STATE v. DALLUGE, 147 Wn. App. 1041 (2008)

No. 26116-6-III.The Court of Appeals of Washington, Division Three.
December 2, 2008.

Appeal from a judgment of the Superior Court for Grant County, No. 07-1-00032-4, Evan E. Sperline, J., entered May 1, 2007.

Reversed an remanded by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Sweeney, J.

KORSMO, J.

Christopher Dalluge was charged with several offenses, including intimidating a public servant and resisting arrest, after he ran at officers attempting to question him about a mysterious person ringing a stranger’s doorbell at an apartment building. The trial court dismissed the noted charges on a Knapstad[1] motion, finding that the police contact was improper and that the threats he made against the officers were not an express attempt to influence their actions. Believing that the failure to determine if and when Mr. Dalluge was ever arrested precluded resolution of the resisting arrest charge and that a jury could infer the purpose behind the threats, we reverse the dismissal orders.

FACTS
Mrs. Mary Paige, 18, was home alone in her Moses Lake apartment. At about 12:30 a.m. on January 14, 2007, she saw a man dressed in a trench coat, who was later identified as respondent Christopher Dalluge, outside of her apartment. He walked up and down the staircase. Frightened, Mrs. Paige called 911. While she was on the phone with the 911 operator, the stranger rang her doorbell. He then rang it twice more and left. Meanwhile, police had been dispatched to investigate the situation.

Officer Ricardo Rodriguez found Mr. Dalluge walking down the street near the apartment complex. He stopped his patrol car and got out, asking Mr. Dalluge to talk to him. Mr. Dalluge did not respond to the hail and continued walking away. The officer raised his voice and said: “Hey! Come here, we need to talk to you.”

Mr. Dalluge responded by running at the officer screaming taunts and obscenities at him. Officer Rodriguez ordered Mr. Dalluge to turn around and drop to his knees. When Mr. Dalluge continued to scream, the officer drew his stun gun and repeated the command. Mr. Dalluge took off his trench coat, threw it on the ground, and dropped to his knees, continuing to yell obscenities. The officer handcuffed him and asked Mr. Dalluge what he had been doing. Mr. Dalluge replied that he had been trying to visit his sister who lived in the apartment complex.[2] The officer could smell a strong odor of alcohol coming from Mr. Dalluge.[3]

Officer Rodriguez attempted to explain why he contacted Mr. Dalluge, but Dalluge responded that he was “going to rape” the officer and that he had “fucked pretty bitches like you in prison.” Mr. Dalluge repeated the statements and other taunts to additional officers who responded to the scene. It was decided to put Mr. Dalluge in a patrol car in hopes that he would quiet down and not further disturb the neighborhood. Mr. Dalluge began to physically resist officers who tried to take him to a patrol car by twisting and pulling away. He threatened to kill them. He told them he had DONe time in prison for a drive-by shooting. He claimed to have shot the last person who “DONe him wrong” and these officers were now “doing him wrong.” He did not care if he went back to prison.

He continued to struggle and yell obscenities while being placed in a patrol car. He tried to bite Officer Rodriguez’s hand. He kicked the car door shut and, once inside, continued to kick at the interior of the car. He repeatedly banged his head on the Plexiglas shield, eventually cutting his forehead. He gathered the blood from the head wound into his mouth and then spat it all around the car’s interior. He continued to threaten to rape the officers. The behavior continued en route to a hospital and resumed when he was taken from the hospital to the jail.

He was charged with first degree malicious mischief, two counts of intimidating a public servant, two counts of harassment, and one count of resisting arrest. He filed a Knapstad motion to dismiss the intimidating a public servant charges and a separate motion to dismiss the resisting arrest on the basis that he had been improperly arrested. The trial court granted both motions. In dismissing the resisting arrest charge, the court reasoned that Officer Rodriguez detained Mr. Dalluge when he made his second request to talk to him, and the detention lacked articulable suspicion of criminal wrongdoing. The court also ruled the officers lacked probable cause to arrest Mr. Dalluge for harassment since the threat to rape the officers was not currently capable of being carried out. The court granted the motion to dismiss the intimidating a public servant charges, reasoning that there was no evidence that the threats were made against the officers in order to attempt to influence their actions.[4] The State then appealed the dismissal orders to this court.

