoon. McGrane, Kim, 

### and its companion cases Sailor 

### and Pratt 

### are civil cases, not criminal cases. No criminal case in Washington has found liability on such attenuated facts as those in this case. Because legal causation in civil cases is broader and more flexible than it is in criminal cases, these civil cases compel the conclusion that legal causation is not satisfied as to Bauer in this case. B. CRIMINALLIABILITYFORACTS OF A THIRDPARTY 

### Bauer asserts that where injury is caused by a third party, the State may charge a person other than that third party with a crime only under the complicity statute and that the complicity statute does not reach Bauer's conduct. See 

### RCW 9A.08.020 ("Liability for conduct of another-Complicity" (boldface omitted)). 15State v. Bauer (Douglas L.), No. 88559-1


### The State responds that it is not charging Bauer for another's conduct, it is charging him with his own conduct-leaving loaded guns around with children present. The Court ofAppeals found that the State could rely on both principal and complicity liability. Bauer, 174

### Wn. App. at 76-77. 

### We need not decide whether the State can ever 

### charge a person, as a principal, for harm that is the immediate result of a third party's actions. As discussed supra 

### Part A.iii, immediately above, the State cannot do so on the facts ofthis case. As to the second point-whether complicity liability is available in this case-the Court ofAppeals is mistaken. Under the undisputed facts ofthis case, the State cannotrely on the complicity statute. 10 

### The complicity statute establishes vicarious criminal liability in three situations: accomplice liability (RCW 9A.08.020(2)(c)); when a criminal statute itself expressly provides for vicarious liability (RCW 9A.08.020(2)(b)); and by "caus[ing]" an innocent person to do the illegal act (RCW 9A.08.020(2)(a)). The Court ofAppeals first noted, correctly, that the State could not rely on accomplice liability under the subsection (2)(c) prong. For accomplice liability to attach, the

10 The State has represented to this court in its supplemental briefing that "the State is not arguing that Bauer should be held responsible for the actions of another pursuant to RCW 9A.08.0[2]0." Suppl. Br. ofResp't at 19. But it does not need to charge accomplice liability to seek an accomplice liability instruction, and the Court of Appeals addressedthe availability ofsuch an instruction. Bauer, 174 Wn. App. at 77. 16State v. Bauer (Douglas L.), No. 88559-1


### defendant must have knowledge that his actions will "'promote or facilitate"' the commission of 

### "'the"' particular crime at issue. 

### State v. 

### Stein, 144 Wn.2d 236, 245, 27 P.3d 184 (2001) (quoting RCW 9A.08.020(3)(a)). Because there is no evidence ofsuchknowledge inthis case, the Court ofAppeals held, the State could not seekto convictBauer as an accomplice. We agree. The Court of Appeals did not separately discuss vicarious liability under prong (2)(b). That was appropriate. Prong (2)(b) seems to refer the reader backto the language ofthe statute defining the substantive crime, which, in this case, we have already analyzed, above. The Court of Appeals concluded, however, that the State could seek to convict Bauerunder the "innocent or irresponsible person" prong ofthe complicity statute, that is, RCW 9A.08.020(2)(a). 

### Bauer, 174 Wn. App. at 77. Under that prong, a person is guilty of a crime ifit is committed by the conduct of another when, "[a]cting with the kind ofculpability that is sufficient for the commission of 

### the crime, he or she causes an innocent or irresponsible person to engage in such conduct." RCW 9A.08.020(2)(a) (emphasis added). Prong (2)(a) does not require intent, only "culpability that is sufficient for the commission ofthe crime." Id. 

