### FILED AUGUST 3, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STA TE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
V. LANCE THEOPOLIS SMITH, Appellant. ) ) ) ) ) ) ) ) ) No. 34153-4-111

UNPUBLISHED OPINION

FEARING, C.J. -AsRichland Police OfficerDrewFlorence assisted in restraining Lance Smith, Smithreared his head and struckFlorence, underFlorence's eye, withhis head. From a conviction for third degree assault, Smith appeals and contends the State lacked sufficient evidence to convict himbecausethe evidence did notprove he intended to assaultthe officer. We disagree and affirm Smith's conviction. FACTS Theprosecution ofLance Smith arises from his reaction to arrest onJuly 16, 2014. Onthe morning ofJuly 16, Darryl Smith, Lance Smith's father, noticed his vehicle missing and phonedthe Richland Police Departmentto reportthe car stolen. DarrylNo. 34153-4-III State v. Smith

Smith suspected one ofhis children appropriated the vehicle. In the early afternoon of the same day, Lance Smith returned his father's vehicle to the father's apartment and immediately departed the residence on foot. Darryl Smithnotified the police department that his son returned the vehicle. In addition, he informed the police that his son acted aggressively and Darryl's mother, Lance Smith's grandmother, left the apartment because ofconcern for her safety. Richland Police OfficerJoe Brazeauresponded to Darryl Smith's second call. Dispatch informed Officer Brazeauthat Lance Smithreturned a stolen vehicle to his father's house and was causing a disturbance at the home. Dispatch also relayed that Smith recently left his father's home and walked westbound on ColumbiaPark Trail. Officer Joe Brazeau located Smith in the parking lot ofKimo's Restaurant. He asked Smith questions about his father's vehicle and the disturbance at the house. Smith grew agitated. Smith stared at Brazeau, leaned toward Brazeau, flexed his muscles, and answered questions in a loud voice. Brazeau announced to Smith that he was being detained. Smith yelled that he (Smith) was detained. Smithrepeatedly talked nonsensically. He asked Brazeau ifhewas a king or had a vagina. Kennewick Police Officers Rebecca Jones and Josh Sullivan arrived shortly to assist Officer Joe Brazeau. On the arrival ofpolice assistance, Lance Smith's aggressive behaviorprogressively worsened. Smith lost self-control. Dispatch informed Officer Brazeau that probable cause supported an arrest ofSmith for taking his father's vehicle. 2

# I 

# I !. ;, ; 

## 1 

# l

i 

### No. 34153-4-111 State v. Smith

Brazeau recognizedthe futility offurther dialogue with Smith. Accordingly, Brazeau arrested Smith for stealinghis father's vehicle. Brazeau grabbed Smith'swrist to handcuffhim, but Smith spun in an attempt to break contact. Smith disobeyed all of Brazeau's verbal commands. Officers Jones and Sullivan assisted Brazeauin taking Smith to the ground. Smith resisted by fighting and swinging to escape from Brazeau's grip. Brazeauperformed several knee strikes to Smith's lowerback and buttocks to gain control. Eventually, the officers handcuffed Smith. Meanwhile, Richland Police Officers Jason Crouch and DrewFlorence reported to the scene. The group ofofficers lifted Smith from the ground. Officer Crouch frisked Lance Smith for weapons and contraband. Crouchheld Smith's right arm while searching the right side ofhis body. OfficerFlorence approached Smith from an angle to assist Crouch. As Florence stepped toward Smith, Smithreared and swung his head and hit Florence underneath the eye with his forehead. Smith inflicted no permanent damage, but Florence's face swelled and temporarily turned red. After seeing Lance Smithhead butt OfficerDrew Florence, Officer Jason Crouch grabbed Smith by the hair and pushed him onto the patrol car. The officers soon recognized the high heat in the patrol car, so they relocated Smithto the pavement after placing a sweatshirt underneath him. Crouch then placed a pair ofhobble restraints on Smith, which restricted the movement ofhis feet. The officers lifted Smith offthe