ANALYSIS Resisting Arrest. A person commits the crime of resisting arrest when he or she “intentionally prevents or attempts to prevent a peace officer from lawfully arresting him.” RCW 9A.76.040(1). Since it is only a crime to resist a lawful arrest, it is the burden of the prosecution to establish at trial that an arrest was proper. Whether there was a lawful arrest in this case determines whether the resisting charge was properly dismissed.

The parties spend a significant amount of time and energy considering whether or not Mr. Dalluge was seized when the officer attempted to talk to him. However, the relevant question in a resisting arrest case is when Mr. Dalluge was arrested. Unless there was an arrest, there could be no resisting of the arrest. Whether or not Mr. Dalluge was improperly seized at some point simply is not relevant.[5] The question is whether or not he was ever lawfully arrested.

The prosecution argues Mr. Dalluge was arrested when he was forced to his knees and handcuffed after being threatened with a TASER. That is certainly a plausible argument. It also is conceivable that he was not arrested until the time police attempted to remove him to the patrol car. That certainly is when the resisting behavior started. Law enforcement did not tell Mr. Dalluge he was under arrest until the resisting behavior was in progress.

The trial court did not expressly find when Mr. Dalluge was arrested. The court noted that if it was during the transportation process, it could only be for the crime of harassment, and the court did not seem to believe probable cause existed at that point to believe that the threats could be carried out. The court did not address the prosecution’s argument that Mr. Dalluge was arrested for assaulting the officer by running up and threatening him. It also is conceivable that he could have been validly arrested for disorderly conduct. It also is equally conceivable that officers never arrested Mr. Dalluge at all.

Without findings on whether or not Mr. Dalluge was arrested, when he was arrested, and why he was arrested, we simply cannot resolve this issue on appeal. The focus of the parties and court on the seizure issue instead of the arrest issue leaves this matter unresolved in our minds. Accordingly, we reverse the order of dismissal and remand for further proceedings without prejudice to the court’s ability to dismiss the charge again dependent upon its resolution of the arrest issue.

Intimidating a Public Servant. The trial court dismissed the two intimidating a public servant charges on the basis that there was no evidence the threats made against the officers were DONe for the purpose of influencing their official actions. We believe our recent decision i State v. Montano, ___Wn. App. ___, ___ P.3d ___ (No. 26124-7-III, Nov. 25, 2008), governs this case as well.[6]

In Montano, the defendant had been arrested for domestic violence and began resisting the arrest and threatening the officer who took him into custody. The threats continued throughout the transport to the jail. Id., slip op. at 2. The trial court had dismissed the charge prior to trial under Knapstad on the basis that there was no evidence that the threats were intended to influence the officer’s actions. Id., slip op. at 2-3. This court reversed that decision, noting that although the evidence was weak, because the threats began after the officer had taken the official action of arresting the defendant, it would be permissible for the trier-of-fact to draw the inference that the threats were designed to influence that action. Id., slip op. at 6. While it was at least as likely that the defendant’s threats were just the result of anger at being arrested, it was the job of the trier-of-fact to make a decision about why the threats were made. Id., slip op. at 6-7.

We think the same result governs here. Mr. Dalluge began threatening Officer Rodriquez as soon as he tried to question him about the apartment complex. A rational trier-of-fact could believe that the threats were designed to make the officer drop the investigation. Although it appears far more likely that the threats resulted from a drug and alcohol induced rage, that does not mean that the trier-of-fact could not conclude differently. More threats were made after two officers took the official action of attempting to place Mr. Dalluge in the back of the patrol car and continued while he was transported to the hospital and the jail. Again, the jury is free to believe or not believe that the threats were designed to stop those actions.

We believe that the trial court erred in granting the Knapstad motion in this case. Accordingly, we also reverse the dismissal of these two counts. All three matters are remanded for further proceedings.

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

SCHULTHEIS, C.J. and SWEENEY, J., concur.