### Since a third degree assault charge requires only a culpability of criminal

17State v. Bauer (Douglas L.), No. 88559-1 negligence, 11 the Court of Appeals reasoned that Bauer could be liable for TC's conduct ifhe causedthat conduct: Here, the State
... has produced evidence that would support ajury's determination that Bauer caused TC's conduct. While 

### it is not clear that the State will seek to instruct thejury under this section in this case, the facts ofthe case at this stage do not preclude it from doing so. Bauer, 174 Wn. App. at 77. It is not completely clear to what evidence of causation the Court ofAppeals is referring to, but it appears to mean the evidence thatBauer left guns lying around. 12 The Court ofAppeals's reasoning fails to take account oftwo things. First, RCW 9A.08.020(2)(a) requires proofthat the defendant acted with the same mens
rea as that required for "the crime." We have previously interpretedthe words "the crime" in other subsections ofthe complicity statute very narrowly. We have said that "the crime" means intent to promote the crime that was actually charged, not

11 The trial court dismissed the State's charge ofunlawful possession ofa firearm, the State did not appeal that decision, and it is therefore not before us. We note, however, that "knowing possession" is an essential element of the crime of unlawful possession of a firearm. State v. Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000). Thus it seems likely that even ifthe charge had not been dismissed, the State would not have been able to show that Bauer was liable for TC's possession ofa firearm under the complicity statute. 12 The Court of Appeals did not address whether TC was an "innocent or irresponsible" person; since the record is insufficient for us to make that determination, we do not address it either. Bauer notes, however, that TC did plead guilty to criminal reckless endangerment in a separate case, which has a mens rea of recklessness, not innocence. 18State v. Bauer (Douglas L.), No. 88559-1 

### just any crime. State v. Cronin, 

### 142 Wn.2d 568, 579, 14 P.3d 752 (2000); State v. Roberts, 

### 142 Wn.2d 471, 510-11, 14 P.3d 713 (2000). Using that same narrow interpretation here, we find evidence of such mens rea was lacking. Bauer may have been negligent about leaving loaded guns out in the presence ofchildren. TC may have been negligent about enabling a gun enclosed in a backpack to discharge. Bauer's negligence was thus notthe same as the culpabilityrequired for "the crime"; it mighthave been equally negligent, butnot as to the same act, result, and balancing ofcosts and benefits. Any negligence on Bauer's partthus does not meet the definition of culpability for "the crime" required by RCW 9A.08.020(2)(a). Since any negligence on his part was not "culpability
... sufficient for the commission ofthe crime," id., 

### Bauer cannotbe liable underprong (2)(a).Second, there is a difference between "caus[ing]" a particular result and "caus[ing]" another actor to engage in conduct-and the latter is what RCW 9A.08.020(2)(a) requires. State v. Chester, 

### a case much cited by Bauer, illustrates this distinction. 133 Wn.2d 15, 940 P.2d 1374 (1997). There, we analyzed the meaning of"cause" in a different statute, RCW 9.68A.040(1)(b), that criminalizes "caus[ing] a minor to engage in sexually explicit conduct." We held that to "cause" a child to engage in sexually explicit behavior "requires some affirmative act of assistance, interaction, influence or communication on the part of a 19State v. Bauer (Douglas L.), No. 88559-1


### defendant which initiates and results in a child's display of sexually explicit conduct." Chester, 

### 133 Wn.2d at 22. The legislature probably intended "cause" to
mean the same thing in the statute at issue here, RCW 9A.08.020(2)(a), that criminalizes "caus[ing] an innocent or irresponsible person to engage in [illegal] conduct." Butthere is no evidence ofany such interaction here that would permit
a finding that Bauer "caused" TC to take a gun to school. See 

### id.; HART & 

### HONORE, supra, 

### at 363-64, 368 (discussing the significant difference between causing a result and causing another actor to engage in behavior); see also 

### id. at 367 ('"causing' a person to act refers to a species of the genus 'inducing' or 'instigating'"). We hold that the Court ofAppeals erred in determining that Bauer could be liable underRCW 9A.08.020(2)(a). CONCLUSION The legislature defined the crime ofthird degree assault to reach a person who "[w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm." RCW 9A.36.031(1)(d). Bauer asserts that the State has failed to make aprima facie case that his conduct ofleaving guns around his house loaded and accessible to invited children "caused" the bodily harm here. We agree. Although causation in fact is the same in criminal and civil cases, legal causation is not. Our case law suggests 20State v. Bauer (Douglas L.), No. 88559-1
that legal causation does not extend as far in criminal cases as it does in tort cases, and even our civil cases do not extend liability as far as the State seeks to do in this
case. We therefore reverse the decision ofthe CourtofAppeals.

