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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 66634-7-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
DAMON RASHAURD SMITH,                       )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: June 11, 2012

       Lau, J.  --  Damon Smith appeals his convictions for attempting to elude, third 

degree assault, and resisting arrest.  He argues that (1) insufficient evidence supports 

his resisting arrest conviction, (2) the convictions for third degree assault and resisting 

arrest violate double jeopardy, (3) the trial court erred in allowing a state trooper to 

testify about Smith's obscene gestures and comments, and (4) the court erroneously 

imposed 120 days of confinement for his resisting arrest conviction.  Finding no error, 

we affirm the convictions but accept the State's concession of error regarding Smith's 

sentence for resisting arrest and remand for resentencing to conform with RCW 

9A.20.021(3).      

                                            FACTS

       On May 28, 2010, Trooper Michael Stracke was patrolling Interstate 5 in Seattle.   

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Stracke was in full uniform and drove a traditionally marked state patrol car.  Around 

11 p.m., he noticed a light-colored Thunderbird traveling northbound at high speed.  He 

watched as the Thunderbird swerved and nearly hit a semi truck.  Stracke pursued the 

Thunderbird at speeds over 90 miles per hour.  He pulled within two car-lengths of the 

Thunderbird and activated his emergency lights.  The Thunderbird slowed and exited at 

Northgate Way but failed to stop.  Stracke followed it onto First Avenue Northeast and 

through the Northgate Mall parking lot with his emergency lights and siren on.  He 

called for backup when the Thunderbird failed to stop.  He also used his loudspeaker to 

order the driver to pull over.  The Thunderbird failed to pull over, ran a stop sign, and 

accelerated out of the parking lot.    

       The Thunderbird continued north on First Avenue Northeast, accelerating to 40

to 50 miles per hour in a 35 mile per hour zone.  Stracke testified that at one point the 

Thunderbird went around a vehicle stopped at a traffic signal, cut in front of it, and ran 

through the traffic signal without stopping.  Stracke continued to pursue with his lights 

and siren on.  The Thunderbird continued on 117th Street, ran through a stop sign and 

a roundabout at high speed, and went into a ditch.  The driver regained control, ran 

another stop sign, and turned onto Meridian Avenue.  The Thunderbird stopped on 

Meridian.  Stracke testified that a subsequent investigation revealed its fuel tank was 

empty. 

       Trooper Dominic Ledesma had responded to Stracke's call for backup and 

caught up when the Thunderbird stopped.  The driver, Damon Smith, exited the 

Thunderbird with his hands up.  Ledesma and Stracke got out of their cars, drew their 

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guns, and pointed them at Smith.  Smith nonchalantly asked what was wrong, and the 

troopers ordered him to get on the ground.1 Smith failed to comply.  Stracke holstered 

his gun and approached Smith while Ledesma covered him.  Stracke attempted a 

"control tactic" by grabbing and locking Smith's arm.  Smith resisted by pulling his arm 

away and slipping out of his jacket to free himself from Stracke's grasp.  Smith then 

pushed Stracke in the face and raised his right fist to strike Stracke.  Stracke 

disengaged as Smith swung at him.  

       Smith then ran about 15 to 20 feet across the street and turned to face the 

troopers again.  Both troopers used their stun guns to subdue him.  Ledesma 
handcuffed Smith, and Stracke advised him of his Miranda2 rights and attempted to 

remove the stun guns' probes from Smith's skin.  Smith continued to struggle with the 

troopers as they handcuffed him and removed the probes.  Stracke observed signs that 

Smith was intoxicated and opined that Smith was under the influence of alcohol.  Smith 

refused to answer Stracke's questions or consent to a breath test.  

       After a medical evaluation at Harborview Medical Center, Smith was booked into 

jail.  While Stracke was writing an incident report at the jail, he overheard Smith tell 

other people in the holding cell that he intentionally swung at Stracke.  Stracke also 

testified that throughout his encounter with Smith, Smith laughed, joked, and made 
obscene gestures in an attempt to offend him.3  

       1 At no time did the troopers explicitly tell Smith he was under arrest.  

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

       3 During pretrial motions the gestures were described as "simulating 

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       The State charged Smith with attempting to elude a pursuing police vehicle, third 

degree assault, driving while under the influence (DUI), obstructing a law enforcement 

officer, and resisting arrest.  The jury found Smith guilty of attempting to elude, third 

degree assault, and resisting arrest and acquitted him of DUI and obstructing.  The 

court imposed a standard range sentence of four months' confinement for attempting to 

elude and third degree assault.  The court imposed a one-year suspended sentence 

with four months' confinement for resisting arrest.  All terms of confinement were to be 

served concurrently.  Smith appeals.

