Court of Appeals Division III
State of Washington
Opinion Information Sheet
| Docket Number: |
30504-0 |
| Title of Case: |
State of Washington v Desmond Bernard Shepard, Jr. |
| File Date: |
05/01/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Cowlitz Superior Court |
| Docket No: | 10-1-00337-9 |
| Judgment or order under review |
| Date filed: | 11/17/2010 |
| Judge signing: | Honorable Jill M Johanson |
JUDGES
------
| Authored by | Dennis J. Sweeney |
| Concurring: | Laurel H. Siddoway |
| Dissenting: | Kevin M. Korsmo |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | David Bruce Koch |
| | Nielsen Broman & Koch PLLC |
| | 1908 E Madison St |
| | Seattle, WA, 98122-2842 |
Counsel for Respondent(s) |
| | Amie L. Hunter |
| | Hall of Justice |
| | Cowlitz Prosecuting Attorneys Office |
| | 312 Sw 1st Ave |
| | Kelso, WA, 98626-1739 |
FILED
MAY 01, 2012
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, No. 30504-0-III
)
Respondent, )
)
v. )
)
DESMOND BERNARD SHEPARD, JR., )
)
Appellant. ) PUBLISHED OPINION
)
)
Sweeney, J. -- Conviction for third degree assault, as charged here, requires a
showing that the defendant used an "instrument or thing likely to produce bodily harm."
RCW 9A.36.031(1)(d). Here, the defendant assaulted his former girl friend by striking
her and pushing her. She struck furniture and was seriously injured. The question before
the court is whether the furniture she struck satisfies the statutory requirement of an
instrument or thing likely to produce bodily harm. Our Supreme Court has already
answered that question in a unanimous opinion in State v. Marohl, 170 Wn.2d 691, 246
No. 30504-0-III
State v. Shepard
P.3d 177 (2010). And, the answer is no. We therefore reverse the conviction for third
degree assault.
FACTS
Desmond Shepard and Natasha Pipgras drank together in Ms. Pipgras's home. Mr.
Shepard became angry. He threw Ms. Pipgras. She struck an armoire. He threw her
again and she struck a dresser and also a child's playpen. The assault resulted in serious
injuries to Ms. Pipgras including bruises to her face, head, and body.
The State charged Mr. Shepard with third degree assault. Mr. Shepard was also
convicted of second and fourth degree assault for other acts of violence that night, and
acquitted of third degree malicious mischief. Since those charges are not at issue in this
appeal, the facts underlying those matters are not discussed here.
A jury convicted Mr. Shepard of third degree assault.
ANALYSIS
Our review is de novo. Marohl, 170 Wn.2d at 697.
As charged here, the State was required to prove that Mr. Shepard, acting with
criminal negligence, caused "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). Mr.
Shepard contends that Marohl establishes that he did not assault Ms. Pipgras with "an
instrument or thing likely to produce bodily harm." The State responds that Mr. Shepard
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No. 30504-0-III
State v. Shepard
used the furniture to assault Ms. Pipgras and that satisfies the requirement of the statute.
The Supreme Court's decision in Marohl resolves the dispute.
In Marohl, the defendant took the victim in a choke hold and both men fell to the
floor. 170 Wn.2d at 696. "The impact with the casino floor caused [the victim] to suffer
bruises and scrapes on his face, and his prosthetic arm broke off above the elbow joint."
Id. The State charged Mr. Marohl with third degree assault under the same statute at
issue here (RCW 9A.36.031(1)(d)) and alleged, and the court later correctly instructed,
that the injuries had to be the result of "'a weapon or other instrument or thing likely to
produce bodily injury.'" Id. The jury found Mr. Marohl guilty, he appealed, and the
Court of Appeals affirmed the conviction. Id. at 697.
The Supreme Court accepted review and reversed the conviction. Id. at 694-95.
And, in doing so, the court made a number of observations and holdings that are
controlling here:
? "Only assaults perpetrated with an object likely to produce harm by its nature or
by circumstances fall within the subsection's [RCW 9A.36.031(1)(d)] purview."
Id. at 699.
? "Thus, an 'instrument or thing likely to produce bodily harm' under RCW
9A.36.031(1)(d) must be similar to a weapon." Id. at 700.
? "RCW 9A.36.031(1)(d) makes no reference to the defendant's use of an
'instrument or thing likely to produce bodily harm.'. . . The casino floor was not
within the scope of RCW 9A.36.031(1)(d)." Id. at 703.
And, even in those jurisdictions whose statutes do consider the actual use of the
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No. 30504-0-III
State v. Shepard
instrument or thing, as opposed to just focusing on the object itself independent of its use,
the court noted that "each defendant in Galvin, Reed, and Montano took hold of the
victim's head and repeatedly struck it against the ground."1 Id. at 702. The evidence
here shows that Mr. Shepard brutally pushed or threw Ms. Pipgras. He did not pick up
the armoire, the dresser, or the playpen or any other object or instrumentality and strike
her with it or deliberately beat her against it. The Supreme Court authority is clear and its
application here is clear -- the furniture "must be excluded from the definition of
'instrument or thing likely to produce bodily harm,'" and the conviction here for third
degree assault, then, must be reversed. Id. at 703.
_________________________________
Sweeney, J.
I CONCUR:
___________________________________
Siddoway, J.
1 People v. Galvin, 65 N.Y.2d 761, 481 N.E.2d 565, 492 N.Y.S.2d 25 (1985);
State v. Reed, 101 Or. App. 277, 790 P.2d 551 (1990); State v. Montano, 1999 NMCA
23, 126 N.M. 609, 973 P.2d 861.
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