21State v. Bauer (Douglas L.), No. 88559-1



### WE CONCUR:



### 22State v. Bauer (Douglas), No. 88559-1 (Gonzalez, J. dissenting)

No. 88559-1 GONZALEZ,J. (dissenting)-Douglas Bauerkeptmultiple loadedguns unsecuredthroughouthis house. Theseweapons were easily accessible to his girl friend's minorchildren, including TC, a nine-year-oldboywho frequently visited and sometimes stayedthenight. Unsupervised, TCputone ofBauer'shandguns intohis backpack. Two days later, thatgun, still inTC'sbackpack, discharged in a classroom, seriouslyinjuring one ofTC's classmates. Bauerdidnotnotice his handgunwas missinguntil after the shooting. Themajoritybelievesthatbecausenine-year-old TC didnothavepermissionto takethe weapon andbecausetwo days elapsedbetweenthe taking andthe subsequent shooting, Bauer'scarelessness couldnot, as a matteroflaw, bethe cause ofthe victim's serious injury. See majority at 15, 20. I disagree. The delayinBauernoticing thathis gunwas missing is itselfevidence ofhis negligence. Though ajurymaywell find Bauer's actions tobetoo attenuated from the victim's injuryto impose criminal liability as a matter offact, whether criminal liabilitycan attach as a matter oflawis a policyquestionfor the legislature. Thelegislaturehas 1State v. Bauer (Douglas), No. 88559-1 (Gonzalez, J. dissenting) made thispolicyjudgmentinRCW9A.36.03l(l)(d). It is neitherunreasonablenor unwiseto allow ajuryto decide ifitwasthe firearm owner's criminalnegligence that caused thehandgunto bebroughtto school, to be accidentally discharged, and to seriously injure the young victim. Sincethemajoritybelieves otherwise, I respectfully dissent. Theissuebeforeus is a novel one. As the majoritynotes, no Washington appellate courthas weighed inon the lawful extent oflegal cause inthe contextofthe third degree assault statute. Id. at 10-12. Butthat "[t]his courthas found no Washington caseupholding
. . . liability
. . . wherethe accused didnot actively participate inthe immediatephysicalimpetus ofharm" is not a compelling argument againstwhetherthe legislature intendedto criminalize this sort ofcarelessness. Id. at 12. Itis well settledthatlegal causation "rests onpolicy considerations as to how far the consequences ofdefendant's acts shouldextend. It involves a determination of whetherliabilityshouldattach as a matteroflawgiventhe existence ofcause infact." Hartley v. State, 103 Wn.2d 768, 779, 698 P.2d 77 (1985). Inthe context ofcriminal law, that question is for the legislature, and ithas answered it. Given scientificresearch on the topic, it is clearthe legislativepurpose ofRCW 9A.36.031(1)(d) wouldbebest servedbyletting ajurydecide whether a firearm
owner is liable for anunintended shootingthat is theresult ofayoung childpicking up a carelessly storedhandgun. Inone study, scientists monitorednumerous small groups of8- to 12-year-oldboys in aroomthathadtwo waterpistols concealed in one 2State v. Bauer (Douglas), No. 88559-1 (Gonzalez, J. dissenting) drawer and an actual handgun concealedin another. GeoffreyA. Jackman et al., SeeingIs Believing: WhatDoBoysDo When They FindaRealGun?, 107 PEDIATRICS 1247, 1247-48 (2001).1 Theresearchers limitedthe studyto boys in this age rangebecausethey are "ahigh-risk group for unintentional fire-arm injury." 

### !d. at 1248. The scientists found that75 percent oftheboys found thehandgun within 15 minutes, 63 percent oftheseboyshandledit, and 33 percent ofthem actuallypulled the trigger enoughto dischargetheweapon. 

### !d. Overall, the "results suggestthat 8- to 12-year-oldboys cannotbetrustedto refrain from handling ahandgun ifthey encounter one outsidethe immediate supervision ofan adult." 