                                          ANALYSIS

       Sufficiency of the Evidence

       Smith argues that the evidence was insufficient to find that he intentionally 

resisted arrest.  Specifically, he argues that because the troopers did not announce 

that they were arresting him, the State failed to prove he knew he was under arrest.  

The State counters that ample evidence shows Smith knew he was being arrested and 

intentionally resisted.

       Evidence is sufficient to support a conviction if, viewed in the light most 

favorable to the State, it permits any rational trier of fact to find the essential elements 

masturbation" and calling jail staff "sweetie."  RP (Dec. 15, 2010) at 71.  The court 
granted Smith's motion in limine to exclude the evidence, but the court's ruling was 
unclear as to whether it excluded any reference to Smith's comments and gestures or 
merely excluded what the specific gestures and comments were.  Smith objected when 
Stracke testified about the "obscene gestures and comments," and a resulting sidebar 
was not transcribed for the record.  RP (Dec. 20, 2010) at 13.  There was no motion to 
strike, no motion for mistrial, and no further objection when Stracke referenced the 
gestures and comments again later in his testimony.    
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of the crime beyond a reasonable doubt.  State v. Salinas, 119 Wn.2d 192, 201, 829 

P.2d 1068 (1992).  "A claim of insufficiency admits the truth of the State's evidence and 

all inferences that reasonably can be drawn therefrom."  Salinas, 119 Wn.2d at 201.  

Circumstantial and direct evidence are equally reliable.  State v. Moles, 130 Wn. App. 

461, 465, 123 P.3d 132 (2005).  We defer to the trier of fact on issues of conflicting 

testimony, witness credibility, and persuasiveness of the evidence.  State v. Fiser, 99 

Wn. App. 714, 719, 995 P.2d 107 (2000).  

       A person is guilty of resisting arrest if he "intentionally prevents or attempts to 

prevent a peace officer from lawfully arresting him." RCW 9A.76.040.  A person acts 

intentionally if he "acts with the objective or purpose to accomplish a result which 

constitutes a crime." RCW 9A.08.010(1)(a).  The accused's specific criminal intent may 

be inferred from his conduct "where it is plainly indicated as a matter of logical 

probability."  State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).  "'One may 

resist arrest by various types of conduct.'"  State v. Ware, 111 Wn. App. 738, 745, 46 

P.3d 280 (2002) (quoting State v. Williams, 29 Wn. App. 86, 92, 627 P.2d 581 (1981)).    

       Relying on State v. Bandy, 164 Wash. 216, 2 P.2d 748 (1931), Smith argues that 

"it was incumbent upon the trooper to inform Mr. Smith he was under arrest."  

Appellant's Br. at 10.  Bandy is inapposite.  In that case, our Supreme Court overturned 

the defendant's conviction for obstructing or interfering with an officer in the 

performance of his duty.  Bandy, 164 Wash. at 221.  The court emphasized that "it is 

essential that accused have knowledge that the person obstructed is an officer; 

consequently it is incumbent on an officer, seeking to make an arrest, to disclose his 

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official character, if not known to the offender."  Bandy, 164 Wash. at 219 (emphasis 

added).  In Bandy, no evidence indicated that the officers wore badges or any other 

clothing to signify they were officers, and under the circumstances, nothing else 

indicated to the defendant that the persons obstructed were officers.  Bandy, 164 

Wn.2d at 219-221.  The court thus concluded that insufficient evidence supported the 

conviction.  Bandy, 164 Wn.2d at 221. 

       In contrast, here, the evidence was sufficient to convince a rational trier of fact 

that Smith knew he was under arrest and intended to resist.  Stracke pursued Smith in 

a marked police car with its lights and siren activated and used his loudspeaker to 

order Smith to pull over.  Smith fled at high speed, ran several traffic signals, and 

stopped only when his car ran out of gas.  When he exited the Thunderbird, he 

immediately put his hands in the air -- thus, his behavior indicates he knew he was 

being arrested.  The troopers were both in uniform and drew their guns.  They pointed 

their guns at Smith and ordered him to get on the ground.  Stracke attempted to gain 

physical control of Smith, who resisted and ran away.  Smith continued struggling when 

the troopers handcuffed him and attempted to remove the stun gun probes.  The facts 

support the reasonable inference that Smith knew the troopers were acting in their 

official capacity and he intentionally resisted arrest. 