### 3No. 34153-4-III State v. Smith ground and transferred himto the inside ofthe now coolerpatrol car. OfficerJoe Brazeau transported Smithto Kadlec Regional Medical Center for medical evaluation. Richland OfficerJason Crouch later spoke with Darryl Smith, Lance Smith's father, about the stolen vehicle. Darryl Smith indicatedthathe did not wish his son prosecuted for taking the vehicle. PROCEDURE The State ofWashington charged Lance Smith with assault in the third degree. The trial courtrepeatedly continued trial dates due to concerns about Smith's competency to stand trial. The State requested, and the trial court granted, requests for competency examinations at Eastern State Hospital. Dr. Nathan Henry, a licensedpsychologist, 

### " initially evaluated Smith and diagnosed him with bipolar disorder, manic and psychotic features. Dr. Henry informedthe court that Smith lacked the capacity to understandthe legal proceedings against him orparticipate in his own defense. Smith's last evaluation, by licensed psychologist Dr. C. O'Donnell on December21, 2015, showed no presence ofmental health symptoms and concluded that Smith possessed sufficient ability to consult with his lawyer in the criminalproceedings. The trial court found Smith competentto stand trial. Lance Smith'sjurytrial commenced on February 1, 2016. Atthe proceeding, Lance Smith wore makeup on his face resembling the Joker, the fictional supervillain character featured 'in Batman comic books. The State called sixwitnesses: Darryl Smith 4No. 34153-4-III State v. Smith

and police officers Joe Brazeau, Rebecca Jones, Josh Sullivan, Jason Crouch, and Drew Florence. This appeal requires a review ofeachpolice officer's testimony regarding the physical contact between OfficerDrewFlorence and appellant Lance Smith. Richland Police OfficerJoe Brazeau described that, during OfficerJason Crouch's frisk ofSmith, "at some pointMr. Smith basically leapt up, swung his head, and struck OfficerFlorence in the face." Report ofProceedings (RP) at 64. Kennewick Police OfficerRebecca Jones testified that she observed Smith "abruptly [thrust] his upper body into the air and in kind oflike a backwards motion (indicating)." RP at 84. Kennewick Police Officer Josh Sullivan averred that, as he checked Smith's handcuffs, he saw Smith tense andjump. Sullivan characterized thejump as "amule kick, what we would have done in gym as kids." RP at 99. Officer Sullivan did not see Smith's head strike Florence because Sullivan focused his sight on Smith's legs. Richland Police Officer Jason Crouch testified to witnessingLance Smith strike Richland Police OfficerDrew Florence with his head. Crouch acknowledged that Smith squirmed during the search incident to arrest. Crouch declared that "OfficerFlorence

came in to assist, and as OfficerFlorence leaned in to help Mr. Smith headbutted Officer Florence on the face." RP at 110. He added that he "actually saw [Smith] lunge forward and strike OfficerFlorence in the head with his forehead." RP at 118. The alleged victim, Richland Police OfficerDrew Florence, testified: 

### 5No. 34153-4-111 State v. Smith Q. Okay. So, as you got out ofyour carwhere did you go? A. I walked overto where the other officers were, and there were several of'em standing around near anotherpatrol vehicle. Q. Didyou say anything to anyone or did youjust start helpin' out? A. No. I wasjustkind of, you know, tryin' to figure out something that needed to be done. I saw that Officer Crouchwas tryin' to search a male subject, the one who was handcuffed, and he was tryin' to kind ofhold on to his right arm at the [same] time as trying to search him. So, I wentto go and kind oftake control ofthe male's arm so I could focus on searching him for weapons andthings ofthat nature. Q. Whathappened when you reached outto grab his arm? A. So, I was aboutthree feet away, and as I wentto step towards him he kind ofreared up and with his head using a swinging motion struck me underneath my eye (indicating) with his forehead (indicating). Q. Youwere approaching from the front? A. Yeah. Kind of-yes, the front, but also offto the side. Kind ofat an angle. 