### !d. at 1250. A different study, whichmeasuredthe association ofhousehold firearm storage practices and the risk ofunintentional and self-inflicted injuries associatedwith child
or adolescent access to firearms inthe home, also supports the conclusionthatwe shouldnotpreclude liability on legal causation grounds. See David C. Grossman et al., Gun StoragePractices andRiskofYouth Suicide and UnintentionalFirearm Injuries, 293 JAMA707,708-10 (2005).2 There, researchers found that "storing household guns as locked, unloaded, or separate from the ammunition [was] associated with significantreductions in the risk ofunintentional and self-inflicted firearm injuries and deaths among adolescents and children." 

### !d. at 714. Inother words, andnot surprisingly, this surveyrevealedthat guns thatwerekeptloaded,

1Available at http://pediatrics.aappublications.org/content/107/6/1247.full.pdf(subscription required). 2Available at http://jama.jamanetwork.com/data/Journals/JAMA/4963/JOC32162.pdf. 3State v. Bauer (Douglas), No. 88559-1 (Gonzalez, J. dissenting) unsecured, and accessible to children were involved in accidents far more frequently thanthose thatwere not. Id. Givenboth science and common sense, I find the legislature's inclusion of criminal negligence as aproperbasis for an assault charge as permitting ajuryto determine ahandgun owner's liability in situations such as this. Thejurywouldbe able to consider all ofthe relevant circumstances, including the age and maturity of the child, the child's familiarity with fireanns, and theprecautions the.firearm owner took or did nottaketo determine ifthe firearm owner's conduct amounts to criminal negligence. Whatthe majority believes to be the intervening actions and attenuating circumstances inthis case are the natural and foreseeable consequences ofthe very danger thatBauer's careless actions created. TC'spickingup the handgun and Bauer's failure to notice are not intervening
causes inthe ultimate injury. Likethe majority, I do notbelieve "Bauer's act ofgun ownership" or "[h]is decisionto keep loaded weapons aroundthehouse" is in itself criminal. See majority at 11-12. But it need not be. Third degree assaultpredicated
oncriminal negligence does not require an underlying illegal act or an intentional act butmerely criminal negligence thatresults in bodily harm. RCW9A.36.031(1)(d). Byits plain language, the purpose ofthe statute is to impose liabilitywheninjury is caused by criminal negligence, not criminal intent or felonious action. Id. A defendant can face liability for criminal negligence "whenhe or she fails to be aware ofa substantialriskthat awrongful act may occur and his orher failure to be aware of 4State v. Bauer (Douglas), No. 88559-1 (Gonzalez, J. dissenting) such substantialrisk constitutes a gross deviation from the standard ofcarethat a reasonableperson would exercise inthe same situation." RCW 9A.08.010(1)(d). TC's actions are not distinct from Bauer's carelessness for legal causationpurposes. WhenBauer's gun ownership and method ofstorage is combined withthe known presence ofanunsupervisednine-year-oldboy, especiallywhen coupledwith a failure to notice theunsecured weapon was missing, ajury, not ajudge, should decide ifthis created a substantialriskthat a wrongful act may occur. Findingthat TC'staking the gun withoutBauer'spermissionwas an intervening action, as the majority does, tacitly shifts the ultimate responsibility for the victim's injury to anine-year-old child. Notonly do I find this troubling in light ofbehavioral science, but also I agree withthe legislature that "[c]hildrenofeight and undertwelve years ofage are presumedto be incapable ofcommitting crime." RCW 9A.04.050. Thoughthis presumptionmaybe removed, see id., and I do not seekto address the appropriateness ofthe liability imposed onTC, it is unsettling that TC, as
amatter oflaw, will face more criminal culpability inthis situationthanBauer. At its core, this case comes downto considerations ofsoundpolicy. Bauerkept
a loaded, unsecured handgun in aroom that an unsupervised nine-year-old boy could
access freely. Bauer also did notnoticethatthis loaded weaponhad beentaken for two days as TCtoted it in his backpackto and from school. Giventhatboth science and common sense strongly suggestthatBauerwas in the bestpositionto preventthe injury to TC's classmate andthat his conductwas its primary cause, I would not 5State v. Bauer (Douglas), No. 88559-1 (Gonzalez, J. dissenting) preclude Bauer's liability on legal causation grounds and would allow ajuryto resolve the matter. Withthese observations, Irespectfully dissent.

6State v. Bauer (Douglas), No. 88559-1 (Gonzalez, J. dissenting)

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