       Double Jeopardy

       Smith argues that his third degree assault and resisting arrest convictions violate 

double jeopardy.  The State counters that the subsection of third degree assault under 

which Smith was charged is different in law and fact from resisting arrest.

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       The double jeopardy clause of the Fifth Amendment to the United States 

Constitution and article I, section 9 of the Washington State Constitution protect a 

defendant against multiple punishments for the same offense. State v. Calle, 125 

Wn.2d 769, 775, 888 P.2d 155 (1995).  State v. Freeman, 153 Wn.2d 765, 771-73, 108 

P.3d 753 (2005), sets forth the framework for the double jeopardy analysis.  Freeman

requires us to first look to whether there is either express or implicit legislative intent 

authorizing cumulative punishment.  Subject to constitutional restraints, the legislature 

has the power to define crimes and assign punishment. Calle, 125 Wn.2d at 776. If 

the intent is clear and the legislature authorizes "cumulative punishments" under two 

different statutes, "then double jeopardy is not offended" and the court's double 

jeopardy analysis is at an end.  Freeman, 153 Wn.2d at 771.

       If legislative intent is unclear, we proceed to the second step of the double 

jeopardy analysis -- the "same elements" test under Blockburger v. United States, 284 

U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The Blockburger test asks whether 

the offenses are the same in law and fact.  Calle, 125 Wn.2d at 777.  If each crime 

contains an element the other does not, we presume the crimes are not the same for 

purposes of double jeopardy. Blockburger, 284 U.S. at 304; Calle, 125 Wn.2d at 777.

       Smith argues that resisting arrest is a lesser included offense of third degree 

assault and, thus, the two crimes are the same in law and fact.  We disagree.  As 

discussed above, resisting arrest requires proof that a person intentionally prevented or 

attempted to prevent a peace officer from lawfully arresting him.  RCW 9A.76.040.  

Smith was charged with third degree assault under RCW 9A.36.031(1)(g).  Under that 

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subsection, a person is guilty of third degree assault if, under circumstances not

amounting to first or second degree assault, he "[a]ssaults a law enforcement officer or 

other employee of a law enforcement agency who was performing his or her official 

duties at the time of the assault." RCW 9A.36.031(1)(g).  Third degree assault as 

charged here does not require the State to prove the defendant had specific intent to 

resist arrest.  And resisting arrest does not require proof of an assault.  Because each 

crime requires proof independent of that required for the other, the two crimes are not 
the same in law for purposes of double jeopardy.4  Blockburger, 284 U.S. at 304; Calle,

125 Wn.2d at 777.

       Smith also argues the prosecutor relied on the same facts to support both 

convictions.  This argument fails for two reasons.  First, charged offenses may be 

identical in fact -- i.e, arise from the same act -- but be considered different offenses for 

double jeopardy purposes because they are not identical in law.  Calle, 125 Wn.2d at 

778.  As discussed above, each offense charged here includes an element not included 

in the other and, thus, the offenses are different for double jeopardy purposes.  

       4 Smith cites State v. Godsey, 131 Wn. App. 278, 127 P.3d 11 (2006) for the 
proposition that the elements of third degree assault and resisting arrest are the same 
because resisting arrest is a lesser included offense of third degree assault.  But 
Godsey compared a different subsection of the third degree assault statute -- RCW 
9A.36.031(1)(a) -- to resisting arrest.  Godsey, 131 Wn. App. at 289.  Third degree 
assault under that subsection required the State to prove that the defendant, "'[w]ith 
intent to prevent or resist the execution of any lawful process or mandate of any court 
officer or the lawful apprehension of himself or another person, assault[ed] another.'"  
Godsey, 131 Wn. App. at 289 (alterations in original) (quoting RCW 9A.36.031(1)(a)).  
Smith was charged under a different subsection -- RCW 9A.36.031(1)(g) -- and 
Godsey's holding that resisting arrest is a lesser included offense of subsection (1)(a) 
does not apply here.  
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       Second, while some of the evidence overlapped, we conclude the prosecutor 

treated (1) Smith's failure to comply with the troopers' instructions and act of fleeing 

from the troopers and (2) Smith's actions in pushing and swinging at Stracke as 

separate offenses and argued that theory of the case to the jury.  See Report of 

Proceedings (RP) (Dec. 20, 2010) at 73-74 (arguing Smith assaulted Stracke when he 

pushed Stracke in the face and swung at him); RP (Dec. 20, 2010) at 74-75 (arguing 

Smith resisted arrest when he exited his vehicle knowing the troopers were pointing 

guns at him and telling him to get on the ground, failed to comply, and ran away from 

the troopers).  The convictions for third degree assault and resisting arrest do not 

violate double jeopardy.

