Supreme Court Dismisses Prosecution

By Wayne C. Fricke, October 2016

After losing in the trial court and Court of Appeals, we finally prevailed in getting a prosecution dismissed in the Washington Supreme Court, by a 6-3 margin, in the case of State v. Bauer, 329 P.3d 67, 80 Wn.2d 929 (2014). Counting all of the judges that ruled on this issue in the trial court and Court of Appeals, the margin was 7-6.  Ultimately, the Supreme Court agreed that negligence required an affirmative act under the assault statute and that proximate cause had not been established.

The state charged Mr. Bauer with one count of third degree assault pursuant to RCW 9A.36.031(2) based on the following facts. A nine year old child stayed at defendant’s residence during a weekend  to visit his mother, who lived with defendant.  He returned home , but prior to leaving the residence, unbeknownst to defendant, he entered defendant’s bedroom to retrieve his clothes and while inside “swiped” a gun into his backpack.  Two days later he brought the gun to school, where it accidentally discharged, striking a fellow student.

The charge of assault in third degree, as charged in this case is based on RCW 9A.36.031(1)(d), which requires that the defendant act with criminal negligence and that he “did cause bodily harm” to the victim. See WPIC 35.22.  In addressing this issue, we consistently relied upon the Washington State Supreme Court’s holding that words not statutorily defined should be given their ordinary or common meaning.  See  State v. Chester, 133 Wn.2d 15, 22, 940 P.2d 1374 (1997).  Applying the above rule in the context of a sexual exploitation of a minor charge, the Court in Chester reversed the defendant’s conviction because the state did not prove that Chester caused the minor to engage in certain behavior.  In so doing, the Court noted that “’cause’ means to be the cause of, to bring about, to induce or to compel.”  It requires “some affirmative act of assistance, interaction, influence or communication on the part of the defendant which initiates” the result. Id.  Unfortunately, both the trial court and the majority of the Court of Appeals found that Chester was inapplicable to this set of facts. Fortunately, however, the Supreme Court held otherwise and extended the holding, which can now be used for other factual situations. In essence, the Court distinguishing between causing the result and causing another to engage in an act.

Additionally, the Court discussed “proximate cause” in the context of criminal cases.  “Proximate cause” is a legal concept separate and apart from the definition as used in the statute. See e.g. Price v. Kitsap Transit, 70 Wn.App. 748, 756, 856 P.2d 384 (Div. II 1993)(“…`proximate cause’ is a legal concept based on policy considerations.”); See also Herskovits v. Group Health Cooperative of Puget Sound, 99 Wn.2d 609, 637, 664 P. 2d 474 (1983)(“proximate cause is a uniquely legal concept” representing judicial limitations placed upon an actor’s liability for the consequences of his or her conduct.). The Court held that in the criminal context, a more direct connection would need to be established in order to establish criminal culpability.

Left unaddressed by the Court is whether a defendant can be prosecuted for a crime committed by another outside the accomplice liability statute. The Washington Supreme Court noted the limitations set forth by the legislature when it discussed when a person may be criminally liable based on another’s acts in In the Matter of the Forfeiture of One 1970 Chevrolet Chevelle, 166 Wn.2d 834, 842-43, 215 P.3d 166 (2009).  As the court stated:

“… the legislature has established criminal liability based on someone else’s acts, such as proof of aiding and abetting or accessory liability.  RCW 9A.08.020.  Such instances require proof of someone actually doing something to support or facilitate the commission of a crime or actually knowing and assisting in the criminal activity in order to be subject to criminal sanctions.  Perhaps a person should know many things, but often the opposite could be true, like here:  The parents could have just as easily presumed their son’s criminal activities would stop after the first arrest just as they could have suspected their son’s criminal activities would continue.”

Under RCW 9A.08.020 an individual may only be held accountable for the conduct of another under two situations. First, he must cause another to engage in the conduct, something that it not at issue here, because he did nothing to cause another to engage in any conduct.  Secondly, to hold one responsible for another’s conduct one must be an accomplice, which requires knowledge and some agreement to engage in the prohibited activity. RCW 9A.08.020(3)(a).

However, because the Court dismissed the action based on the other arguments, it had no reason to go further, other than to state the defendant could not be found liable under the facts of this case.  Thus, it is an issue that remains to be addressed in future cases.