### Q. When you say he swung, what do you mean? A. Well, hejustkind ofused his head and neck in a swinging motion (indicating) and kind ofthrew his body weight forward is I guess how I would describe it. Kind oflurched forward. RP at 129-30. In further testimony, OfficerDrewFlorence recalled events transpiring quickly, butremembered Smith movingtoward him. Florence said "I sawhim coming at me, but when he hit me-it doesn't happen every day. So, itjusttook me a secondto kind of figure out whathappened." RP at 137. Officer Florence also recounted a conversation he overheard at Kadlec Regional Medical Centerbetween Smith and one ofSmith's treating physicians. In response to a question from the physicianregarding what occurred, Florence heard Smithreply: "he had 'headbutted a police officer' and thathe 6

### No. 34153-4-111 State v. Smith 

### probably shouldn'thave done that." RP at 132. Lance Smith testified in his defense. Smith asserted that he did not intentionally strike Officer Drew Florence. He said that he "got spooked and itjustlike bumped him right under the eye." RP at 152. 

### Smith explained that "[o]ne ofthe cops goes, 'Didhe justhead butt you?' and I look at him like, 'No, guys.' He goes, 'Yeah, I think he head butted me,' and they go, 'Oh, you're goin' down,' and they said something like that." RP at 153. 

### He claimed that he did not hear Officer Florence approaching him. "Ijustlooked

over and his face was right there (indicating)-andIjustwent like that (indicating)-and literally his face was right here (indicating)." RP at 156. 

### Smith clarified Florence's account ofthe conversation that transpired with him and his doctor at Kadlec Regional Medical Center. Smith remembered telling the doctor that "[s]ome cop told me Ihead butted [one ofthe police officers]. I didn't, and theyjustbeat the crap out ofme." RP at 158. 

### The trial court instructed thejury that, in order to convict Lance Smith, it must find beyond areasonable doubt that (1) 

### on or about July 16, 2014, 

### Smith assaulted Drew Florence, (2) at the time ofthe assault, Officer Florence was a law enforcement officer or other employee ofa law enforcement agency who was performinghis official duties, and (3) that any ofthese acts occurred in the State ofWashington. Ajury instruction defined "assault" as:

7No. 34153-4-III State v. Smith

An assault is an intentional touching or striking ofanother person, with unlawful force, that is harmful or offensive regardless of whether any injury is done to the person. A touching or striking is offensive ifthe touching or striking would offend an ordinaryperson who is not unduly sensitive. Clerk's Papers (CP) at 181. Another instruction declared: "[a] person acts with intent or intentionally when acting with the objective orpurpose to accomplish a result that constitutes a crime." CP at 182. Thejury found Lance Smith guilty ofassaulting OfficerDrew Florence. The trial court sentenced Smithto three months' confinement and up to twelve months of community custody. LAWAND ANALYSIS The sole issue on appeal is whether the State presented sufficient evidence from which thejury could infer that Lance Smith acted with intent when he assaulted Officer DrewFlorence. We conclude that the State presented sufficient evidence. We review familiar principles ofsufficiency ofevidence. Evidence suffices to convict, if, after viewing it in the light most favorable to the State, a rational trier offact could find each element ofthe crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). A defendant challenging sufficiency ofthe evidence at trial admits the truth ofthe State's evidence and all reasonable inferences therefrom. State v. Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888 (2014). This court defers to the fact finder's credibility determinations and determinations ofthe 8No. 34153-4-111 State v. Smith persuasiveness ofthe evidence. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). RCW 9A.36.031 creates the crime ofthird degree assault. The statute reads: (1) A person is guilty ofassault in the third degree ifhe or she, under circumstances not amounting to assault in the first or second degree:

