Opinion Information Sheet

			

                                                                    FILED

                                                                FEB 07, 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

STATE OF WASHINGTON,                                      No.  29474-9-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
LINDA KAY TOSCANO,                              )
                                                )         PUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  This appeal follows convictions for intimidating a public servant,

two counts of second degree assault, and attempting to elude a pursuing police vehicle.  

The defendant used her car to block, or attempt to block, a car driven by a sheriff's 

deputy who was pursuing her nephew.  We conclude based on our reading of Supreme 

Court authority that the facts here do not support the conviction for intimidating a public 

servant but do support the convictions for the two counts of second degree assault.  We 

therefore reverse the conviction for intimidating a public servant and affirm the

convictions for the two counts of assault. The defendant did not appeal the attempting to 

elude conviction.  

No. 29474-9-III
State v. Toscano

                                            FACTS

       This prosecution follows two near collisions between Grant County Deputy 

Sheriff Tyson Voss and Linda Kay Toscano in Warden, Washington, in the early morning 

of March 30, 2009. Deputy Voss saw Michael Castoreno commit a traffic infraction and 

he turned on his emergency lights to stop him.  Mr. Castoreno is Ms. Toscano's nephew.  

Mr. Castoreno did not stop and Deputy Voss gave chase.  Ms. Toscano backed her car 

out of a driveway at 912 Adams Street in Warden.  Deputy Voss drove south and Ms. 

Toscano drove north on the same street.  Ms. Toscano drove left toward the middle of the 

street and toward Deputy Voss; she refused to yield the right of way to him.  Deputy 

Voss has special training in emergency vehicle operation, including "evasive maneuvers 

and high speed patterns."  Report of Proceedings (RP) at 45.  He took evasive action to 

avoid colliding with Ms. Toscano.  He had a couple seconds to react on the gravel road.

       Deputy Voss encountered Ms. Toscano again.  Mr. Castoreno turned right to 

another street.  Ms. Toscano then "darted" into the intersection to block the intersection 

and directed her high beams at Deputy Voss, which made it difficult for him to see.  

Deputy Voss again changed his course to avoid colliding with Ms. Toscano.  Corporal 

Gary Mansford saw Ms. Toscano's car pull into the intersection "like it was going to hit"

Deputy Voss and he saw Deputy Voss swerve to avoid her.  RP at 173.  Mr. Castoreno 

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No. 29474-9-III
State v. Toscano

pulled into the driveway of 912 Adams Street, got out of the car, and ran.  Ms. Toscano 

pulled up to 912 Adams Street soon after.  Deputy Voss arrested Mr. Castoreno and Ms. 

Toscano.  Ms. Toscano reported that she was looking for a missing dog.  

       The State charged Ms. Toscano with intimidating a public servant, second degree 

malicious mischief (for an incident that occurred after the pursuit), attempting to elude a 

pursuing police vehicle, and two counts of second degree assault -- one for each encounter 

with Deputy Voss during the pursuit.  

       The court instructed the jury on the elements of intimidating a public servant and 

defined the relevant terms for the jury.  A jury found her guilty of each charge except for 

the malicious mischief.  

                                        DISCUSSION

       Ms. Toscano appeals and challenges both of her second degree assault convictions, 

and the intimidating a public servant conviction.  

Sufficient Evidence -- Second Degree Assault Charge

       Ms. Toscano first contends that the State failed to prove either second degree 

assault because it did not prove that Ms. Toscano had a specific intent to cause 

apprehension or that Deputy Voss had apprehension of fear of future bodily injury.  She 

argues that simply being "in the way" of Deputy Voss is not enough to show that she 

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No. 29474-9-III
State v. Toscano

intended to cause him apprehension and, moreover, Deputy Voss only had fear in 

hindsight.  

       We review to determine whether substantial evidence supports the jury's verdict.  

State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000).  

       Second degree assault means to "assault[] another with a deadly weapon." RCW 

9A.36.021(1)(c).  Common law, not the criminal code, supplies several definitions of 

assault.  State v. Wilson, 125 Wn.2d 212, 217-18, 883 P.2d 320 (1994).  One of these 

definitions is "'putting another in apprehension of harm whether or not the actor intends 

to inflict or is capable of inflicting that harm.'"  Wilson, 125 Wn.2d at 218 (quoting State 

v. Bland, 71 Wn. App. 345, 353, 860 P.2d 1046 (1993)).  This is the definition of assault 

at issue here.

       Assault requires specific intent to create the apprehension of harm.  State v. Krup, 

36 Wn. App. 454, 458, 676 P.2d 507 (1984).  We conclude that a jury could have 

inferred the necessary intent from the State's showing here.  Ms. Toscano first turned her 

car into the middle of a gravel road and toward Deputy Voss's patrol car and refused to 

yield.  Ms. Toscano then "darted" into the intersection with her high beams on "like she 

was going to hit" Deputy Voss.  RP at 60, 173.  The jury could have inferred that she 

drove in this manner because it was likely to cause a crash and would certainly make 

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No. 29474-9-III
State v. Toscano

Deputy Voss afraid of crashing.