       Evidence of Obscene Comments and Gestures

       Smith argues that the trial court erred in permitting the State to elicit testimony 

that he made obscene gestures and comments throughout his encounter with Stracke.  

The State counters that the evidence was relevant to the charged crimes, Smith failed 

to preserve error, and any error was harmless.

       Smith analyzes this claimed error under ER 404(b), which provides:  

       Evidence of other crimes, wrongs, or acts is not admissible to prove the 
       character of a person in order to show action in conformity therewith.  It may, 
       however, be admissible for other purposes, such as proof of motive, opportunity, 
       intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

"This list of other purposes for which such evidence of other crimes, wrongs, or acts 

may be introduced is not exclusive."  State v. Baker, 162 Wn. App. 468, 473, 259 P.3d 

270, review denied, 173 Wn.2d 1004 (2011).

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       A trial court must state its reasoning on the record when admitting ER 404(b) 

evidence.  State v. Jackson, 102 Wn.2d 689, 693, 689 P.2d 76 (1984).  "To justify the 

admission of prior acts under ER 404(b), there must be a showing that (1) the evidence 

serves a legitimate purpose, (2) the evidence is relevant to prove an element of the 

crime charged, and (3) the probative value outweighs its prejudicial effect."  State v. 

Magers, 164 Wn.2d 174, 184, 189 P.3d 126 (2008).  We review a trial court's decision 

to admit evidence under ER 404(b) for abuse of discretion.  Baker, 162 Wn. App. at 

473.  A trial court abuses its discretion when its decision is manifestly unreasonable or 

based on untenable grounds or reasons.  State v. Dixon, 159 Wn.2d 65, 75-76, 147 

P.3d 991 (2006).  

       Smith moved in limine to exclude evidence of other misconduct, specifically that 

he allegedly called jail staff "sweetie" and simulated masturbation while in the jail 

holding cell.  The court concluded the evidence was more prejudicial than probative 

and excluded it.  During trial, Trooper Stracke testified that Smith made "obscene 

gestures and comments" in the holding cell.  RP (Dec. 20, 2010) at 13.  Smith initially 

objected to this testimony and requested a sidebar.  After the sidebar, Stracke 

referenced Smith's obscene comments and gestures several more times without 

objection from Smith.  

       Smith contends the admission of Stracke's testimony violated ER 404(b) and 

denied him a fair trial.  But a transcript of the sidebar does not appear in the record on 

appeal.  We cannot review a ruling in the absence of a record.  State v. McFarland, 127 

Wn.2d 322, 335, 899 P.2d 1251 (1995). Here the record does not reflect the trial 

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court's ruling or Smith's arguments.  Smith failed to create a sufficient record for review.5        

       Community Custody

       Smith argues, and the State concedes, that the trial court erroneously imposed 
120 days' confinement for his resisting arrest conviction.6 The parties agree that 

resisting arrest is a simple misdemeanor under RCW 9A.76.040(2), punishable by a 

maximum of 90 days' confinement under RCW 9A.20.021(3).

                                        CONCLUSION

       Because (1) sufficient evidence supports Smith's resisting arrest conviction,

(2) his convictions for resisting arrest and third degree assault do not violate double 

jeopardy, and (3) Smith failed to create a sufficient record for review regarding 

admission of Trooper Stracke's "obscene gestures and comments" testimony, we affirm 

his convictions but remand for resentencing on the resisting arrest conviction to 

conform with RCW 9A.20.021(3).

WE CONCUR:

       5 Further, Smith waived any challenge by failing to object to Stracke's 
subsequent testimony concerning obscene comments and gestures.  Smith did not
request that the testimony be stricken or move for a mistrial.  "Without an objection, an 
evidentiary error is not preserved for appeal."  State v. Davis, 141 Wn.2d 798, 850, 10 
P.3d 977 (2000).

       6 The trial court gave Smith a 12-month suspended sentence for resisting arrest, 
but suspended the sentence on the condition that he serve 4 months in jail.    
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