... (g) Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time ofthe assault. Lance Smith did not contesthe made physical contact with a law enforcement officer. Therefore, in order to convictLance Smith ofassault in the third degree, thejury needed to find thatthe State provedbeyond a reasonable doubt that Smith intended to assault Officer Drew Florence. State v. Brown, 140 Wn.2d 456, 467-68, 998 P.2d 321 (2000). A person acts with intent when he or she acts with the objective orpurpose to accomplish a result constituting a crime. RCW 9A.08.010(1)(a). The trial courtproperly instructed thejurythat "[a] person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime." CP at 182. Intent "canbe inferred as a logical probability from all the facts and circumstances." State v. Wilson, 125 Wn.2d 212,217,883 P.2d 320 (1994). Ajury may infer that a defendant acted with intent even without direct evidence. State v. Bea, 162 Wn. App. 570, 579, 254 P.3d 948 (2011). Ajury may infer criminal intent from a defendant's conduct where it is plainly indicated as a matter oflogical probability. This includes

9 

### f 

# .No. 34153-4-III State v. Smith inferring orpermissibly presuming that a defendant intends the natural and probable consequences ofhis orher acts. State v. Bea, 162 Wn. App. at 579 (citations omitted). Lance Smith argues that the State's evidence only shows he struck OfficerDrew Florence in the face andnotthat his conduct was intentional. He further argues thatthe jury did notrely on facts orinferences from the facts, butrather speculatedthat he acted intentionally. We disagree. While Smith testified that the contact was accidental and he did not head butt OfficerFlorence intentionally, thejuryheldthe prerogative to determine the credibility ofhis testimony. Thejurywas entitledto discredit Smith's account and creditthe evidence in favor ofthe State. Despite the State's failure to directly question its witnesses regarding intentionality, the evidence presented, viewed in favor ofthe State, is sufficientto establish intent. Intent may be drawn from an actor's conduct. State v. Bea, 162 Wn. App. at 579 (2011). The State likely couldpresent no direct evidence ofintent, since a witness may nottestify to another's state ofmind. Perry

v. Brakefield, 534 So. 2d 602, 608 (Ala. 1998); Combs v. Fantastic Homes, Inc., 584 S.W.2d 340, 344 (Tex. Civ. App. 1979); Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App. 1977); Taylor v. Roach, 302 So. 2d 327,331 (La. Ct. App. 1974); Medina v. Sherrod, 391 S.W.2d 66, 69 (Tex. Civ. App. 1965); De Santis v. Massachusetts Bonding & Ins. Co., 289 Mass. 315,194 N.E. 136,139 (1935).

10No. 34153-4-III State v. Smith

Each ofthe five police officers on scene described Lance Smith's body movements leading to Lance Smith's assault ofOfficerDrew Florence. OfficerRebecca Jones observed Smith abruptly thrust his upper body into the air. As OfficerJosh Sullivan checked Smith's handcuffs, he saw Smith tense andjump, characterizing the jump as a mule kick. Officer Joe Brazeautestified that Smith leaptup, swung his head, and struck OfficerFlorence in the face. Officer Jason Crouch declared that Smith lunged forward and struck OfficerFlorence in the head with his forehead. Florence, the victim, told thejurythat Smith reared and swung his head to strike Florence under the eye. Florence also relayed a conversation between Smith and his physician, during which Smith commented that he had head butted a police officer. From this evidence, a rational trier offact could infer intent. The State also provided evidence ofLance Smith's demeanor and actions toward the otherpolice officers during the encounter that support a finding ofintent. Officer Joe Brazeau, the first officer on the scene, described Smith as agitated and as exhibiting aggressive behavior on questioning. Smith's conductprogressively worsened. Brazeau detailed Smith's resistance to arrest and the difficulty involved in handcuffing Smith when he struggled to escape. CONCLUSION We affirm Lance Smith's conviction for third degree assault.

11No. 34153-4-111 State v. Smith

A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:



## j

12