       Ms. Toscano relies on Bland to argue that the evidence was insufficient to prove 

that Deputy Voss feared harm.  71 Wn. App. at 348-49.  In Bland, the defendant shot at a 

moving car and a stray bullet went through the living room window of Mr. Carrington, 

who was asleep in a recliner.  The bullet missed his head by inches.  Id. Mr. Carrington 

was "shocked and startled," but only after the incident, when he realized how close the 

bullet came to his head.  Id. at 349.  The court held that Mr. Bland's conviction for 

second degree assault of Mr. Carrington could not stand because apprehension of harm 

was an element.  Apprehension means "worry and fear about the future; a presentiment of 

danger."  Id. at 356 (citing Webster's Third New International Dictionary 106 (1976)).  

Mr. Carrington was incapable of worrying about or being afraid of any imminent danger 

because he was asleep when the bullet entered his window.  Id. at 355.  

       Ms. Toscano argues that Deputy Voss, like Mr. Carrington, did not apprehend

harm.  Specifically, Ms. Toscano argues that he did not apprehend harm in the first 

encounter because Deputy Voss did not believe Ms. Toscano intentionally blocked him 

until after the second incident.  Br. of Appellant at 11.  Ms. Toscano suggests that this is 

analogous to the facts in Bland where Mr. Carrington did not realize the danger until after 

the danger had past.  The facts in Bland, however, are distinguishable.  Deputy Voss was 

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No. 29474-9-III
State v. Toscano

not asleep, unaware of the defendants' actions, and incapable of fearing the consequences 

of those actions.  

       Ms. Toscano also argues that her driving could not evoke the necessary fear 

because Deputy Voss was a seasoned police officer with special training in high speed 

evasive maneuvers.  Br. of Appellant at 15.  Here there is evidence that Deputy Voss had 

apprehension of harm despite his experience as a police officer.  In both encounters, he 

had to avoid collisions.  The jury could have easily inferred from Deputy Voss's actions 

that he was afraid of crashing into Ms. Toscano's car.  We will defer to the jury on the

persuasiveness of the evidence here.  State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 

533 (1992).  

Intimidating a Public Servant

        To prove the crime of intimidating a public servant the State must show that "by 

use of a threat, [the defendant] attempt[ed] to influence a public servant's vote, opinion, 

decision, or other official action as a public servant." RCW 9A.76.180(1).  There are two 

elements to this crime: (1) intent to influence a public servant's official action and (2) a 

threat.  State v. Montano, 169 Wn.2d 872, 879, 239 P.3d 360 (2010).  

       Ms. Toscano contends that the State did not show, and the evidence does not 

support, either element of intimidation of a public servant.  First, she notes that the State 

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No. 29474-9-III
State v. Toscano

must show that she made a "true threat" and that requires a statement.  Here she claims 

she did not make any statement to Deputy Voss; she drove her car.  So she could not have 

urged him to do anything, one way or the other.  

       The State responds that there is more than one way to communicate a threat and 

here Ms. Toscano's conduct spoke volumes about what she intended. 

       The question then is whether the conduct here meets one of the statutory 

definitions of threat.  The relevant definitions of threat here include "to communicate, 

directly or indirectly the intent:

       ?      To immediately use force against any person who is present at the time.  
              RCW 9A.76.180(3)(a).

       ?      To cause bodily injury in the future to the person threatened or to any other 
              person.  Former RCW 9A.04.110(27)(a) (2007). 

       ?      To cause physical damage to the property of any person other than the 
              person making the threat.  Former RCW 9A.04.110(27)(b). 

       ?      To do any other act which is intended to harm substantially the person 
              threatened or another with respect to his health, safety, business, financial 
              condition, or personal relationship.  Former RCW 9A.04.110(27)(j).

       We interpret statutes to carry out the legislative purpose.  State v. Sullivan, 143 

Wn.2d 162, 174-75, 19 P.3d 1012 (2001).  "When a statute is unambiguous, it is not 

subject to judicial construction and its meaning must be derived from the plain language 

of the statute alone."  Id. at 175.  A statute's meaning is a question of law and our review 

is therefore de novo.  State v. J.M., 144 

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No. 29474-9-III
State v. Toscano

Wn.2d 472, 480, 28 P.3d 720 (2001).  

       Ms. Toscano's essential argument is that her nonverbal conduct could not have 

been a threat.  She relies on State v. Stephenson to argue that she did not threaten the 

officer because she never made a "verbal statement."  89 Wn. App. 794, 950 P.2d 38

(1998).  Stephenson is distinguishable on its facts.  There the defendant sent threatening 

letters to superior court judges.  Id. at 798-99.  Mr. Stephenson's essential challenge on 

appeal was that the intimidating a public servant statute was overbroad.  Id. at 799.  That 

is not the issue here.  

       All the statutory definitions of "threat" require that the threat "communicate."  

Intimidating a public servant has only been applied to a nonverbal threat in one case.  See 

State v. Burke, 132 Wn. App. 415, 417-18, 132 P.3d 1095 (2006) (concluding that Mr. 

Burke's "physical behavior" met the statutory definition of "threat" when he took a 

"fighting stance" with raised fists).  Other cases addressing the statute involve clear 

verbal threats.  See Montano, 169 Wn.2d at 875 (telling police officer "'I know when you 

get off work, and I will be waiting for you'" and "'I'll kick your ass'"); State v. Avila, 

102 Wn. App. 882, 887, 10 P.3d 486 (2000) (telling teacher that he was going to "'blow 

off [the teacher's] f -- g head'"); Stephenson, 89 Wn. App. at 798 (mailing superior court 

judges threats to file $8 million liens on their property if they failed to meet demands).

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No. 29474-9-III
State v. Toscano

       So, for there to be a threat there must also be communication.  In Burke, the 

defendant's "fighting stance" with raised fists certainly communicated his intent to 

intimidate.  Ms. Toscano's actions alone -- failing to yield to a police officer and blocking 

an intersection -- are for us not forms of communication.  "Communication" is "[t]he 

expression or exchange of information by speech, writing, gestures, or conduct; the 

process of bringing an idea to another's perception."  Black's Law Dictionary 296 (8th 

ed. 2004).   Ms. Toscano was not expressing information to or exchanging information 

with Deputy Voss.  In context, her actions suggest that she wanted to hurt Deputy Voss or 

interrupt his chase of Mr. Castoreno, but wanting a particular result is not 

communication.  Unlike Mr. Burke, Ms. Toscano's actions are not clear nonverbal 

communication.  See Burke, 132 Wn. App. at 417-18.  The evidence here is insufficient 

to support the threat element of intimidating a public servant.  

       Our application of the statute here also furthers the legislative purposes of RCW 

9A.76.180.  The statute's plain language suggests three purposes:

       First, it protects public servants from threats of substantial harm based upon 
       the discharge of their official duties. . . .  Second, it protects the public's 
       interest in a fair and independent decision-making process consistent with 
       the public interest and the law.  And third, by deterring the intimidation and 
       threats that lead to corrupt decision making, it helps maintain public 
       confidence in democratic institutions.  

Stephenson, 89 Wn. App. at 803-04.  

       The statute is not intended to punish 

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No. 29474-9-III
State v. Toscano

displays of anger or threats alone.  Montano, 169 Wn.2d at 879 (reversing conviction for 

intimidating a public servant arising out of breaking free from an arresting officer, 

grabbing him, and threatening to beat him up); see Burke, 132 Wn. App. at 421-22 

(holding that "physical attack," yelling profanities, and making "fighting threats" were 

not enough to prove intent to influence a police officer who was shutting down a house 

party).  In Montano, the court explained that treating a police officer inappropriately does 

not always amount to intimidating a public servant:

       The evidence arguably shows that Montano resisted arrest, and charging 
       him with that crime is appropriate.  But the State cannot bring an 
       intimidation charge any time a defendant insults or threatens a public 
       servant.  Though such behavior is certainly reprehensible, it does not rise to 
       the level of intimidation.  The legislature held the same view, as evidenced 
       by its inclusion in the statute the requirement that the defendant must 
       threaten with the "'attempt[] to influence a public servant's . . . official 
       action.'"  

Montano, 169 Wn.2d at 879 (quoting RCW 9A.76.180(1)).  

       The facts here do not fit within the class of those the legislature intended to 

punish.  None of the intimidation statute's three purposes would be furthered by 

application of the statute here.  Ms. Toscano went beyond threatening substantial harm to 

Deputy Voss.  She actually assaulted him with a deadly weapon, her car.  Nor do the 

facts here implicate fair and independent decision-making or corruption by Deputy Voss.  

       Ms. Toscano's conduct also strikes us as more akin to a display of anger (Montano 

and Burke) than an attempt to influence.  

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No. 29474-9-III
State v. Toscano

Ms. Toscano assaulted this officer and she attempted to block his path.  She physically 

tried to stop the deputy.  It seems to us that, if physically confronting an officer and 

yelling threats at him is not enough to show an attempt to influence, then a physical 

confrontation without threats is also not enough.  

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No. 29474-9-III
State v. Toscano

       We reverse the conviction for intimidating a public servant and affirm the 

convictions for assault.

                                                    _______________________________
                                                    Sweeney, J.
I CONCUR:

________________________________
Siddoway, J.

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